1. DEFINITIONS AND INTERPRETATIONS
In these standard terms and conditions, unless a clause contains a statement or a provision setting out otherwise;
1.1 Words importing any one gender shall include the other two and words importing the singular shall include the plural and vice versa and references to natural persons will include legal entities and vice versa;
1.2 The following terms shall have the meanings assigned to them hereunder, namely:
1.2.1. Smudge” means Smudge Colour (Pty) Ltd, registration number 2012/0140667/07
1.2.2. “the client” means the person or entity contracting with Smudge in respect of the design of the website; and
1.2.3. “parties” means Smudge and the client who has entered into the agreement with Smudge
1.3 Any reference in this agreement to days, months or years shall be construed as calendar days, months or years and if any number of days is prescribed in the agreement, it shall be calculated excluding the first and including the last day unless the last day falls on a Saturday, Sunday or Public Holiday, in which case the last day shall be the next succeeding day, which is not a Saturday, Sunday or Public Holiday.
2. TERMS AND CONDITIONS
2.1 This document sets out the terms and conditions of the working relationship between Smudge and the client and all projects or services that Smudge may be contracted to produce or provide for the client will be subject to the terms and conditions of the relationship entered into between the parties.
2.2 By the client accepting a quotation issued by Smudge, they are agreeing to be bound by the terms and conditions contained therein.
3.1 All quotations submitted by Smudge in terms of the client’s project specifications, will remain valid for acceptance for a period of 30 days from the date of the quote. Should this quote not be accepted within the 30 day period or no written request for any alteration or extension be received from the client, the quote will expire. Smudge will then no longer be bound by the original quote.
3.2 All quotations are submitted on the condition that the content, text, images and relevant information necessary to design the website will be supplied by the client to Smudge unless otherwise agreed upon.
3.3 Smudge will accept a request to amend a quote if the request is given prior to the expiry date of the original quote and the effect of Smudge amending the quote will be that the original quote given will no longer be valid.
3.4 All quotes issued by Smudge are carefully prepared taking into account the specific technical requirements of each project and, as such, Smudge reserves the right to amend any quote should the project’s specifications change, or if it becomes clear that the project specifications which were originally communicated to Smudge were not originally provided in a clear and correct manner by the client at the time of requesting a quote.
3.5 Should a client not be able to provide a detailed project specification for the work to be done, Smudge reserves the right to quote and to bill for their initial research and planning needed to outline the exact specifications and technical requirements necessary to complete the project. Such research and planning shall be billed according to Smudge’s standard hourly rate.
3.6 Smudge reserves the right to quote and bill for project management if required and this project management will be billed according to the standard hourly rate.
3.7 In order to accept a quote, the client must sign and date the quotation confirming its acceptance and return the signed quote to Smudge either via email or by hand within the 30 day period provided for on the quote document itself. No project will commence unless a formal acceptance, in writing, is received by Smudge within the correct time period.
3.8 If a project has been left dormant for longer than 6 months, Smudge reserves the right to adjust the original cost of the project according to the current hourly rates.
3.9 Project deposits are non refundable after 60 days based on the following:
- Smudge have started the strategy, menu structure, project documentation or design
- Client has not been giving imput or has placed the project on-hold
4. DEPOSIT AND CONFIRMATION OF ORDER
4.1 On formally accepting a quote issued by Smudge, the client shall be responsible for the payment of a 50% deposit of the total amount quoted and Smudge will immediately issue a tax invoice for that amount to the client. Payment is to be made via an electronic fund transfer or cash deposit into Smudge’s account and no payment by cheque will be accepted.
4.2 No project will commence until the 50% deposit has been paid into Smudge’s account and the funds are reflected as clear by Smudge’s bank. In the event that a client causes a delay in the commencement of the project by failing to make the appropriate 50% deposit payment, Smudge shall not be held responsible should the project deadlines not be met.
4.3 A further 30% payment will be required upon Smudge's completion of the coding phase of the project. Once proof of payment has been received, the final phase of coding content into the website shall commence.
5. PROJECT PHASES
5.1 Each phase of the project, as specified in the quotation, will require a formal written acknowledgement of completion and be signed off by the client. Smudge will not proceed with the next phase of the project without receiving the written approval from the client that the previous phase had been received by the client. Smudge reserves the right to place the project on hold until such approval is given, and accepts no responsibility should a deadline of the project not be met due to the failure by the client to approve the previous phase.
5.2 Alterations and additions may be requested at any time during a phase of the development of a project and Smudge will determine whether or not such request falls within the scope of the original project brief and specifications. In the event that the request does not fall within the original brief and specifications, Smudge reserves the right to quote and bill for such alterations and additions in addition to the original amount quoted. In this event, Smudge will require written approval from the client before any work commences.
5.3 The sole responsibility of providing a project brief, and/or specifications in a detailed accurate and concise document remains with the client and Smudge accepts no responsibility for any misunderstanding arising out of a poorly drafted specification document. Smudge reserves the right to charge additional fees for any extra development time incurred as a result of an unclear project brief.
5.4 Once a design has been chosen by the client, four reverts of changes are included. Any additional reverts thereafter will be charged for per hour.
5.5 All copy sent through by client is to be Final Copy. Any changes required to copy after it has been coded in will be charged for per hour.
5.6 Final Menu to be signed off by client. Any changes to menu after signoff and coding will be charged for per hour.
5.7 Websites will be tested and optimised for browsers IE10 and up, Firefox and Chrome. We do not support IE9 or lower.
5.7 Please note that the design once coded may not reflect the exact sign off design as elements (visual elements, design elements, font weight and styling) may change slightly once coded as per the signed off graphic, as items render slightly differently in HTML.
6.1 Smudge is able to assist with web-hosting services through a hosting company of choice and in the event of a client requesting assistance with the hosting of a website, Smudge reserves the right to bill for the additional assistance provided.
6.2 In the event that a client’s website should experience technical difficulty or down time and it is discovered that the source of the difficulty is found to be with the hosting provider, Smudge accepts no responsibility and cannot be held liable for any financial loss suffered by the client as a result.
6.3 The client will arrange that the hosting provider chosen will co-operate fully with Smudge in order to complete the project successfully. Smudge will require the correct FTP details to successfully complete the project. Smudge shall not, without written instructions from the client, or an authorised representative of their client, provide FTP details, database, login or any other confidential information to any party.
6.4 If the client fails to pay for the hosting costs, Smudge is within their rights to suspend the website as well as e-mails and other tools used on the domain.
7. DISCLAIMER FOR LIABILITY
7.1 The client indemnifies and holds Smudge free from any liability in respect of any loss, damage or costs suffered by or arising from:
7.1.1. Any fact or circumstance which is beyond the reasonable control of Smudge; or
7.1.2. Any downtime, outage, interruption or unavailability of any of the services or the Smudge network infrastructure as a result of or attributable to any of the following causes;
18.104.22.168 Software of hardware service, repair, maintenance, upgrades, modifications, alternations, replacement or relocation of premises;
22.214.171.124. The non-performance or unavailability of whatever nature and howsoever arising of any of the services provided by Telkom (including, but not limited to, line failure) or in any international services or remote mail service;
126.96.36.199. The non-performance or unavailability of whatever nature and howsoever arising, of external communications networks through which the client’s server or the Smudge network is connected;
188.8.131.52. The service, repairs, maintenance, upgrades, modification, alterations or replacements of any hardware forming part of the client’s services or any faults or defects of whatsoever nature in such hardware.
7.1.3. Any infringement of the client’s rights of privacy and/or any other like rights (including those of any other persons or entity), arising from the services provided in terms of the agreement;
7.1.4. Any breach of security by any third party or any breach of confidentiality by a third party or otherwise arising from any access howsoever obtained by a third party to the client’s information, data or content;
7.1.5. The damage, contamination or corruption of any kind of the client’s data, material, information and/or content howsoever occasioned;
7.1.6. Any service, repairs, maintenance, upgrades, modifications, alterations, replacement or work of any nature done on the client’s hardware, software or systems by any party other than by Smudge;
7.1.7. Without limiting the aforegoing, any fact, cause or circumstances whatsoever and howsoever arising if Smudge has substantially performed in terms of its obligations under this agreement.
7.2 Smudge reserves the right to take whatever action it deems necessary, at any time, to preserve the security and reliable operation of the Smudge network and the client undertakes that it will not do or permit anything to be done which will compromise the security of the Smudge network.
7.3 While Smudge will use reasonable endeavours to provide disaster recovery if requested, Smudge cannot specify any recovery time, nor shall Smudge be reliable for any loss or damage of whatever nature incurred or suffered by the client from any cause whatsoever as a result of Smudge’s failure to provide, or delay in providing, or providing partial, disaster recovery. The client is therefore advised to make backups of all its data. Nothing contained in this paragraph however should be construed as a representation by Smudge that any backups of data implemented by client will be successful or will in any way avoid disaster.
8. MAINTENANCE AND REPAIR
8.1 Smudge reserved their right to temporarily suspend its obligations in terms of this agreement in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of Smudge’s services. Where possible, Smudge shall use its best endeavours to provide prior notice of any such suspension to the client. The client shall not be entitled to any set off, discount, refund or other credit in respect of such suspension of service nor in respect of any suspension that is beyond Smudge’s control.
9. INTELLECTUAL PROPERTY
9.1 All intellectual property rights vested in or owned by a party or held by a party under any licencing agreement with an independent third party (including but not limited to, intellectual property rights obtained or developed by a party after commencement of this agreement), shall be and remain the sole property of such party and the relevant licences respectively.
9.2 The client shall not be entitled to use any of the trademarks, logos, brand names, domain names or other marks (collectively referred herein as “marks”) of Smudge without the prior written approval of Smudge. The client hereby grants to Smudge a non-exclusive licence to use the client’s marks but only to the extent necessary or required by Smudge to exercise its rights or to fulfil its obligations under this agreement.
9.3 Unless specifically provided for in this agreement, Smudge shall wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all intellectual property rights employed in or otherwise related to the Smudge network infrastructure, the Smudge, network infrastructure, Smudge business and the provisions of any business in terms of this agreement.
9.4 All work done on the project on behalf of the client, inclusive of the copyright which may exist in the work done on behalf of the client shall remain the exclusive property of Smudge, and shall remain on Smudge's servers until all amounts have been paid for.
9.5 On final payments to Smudge off all accounts due, Smudge may be requested to cede and assign the copyright in the work done to the client.
9.6 Smudge is not liable for copy infringements of content supplied by client. Responsibility rests upon the client to provide original content (including images).
9.7 You agree to indemnify, hold harmless and defend at your own expense us from and against any and all Claims for infringement of copyright, patents, trademarks, industrial designs or other intellectual property rights issued under the laws of any country where:
• the copyright, patents, trademarks, industrial designs or other intellectual property were provided by you; or
• you represented, expressly or impliedly, that the copyright, patents, trademarks, industrial designs or other intellectual property were your intellectual property; or
• you had asked us to download or otherwise copy or access or use the copyright, patents, trademarks, industrial designs or other intellectual property.
9.8 You further agree not to provide us with any item nor ask us to download/access/copy/use any item, including but not limited to images, software, computer code and written material, unless you have the legal right to use those items for the purpose our work relates to.
10.1 The parties acknowledge that in connection with these terms and conditions, either party may receive certain confidential or proprietary technical and business information and materials from the other party, including all art work, concepts, sketches, visual presentations or other preliminary designs and documents. Both parties, their agents and employees shall hold and maintain in strict confidence all confidential confirmation and shall not disclose this information to any third party, nor shall they use any confidential information except as may be necessary to perform obligations in terms of the agreement, except as may be required by a court or other such competent authority. Notwithstanding the aforegoing, confidential information shall not include any information that is in the public domain or becomes publically known through no fault of the receiving partner, or as otherwise property received from a third party without an obligation of confidentiality.
11. TERM OF THE AGREEMENT
11.1 The agreement by the client to be bound by these terms and conditions shall commence on the date of acceptance of the quote and shall remain effective until the project is complete and delivered or the project is cancelled.
11.2 The project may be terminated at any time by either party on 14 days written notice, or the mutual agreement of the parties.
11.3 In the event that the project is cancelled before the completion thereof, Smudge shall be entitled to receive payment based on a pro rata portion of the work already done on the project. This will be measured by actual hours spent on the project which may differ from the hours quoted.
11.4 Either party may cancel the agreement on 10 days written notice to the other party (“The defaulting party”), should the defaulting party not rectify their breach within 10 days of written notice calling on it to do so.
11.5 On expiration or termination, as the case may be of the project;
11.5.1. Each party shall return or, at the disclosing party’s request, display any confidential information of the other party given to it, and
11.5.2. Other than provided for herein, all rights and obligations of the parties to the project, shall remain intact.
12. GOVERNING LAW
12.1 These terms and conditions shall be governed by and interpreted with the laws of the Republic of South Africa.