TERMS AND CONDITIONS BINOCOM WEB AND BINOCOM DEVELOPMENT

1. Definitions and Interpretation

The following terms and conditions document is a legal agreement between BinoCom Web and/or development hereafter referred to as “The Developer” and “the Client” for the purposes of web site design or development.

These Terms and Conditions set forth the provisions under which the Client may use the services supplied. The Developer is an Internet web and software design and developing provider offering the following services but not limited to graphical design, HTML, CSS, JavaScript and other related computer programming languages. In this agreement:

  1. clause headings are for convenience and are not to be used in its interpretation;
  2. unless the context indicates a contrary intention:
    1. an expression which denotes:
      1. any gender includes the other genders;
      2. a natural person includes a juristic person and vice versa;
      3. the singular includes the plural and vise versa;
  3. the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
    1. “Agreement” shall mean this document and additional annexed schedules which are incorporated herein together with any future written and executed amendments;
    2. “Client” means the party for whom the Developer is undertaking the development and design of a website, as set out in the quote, invoice or signed documents;
    3. “Code” means HTML computer programming / formatting code, any files necessary to make image maps function and any server code necessary to make forms, buttons, check-boxes, and the like function;
    4. “Deliverables” means the work product prepared by the Developer for delivery to Client in terms of this Agreement and includes all Code, Documentation, reports, other materials developed by Developer in the course of this Agreement and any other items necessary for the operation of Client’s website (other than third-party operating systems software, third-party networking software, web browsers and hardware), including all enhancements thereto;
    5. “Documentation” means all written or typed materials that relate to Code, including materials useful for design such as logic manuals, flow charts, and principles of operation that may be developed by Developer in the course of this Agreement;
    6. “Developer Technology” means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, models (including, without limitation, function, process, system and data models); templates; user interfaces and screen designs; general purpose software tools, utilities and routines; and logic, coherence and methods of operation of systems) which Developer has created, acquired or otherwise has rights in prior to this Agreement, and which Developer may employ, provide or modify in providing the Services hereunder;
    7. “Developer” means BinoCom Web (PTY) LTD and/or BinoCom Development (PTY) LTD and or any of the BinoCom affiliated companies;
    8. “effective date” means the date of signature of this Agreement, Quote, Invoice or service level agreement by the party last signing;
    9. “enhancements” means changes or additions to Code and related Documentation;
    10. “Internet” means the world-wide network of computers commonly understood to provide some or all of the following features: electronic mail, file transfers through File Transfer Protocol (“FTP”), Telnet access to local and remote computers, Usenet Newsgroups, Gopher access to information on local and remote computers, Wide Area Information Servers (“WAIS”), and World Wide Web access;
    11. “the Services” means the web page or development services as set out in the quote, invoice or signed documents;
    12. “web browser” means software designed to allow, inter alia, interactive access to the World Wide Web, including, without limitation, Netscape Navigator and Microsoft Internet Explorer;
    13. “web page” means a document of file that is formatted using HTML and that is intended to be accessible by Internet users via a web browser;
    14. “website” means a series of interconnected web pages residing in a single directory on a single web server;
    15. “World Wide Web” means all of the web pages that are accessible to a typical computer user with appropriate access to the Internet and a web browser;

2. Precedence

Should there be any conflict between the terms and conditions on the website and the final written agreement or invoice terms, the latter shall prevail.

3. Search Engine Promotion

If Search Engine Optimization has been agreed as part of the web design contract the client must be aware that The Developer is not responsible for ongoing web site promotion. Should the client require the site to be promoted on an ongoing basis a separate contract must be agreed. The order in which websites are ranked in the natural search results is controlled by the search engines. While during the web design we can optimize your site initially for this by making it search engine friendly, it is impossible to make any guarantees on ranking position.

4. Acceptance of work

Quotations are valid for 7 days from date of issue.

In the event that the Client places an order to purchase a web site, template or web site updates from The Web Developer, the order will represent an offer to The Web Developer to purchase the web site, template or web site updates which is accepted by The Web Developer only when an invoice is sent, Quote is signed by The Web Developer or written confirmation forwarded to the client via fax, mail, hand delivered or by post.

No contract for the supply of services exists between the Client and The Developer until The Developer sends an invoice to the Client for payment, Quote is signed by The Web Developer or written confirmation forwarded to the client via fax, mail, hand delivered or by post.

The acceptance by The Developer (or third party supplier) of the Clients offer to purchase services from The Developer and this acceptance of work is a valid contract between the Client and The Developer regardless of whether the Client receives the invoice.

The Client agrees to check the details of the invoice are correct and should print and keep a copy for their records. The Developer reserves the right to withdraw from contract at any time prior to acceptance.

5. Consideration

As consideration for the Services rendered by Developer hereunder, Client shall pay to Developer the fee as set out in the quote and verified on the tax invoice, payable by Client monthly in arrears, within 7 (days) of the date of Developer’s tax invoice in respect thereof. The fee is inclusive of Value Added Tax. Should the invoice stipulate additional cost and separate terms the latter shall prevail.

6. Client Warranties

  1. Client hereby represents and warrants that:
    1. In situations where the client provides the following to the developer but not limited to images, text, animations, layouts or any other content for their web design they are legally responsible for ensuring that this material does not infringe any copyright and further agrees.
      1. The Developer has the right to publish such material on its website without restriction;
      2. such material does not or will not contravene any statutory or Constitutional provision, including without limitation, any provision of the Bill of Rights, in the Republic of South Africa;
      3. such material does not and will not infringe any patents, copyrights, trademarks, company names, close corporation names, trade secrets or other intellectual property rights, privacy or similar rights of any person or entity, nor any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending against Client (or, insofar as Client is aware, against any entity from which Client has obtained such rights);
    2. It is entitled, without restriction, to link to any website in respect of which it has requested hyperlinks to be included in its website unless otherwise indicated by the Client in writing.
    3. Certain images provided by The Developer may have been purchased under license from stock image suppliers. These images are generally only licensed for use on a website. The license may not permit them to be used in publicity material. The website owner is legally responsible for ensuring that this does not happen. If you wish to use any images from the site for other purposes please contact us for clarification.
  2. Accordingly, Client hereby indemnifies and holds Developer it’s employees, representatives, agents and the like harmless against any loss, harm or damage which may arise as a result of the alleged or actual breach of the above warranties.

7. Copyright & Ownership

Except as provided herein, upon full and final payment to Developer of all the fees, the Deliverables will become the property of Client. To the extent that any Developer Technology is embodied in any of the Deliverables, Developer hereby grants Client, upon full and final payment to Developer hereunder, a royalty-fee, fully paid-up, world-wide, non-exclusive license to use such Developer Technology in connection with the Deliverables.

8. Payment terms

All invoices must be paid in full within 7 days of the invoice date and The Developer will carry out work only where an invoice has been paid by the Client for the work, unless otherwise agreed at The Developers discretion. Additional work requested by the Client which is not specified in the agreed quotation is subject to a separate quotation and The Developer reserves the right whether to quote or accept additional work. If additional work is accepted by The Developer it may effect timescale and overall delivery time of the project.

A deposit equal 50% of the quotation for design work, as well as the hosting fee for the first month is payable before any work commences and the final payment to be received when all pages are published and the client signs off the design.

Once an invoice is sent to the Client it must either be paid either by Cash deposit or Electronic Funds Transfer.

The Developer reserves the right to decline further work on a project if there are invoices outstanding with the Client.

The Client may request that the The Developer cancel a project in writing by email or fax to The Developer and the project is cancelled only if The Developer confirms work has not been started on the project. If The Developer has begun or completed the work and the Client no longer requires the website to be completed or cancels for whatever reason, but have agreed to the work, the initial deposit of 50% of the design cost will be forfeited.

All invoices are submitted by email except where required otherwise by regulations or agreed at The Developer’s discretion.

The Developer reserves the right to remove it’s work for the Client from the Internet if payments are not received.

The Developer reserves the right to suspend the Client’s website if payment for hosting services is not received by the 10th of any invoiced month.

In the event that the developer is not able to complete or proceed with the required work to be done as a result of a delay by the client in supplying content or approval, the developer has the option to instruct the client to deliver the required outstanding. Should same not be delivered within 7 (seven) days from date that the notice was given as per clause 16 the client will pay all the outstanding fees as would have been required on completion of the work. Should a monthly maintanance and/or service level agreement form part of the original agreement the commencement date of such monthly maintanance and/or service level agreement will commence with emediate effect.

9. Conceptualizing

Conceptualizing is the process of producing web design concepts for clients. Concepts can include site mock ups, graphics and design proposals.  Web design clearly takes a lot of time and for higher cost websites it will be included. For a low cost web design (say below R3000 ZAR) you should be aware that (unless previously agreed) only two web design concepts is possible. You should therefore ensure that you let us have your preferred colour scheme and design requirements beforehand. If you don’t do this we will design the website appropriately. If it is not to your taste we may not be able to rework the web design without additional charges. This is why it is often best to show us another website that you like as an example of what you require.

10. Confidentiality

Developer and Client shall treat this project as confidential during the currency thereof. Once Client has approved its final website, however, Developer may list Client as a client of Developer and may include a link to Client’s website on Developer’s website.

11. Non-Solicitation

  1. Client and/or any of its affiliated or associated companies, directors, associates or staff undertakes that it shall not without prior written consent from Binocom Holdings, either during, or within 12 (twelve) months after termination of this agreement, engage, employ or otherwise solicit for employment any person who during the currency of this agreement was an employee of Developer.
  2. A breach of this condition will render payment by the client to the developer for damages in an amount equal to twelve (12) month’s salary of the relevant member of personnel, provided that such damages shall be calculated in respect of the twelve (12) month period prior to such member of personnel leaving the employ of The Developer. The Parties agree that the aforementioned damages are fair, based on the damage the Developer is likely to suffer, and considering the difficulty in calculating the actual damages.

12. Non-Exclusivity

Nothing in this agreement shall be construed as precluding or limiting in any way the right of Developer to provide web page development or other services of any kind or nature whatsoever to any person or entity as Developer in its sole discretion deems appropriate. In addition, and notwithstanding anything in this agreement to the contrary, the parties acknowledge and agree that:

    • The Developer will own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Developer Technology; and
    • The Developer may employ, modify, disclose, and otherwise exploit the Developer Technology (including, without limitation, providing services or creating programming or materials for other clients).

13. Limitation of Liability

Developer shall not under any circumstances be liable for any consequential, indirect or special damages of whatsoever nature and howsoever arising, whether in contract, delict or otherwise, suffered by Client arising out of the design or use of the website developed pursuant to this agreement. Without derogating from the aforegoing, Developer’s total liability to Client for direct damages pursuant to this agreement will be limited to the total aggregate amounts paid to it by Client pursuant to this agreement.

14. Dispute Resolution & Arbitration

  1. Any dispute which may arise between the parties shall in the first instance be referred to a joint committee of a Director of The Developer and a senior officer of Client, or alternates appointed by them, who will use their best endeavours to resolve the dispute within 14 (fourteen) days of the dispute having been referred to them. If the dispute is not resolved in accordance with the aforegoing, it shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
  2. The arbitration referred to in 13.1. shall be held:
    1. at Johannesburg in the English language; and
    2. Immediately and with a view to its being completed within 21 (twenty-one) days after it is demanded.
  3. The parties irrevocably agree that the decision in arbitration proceedings:This clause 13 is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement.
    1. shall be final and binding upon the parties;
    2. shall be carried into effect;
    3. may be made an order of any court of competent Jurisdiction.

15. Breach and Termination

  1. Should one of the parties commit a material breach of this agreement and fail to remedy such breach within 14 (fourteen) days of having been called upon in writing by the other party to do so, then and in such event the aggrieved party shall be entitled, in addition to any other rights and remedies that it may have in terms of this Agreement or otherwise, including the right to recover damages, to terminate this Agreement.
  2. Client may only terminate this Agreement on written notice via registered post to The Developer. Upon receipt of such written notice, Developer shall cease all work in progress and inform Client of the extent to which performance has been completed.
  3. Developer requires 30 days (1 full calendar month) notice of cancellation of any hosting and or maintenance agreements. Work will only be handed over once the entire account is settled in full and up to date.
  4. The Developer reserves the right to charge a cancellation fee relating to any project once the costs have been signed off and approved.
  5. If this Agreement is terminated for any reason, Developer shall be entitled to payment for work done up to the date of termination. In such event Developer shall and hereby grants all right, title, and interest to the extent contemplated in the Agreement, in the Deliverables in the form in which they exist on the date of termination to Client.

16. Notices

  1. The parties hereto select as their respective domicilia citandi et executandi for the purpose of giving or sending any notice provided for or required hereunder the physical addresses and telefax numbers set out in the quote, or such other address or telefax numbers as may be substituted by notice given or as herein required.
  2. Any notice addressed to party at its physical address shall be delivered by hand, telefax or sent by registered post.
  3. Any notice shall be deemed to have been given:
    1. if hand delivered, on the day of delivery,
    2. if sent by telefax, on the day and time of sending of such telefax, as evidenced by a fax confirmation printout, provided that such notice shall be confirmed by prepaid registered post on the date of despatch of such telefax, or, should no postal facilities be available on that date, on the next business day.
    3. If sent by registered post, 7 days subsequent to the sending of the registered post.

17. Email Use Policy – Monitoring and utilising of mail

  1. Everyone using the mail and/or mailbox and/or mail address and/or website and/or domains owned by Binocom accepts that the use of email is a valuable business tool.
  2. All the following but not limited to data, mails content, information, attachments and/or documents contained in the mails and/or mailboxes remain the property of Binocom to use and/or apply and/or distribute as it seems fit.
  3. The right to use the information as set out in clause 2 above belongs exclusively to the Directors of Binocom.
  4. In addition, all of the company’s email resources are provided for business purposes.
  5. Therefore, the company maintains the right to examine any systems and inspect any data recorded in those systems and use it as it pleases for disciplinary and/or legal use whether or not the intent of the user was that of private nature.
  6. In order to ensure compliance with this policy, the company also reserves the right to use monitoring software in order to check upon the use and content of emails.

18. General

  1. This agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof and save as otherwise provided herein no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties hereto or their duly authorised representative. The parties agree that no other terms or conditions, whether oral or written, and whether express or implied will apply hereto.
  2. No waiver of any of the terms and conditions of this agreement will be binding or effectual for any purposes unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power of privilege.
  3. This agreement does not constitute a partnership and Developer, in providing the Services, is acting and shall act solely as an independent contractor. Neither party shall under any circumstances be entitled to bind the credit of the other party.
  4. Should any of the terms and conditions of this agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.
  5. Neither party shall be entitled to transfer or assign, partially or entirely, any of its right or obligations under this agreement to a third party without the prior written consent of the other party.
  6. This agreement will be governed by and constructed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.