Let’s play nice!
Thank you for taking the time to read over our terms and conditions. Our attorneys have assisted us in drafting these, so please forgive the fact that they sound so attorney-ish. Sometimes we’ve just got to do what we’re told 🙂
TERMS AND CONDITIONS
- The following T&Cs apply to all Services provided by Brandy Candy.
- Any agreement in respect of the provision/supply of the Services to you shall be governed by the Cost Estimate and these T&Cs. To the extent that there is a conflict between these T&Cs and the
- Cost Estimate, the provision in the Cost Estimate shall prevail.
- We may, at our sole discretion, update and/or amend these T&Cs from time to time and any such updates and/or amendments shall be deemed to be accepted by you.
- These T&Cs are available on our website.
- In these T&Cs the following expressions shall have the meanings assigned to them below:
- “Client”: The recipient of the Services.
- “Cost Estimate”: Estimate of costs and outline of scope of Services.
- “Days”: Calendar days.
- “Parties”: Brand Candy and the Client, their respective successors-in-title and, their respective cessionaries and assignees. Any reference to “a Party” shall refer to one of the relevant Parties as required by the context.
- “Services” : The website development/design/marketing/branding services to be provided by Brand Candy to the Client as set out in the Cost Estimate and as may be amended in accordance with these T&Cs, including inter alia advertising, communication and related work in both the traditional and digital space.
- “Statement of Work”: The detailed description of the scope of the Services prepared by us upon your acceptance of our Cost Estimate.
- “Termination Date”: Any date on which the Services are terminated in accordance with its terms other than by way of effluxion of time.
- “T&Cs”: The terms and conditions set out in this document including any terms and conditions provided in the Cost Estimate.
- “Us”: Brand Candy
- “You”: The Client
- Unless the context indicates otherwise, in the T&Cs:
- references to any other contract or document shall include a reference to that contract or document as lawfully amended, varied, novated or substituted from time to time;
- the headings of clauses, sub-clauses and schedules are included for convenience only and shall not affect the interpretation of the T&Cs;
- the Parties acknowledge that each of them has had the opportunity to take legal advice concerning the T&Cs, and agree that no provision or word used in the T&Cs shall be interpreted to the disadvantage of either Party because that Party was responsible for or participated in the preparation or drafting of this Agreement or any part of it;
- words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter; and
- the number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day.
COST ESTIMATE, JOB SPECIFICATION AND ADDITIONAL EXPENSES
- Cost Estimates are provided as a rough scope based on limited specifications and requirements supplied by you;
- Cost Estimates are valid for the time period stipulated in the Cost Estimate and do not include domain name registration or hosting fees unless otherwise specified.
Appointment of Brand Candy
By signing the Cost Estimate, completing the form at the end of these T&Cs or making payment of a deposit in respect of Services or invoice you have appointed us to attend to the Services.
- Our fees are estimated on either a time basis or on a fixed-cost basis. Where we have provided you with an estimate on a fixed-cost basis, you will be liable for any additional services falling outside of the scope of the original Cost Estimate. We will provide you with a further cost estimate for your acceptance in the event that the original scope of Services is to be extended.
- You shall reimburse us for any additional expense/s incurred by us necessary for the performance of the Services (for example the purchase of special fonts, stock photography and/or additional plug ins not included in the Cost Estimate).
- All out of pocket expenses and disbursements incurred by us in performing the Services, will be submitted to you for prior approval and will be payable by you upon presentation.
- Advertising spend is payable in advance and in accordance with the Statement of Work and as agreed by the Parties from time to time. Any changes to the advertising budget are to be agreed by you and us.
- We shall:
- return any unused advertising spend to you on expiry or termination of the Services;
- only promote adverts that have first been approved by you in writing;
- if applicable, provide you with access to your Google AdWords account;
- endeavour to ensure your AdWords campaign/s (if applicable) are within your approved AdWords budget, however to the extent that an overspend does occur, we will, at your election, either deduct this amount from the following month’s budget or add the amount overspent to the following month’s invoice as an additional charge.
FEES AND PAYMENT
- The fees and disbursements payable by you are set out in the Cost Estimate and Statement of Work.
- We are registered Vat vendors. Vat invoices will be raised for all services we may provide to you.
- All invoices are to be paid according to the payment terms specified on the invoice. We are not a credit service provider and do not grant credit facilities.
- Unless otherwise stated on the invoice, payment must be made in South African Rands to our bank account in the Republic of South Africa.
- Interest may be charged on all overdue payments up to the maximum rate permissible in law from due date of payment to date of payment, both days included and cash deposits received will attract bank charges which we reserve the right to pass on to you.
- We shall be entitled in our sole discretion to require payment of a deposit or payment in full prior to performance and/or delivery of any part Services.
- You shall pay amounts due to us in full and without deduction or set-off.
- You shall not be entitled to withhold or reduce any amount payable to us under these T&Cs or any agreement/s by reason of claims or alleged claims against us.
You acknowledge and agree that:
Information and Delays
- You have an integral role in ensuring the success of the Services and will participate with us and utilise designated software and systems to ensure that we receive a full and accurate brief from you and we all have contemporaneous updates.
- You will provide us with sign-off/approval of items such as mock ups, home page designs, draft copy documents etc. timeously via email, which we agree to accept via email.
- Delays in providing us with feedback, information, content and/or instructions when requested will result in delays in respect of the Services, for which we shall not be liable.
- We shall be entitled to charge a reasonable delay fee in the event that the Services are unable to proceed as scheduled due to delays in performance of any of your obligations pursuant to these T&Cs.
- In the event that the Services are delayed for more than 30 (thirty) days, we will invoice you for a progress payment in respect of the Services completed. Services will recommence once you are in a position to proceed, subject to payment of our invoice, our availability and scheduling.
- If the Services includes a web project and you are unable to produce information or content required for your web project to enable the site ready to go live, we will invoice you in accordance with the wasted costs tariff in clause 7.10 below. Once you have provided us with the content and the site is ready to go live we will invoice you for the balance and activate your website upon receipt of payment of the final invoice.
- You shall make all possible product wording, information and options documentation for reference purposes available to our team upon request.
- You shall be responsible for ensuring that content provided to us is accurate and does not contain text errors (spelling or otherwise). Should amendments to content supplied by you be required, we will send you a Cost Estimate for your approval for these additional Services and will invoice you accordingly.
- We use our best efforts to ensure that our websites are designed to be viewed by the majority of visitors. Websites are designed to function with the most popular browsers (for example, Chrome, Microsoft Edge, Safari and Firefox etc.) We cannot and do not guarantee that correct and/or optimal functionality with all browser software across every operating system.
- We do not accept any responsibility for web pages which do not display acceptably in new versions of browsers released after the website has been designed and delivered to you.
- Should the Services include management of your website and/or social pages, we acknowledge that ownership thereof shall remain yours and we will have no claims in respect of ownership thereof.
- Once we have received payment in full in respect of the Services, all copyright and any other intellectual property rights in the Services shall belong to you and you shall have the right to register and renew the copyright in your name or in the name of your nominee.
- You retain the copyright to data, files and graphic logos provided by you and grant us the rights to publish and use such material in the performance of the Services.
- You warrant that you have obtained permission and rights to use any information or files that are copyrighted by a third party and indemnify and hold us harmless from any and all claims resulting from your negligence or failure to obtain copyright permissions. Evidence of permissions may be requested by us.
- The following shall remain our intellectual property until payment in full has been received by us in respect of the Services and shall not be copied and/or used by you or any other party without our prior written consent:
- source code (where not open source) of all website web pages and scripts;
- CSS and files used within the website designed by us for you;
- stored procedures, functions and triggers programmed into any databases.
- Should we commission or purchase photographs on your behalf, provided we have received your payment for the photographs, they will become your intellectual property. Should the stock photograph/s have usage or royalty requirements, we will advise you accordingly and you will be bound by such terms and requirements.
THIRD PARTIES AND PLUGINS
- We reserve the right to use the services of sub-contractors, agents and suppliers (“Third Parties”) and any work, content, services and useage is subject to the Third Party’s terms and conditions. We will not knowingly breach the Third Party’s terms and conditions.
- Any plugins included in your Statement of Work are to be purchased by you and will be subject to the plugin suppliers’ terms and conditions. We will send you a link and instructions to process the purchase if applicable.
DOMAINS, HOSTING & WEBSITES
- We may purchase a domain name/s on your behalf. Payment and renewal of any domain names is your responsibility. The loss, cancellation or otherwise of the domain arising from non or late payment is your responsibility.
- We reserve the right to suspend your website domain at any time should any viruses or malicious content be exposed through hacking or security breaches to any third party application or website.
- If your website and/or emails are hosted with us, you will be hosting your website with our selected hosting company.
- Occasional maintenance to the servers may affect your website and email from time to time and you agree that we shall not be liable for any loss or damage sustained by you or any third party, including consequential loss, arising from any unavailability, malfunction or interruption of this service.
- Fees for your domain name and hosting shall be payable to us annually in advance, upon presentation of our invoice which will be provided to you when renewal is due. Renewal fees are non-refundable.
- Failure to pay any fees in respect of your domain and/or website hosting may result in termination thereof by the hosting company. You may be liable for the hosting company’s penalty fee in the event that your domain and/or website hosting are cancelled and you wish to reactivate.
- In the event that you choose a third party hosting company and not our recommended hosting company, it will be your responsibility to confirm with them that they are able to host your website requirements. To the extent that we are required to perform any additional services to enable your third party hosting company to host your website, we will provide you with a cost estimate for the additional services.
- We will not be held responsible for any costs incurred, compensation or loss of earnings due to hosting issues if you do not choose to host with our recommended provider. We also reserve the right to charge you for any time spent fixing hosting issues for sites not hosted with us.
- If we host your website, we will backup your website on a sever level and on your hosting up to one month at a time. If we do not host your website then we shall not be responsible for any backups of your website.
- While every attempt is made to secure your website, website hacks can and do occur. We treat these on a case by case basis and will always estimate for any work that needs to be done.
- You have 30 (thirty) days from the date on which your website is launched to bring to our attention any bugs and/or any incorrect behaviors of the software/website. Any issues raised by you after the 30 (thirty) day period or falling outside of the Statement of Works shall constitute a new instruction and will be estimated accordingly.
- If the Services are terminated for any reason whatsoever and the Services includes website development, the following wasted costs tariff will apply in respect of the website development in addition to any other fees, charges, disbursements or damages we may be entitled to claim:
- 25% (twenty five percent) of the fee shall be payable once the planning and graphic design is complete;
- 50% (fifty percent) of the fee shall be payable once the home page template has been developed;
- 75% (seventy five percent) of the fee shall be payable once all page templates have been developed;
- 90% (ninety percent) of the fee shall be payable once all available content has been added to the site;
- 100% (one hundred percent) of the fee shall be payable once all templates have been built and populated with content.
LIMITATION AND EXCLUSION OF LIABILITY
- Neither party will be liable for any failure of or delay in the performance by it of its responsibilities or obligations to the extent that such failure or delay arises from a cause or causes beyond its reasonable control including, without limitation, an act of God, riot or other civil disturbance, strike or other labour dispute, fire, explosion, flood or South African governmental requirements.
- Clause 8.1 shall not apply to the non-payment by a party of any amount due to the other and shall be subject to the party affected giving written notice of any such occurrence to the other party immediately upon the onset of the occurrence.
- Both parties agree to indemnify and hold harmless one another from any and all claims, demands, costs, expenses or liabilities, brought or imposed upon by the other, relating to or arising out of any acts, omissions, fraud, misrepresentation or wrongdoing by the other in connection with the performance of this agreement.
- We will not be liable for any interference or security breaches in respect of your website, such as inter alia viruses, hacking, or malicious content, whether hosted by us or a third party.
- In addition to the aforegoing, we shall not be liable for any loss or damage, including consequential loss, arising from or caused:by loss of data;
- by any inaccuracy and/or omission;
- by delay or error, whether the result of negligence or other cause in the performance of the Services;
- by failure or loss in respect of any backups;
- by any act, omission or defective works/services supplied by any Third Party including but not limiting third party plugins;
- to your artwork/photos supplied for the website, whether the result of negligence or otherwise;
- to or loss of any working files generated by us during the performance of the Services.
- If the Services includes a monthly element, either party may terminate the Services on 60 (sixty) days written notice to the other party.
- The parties shall comply with their respective obligations in accordance with the Cost Estimate, Statement of Work and these T&Cs for the duration of the notice period.
- On termination or cancellation of the Services, provided payment of all of our invoices has been received, we will deliver and/or return the following to you (as applicable):
- a full list of keywords used in connection with Google Adwords campaigns;
- all advertising copy;
- full details of the PPC or PPV strategy including targeted territories, budgets and any other demographics;
- full details of all traffic received or directed under your campaign/s including Google Analytics information or similar;
- any unused advertising budget, whether Google Adwords, social media advertising and/or other digital or printed platforms advertising budget as applicable.
- We (you and us) agree and acknowledge that the information and documents relating to the Services and information concerning the business transactions and methods of both parties (“Confidential Information”) constitutes valuable commercial information and neither party shall at any time during or after the performance and/or delivery of the Services, without the other party’s prior written consent, disclose or otherwise make available to any party, either directly or indirectly, all or any party of the Confidential Information.
- The above clause shall apply unless or until the recipient of the Confidential Information can reasonably demonstrate that any such communication or information, is part of the public domain through no fault of its own or that such communication was obtained by the recipient from sources other than the other party to this agreement, or that such communication is required to be released or disclosed by subpoena, other judicial or administrative process, or by other laws or regulations.
We (you and us) agree that during the term of the Services and for a period of one year after its termination or expiration, we shall not, without the prior written consent of the other party, employ, or contract the services of any person who was employed by the party at any time during a 12 month period preceding the date on which the offer for employment is made to the party.
DOMICILIUM AND NOTICES
- The physical address provided by you in your client information sheet shall be the address you have chosen where summonses, legal documents and notices can be served on you (“domicilium”).
- We may also serve notices on you by email and shall use the email address used by you in correspondence with us (“email domicilium”).
- We choose our domicilium at D3, The Colony Centre, 50 Old Main Road, Hillcrest.
- Either of us shall be entitled from time to time to vary our domicilium or email domicilium on ten (10) days written notice to the other.
- Any notice which:
- is delivered by hand at the addressee’s street address domicilium shall be deemed to have been received by the addressee at the time of delivery; or
- is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the seventh day after the date of posting; or
- if transmitted by email to the addressee at the addressee’s domicilium shall be deemed to have been received by the addressee on the date of transmission or, if the transmission is made out of normal business hours, on the first business day following after the date of transmission.
- If either Party breaches any of these T&Cs and fail to remedy the breach within 7 (seven) days after receipt of written notice from the other party the other party shall have the right, as and where applicable without prejudice to any other right which that party may have, to terminate the Services and claim damages.
- In addition to and without limiting our rights, we shall also have the right to:
- suspend the Services automatically and without prior notice to you; and/or
- treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Services, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of our obligations in terms of the T&Cs, as well as under any other agreement with you until you have remedied the breach.
- Should the Services be cancelled at any time, we will calculate all fees payable up to that point of Services. We will invoice you for any amount greater than the deposit paid by you which shall be payable as set out in our invoice. In the event that the fees up to that point of work is less than the deposit, we shall be entitled to retain the difference as damages.
- The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
- Our liability to you in respect of any claim whatsoever for breach of these T&Cs by us, whether not arising from negligence, shall be limited to the charges paid for the Services.
Whole Agreement and Representations
These T&Cs contain the entire understanding of the parties as to its subject matter. No party shall be bound by any condition, warranty, representation or undertaking of any kind, whether express or implied, unless agreed to by each of the parties. The provisions of these T&Cs shall apply mutatis mutandis to any Cost Estimate, Statement of Works or other agreement concluded by and between you and us.
No variation, amendment or consensual cancellation of the T&Cs or any provision or term thereof or other document issued or executed pursuant to or in terms of these T&Cs shall be binding unless recorded in a written document signed by our and your duly authorised representatives. We may vary these T&Cs (including pricing and any other terms) at any time and all agreements concluded thereafter will be subject to the variations.
We shall be entitled, on written notice to you, to delegate, assign, cede, transfer or in any way alienate or dispose of any of our rights/obligations in terms of these T&Cs to any other person. You may not delegate, assign, cede, transfer or in any way alienate or dispose of any of your rights or obligations in these T&Cs to any other person without our prior written consent.
Failure to require performance
The failure of either party at any time to require performance of any provision of these terms and conditions shall not affect the right of that party to require performance of that provision or of any other provision in the future.
No waiver by either of us with respect to a breach of any provision of these T&Cs shall be construed as a waiver with respect to any continuing or subsequent breach of that provision, or as a waiver of any other right hereunder.
Each provision in these T&Cs is severable from all others, notwithstanding the manner in which they may be linked together or grouped. If any provision is found to be defective or unenforceable for any reason, the remaining provisions shall continue to be of full force.
These T&Cs will be governed by and construed in accordance with the laws of South Africa. The parties hereby consent in terms of Section 45 of the Magistrates’ Court Act of 1944 to any legal proceedings being instituted in the Magistrates’ Court of any district having jurisdiction in respect of the other by virtue of the provisions of Section 28(1) of the said Act. Notwithstanding such consent, an aggrieved party shall have the option of instituting proceedings against the other party in the High Court of South Africa.
You are liable for any legal costs incurred by us in respect of any breach of these T&Cs by you, on an attorney and own client basis. Legal costs arising from non-payment of any invoice will be accrued to your outstanding balance.
The persons accepting these T&Cs on behalf of the parties warrant that they are duly authorised to do so.
The parties agree to do all things as may be required by law or necessary to implement the terms and condition and the Agreement.
These T&Cs will be governed by and construed in accordance with the laws of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
In the event of any expiration, termination or cancellation of the Agreement and/or these T&Cs, provisions which are intended to continue and survive shall so continue and survive.
In the event that any provision of these T&Cs conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision shall be controlled by the statute, ruling or order.