The acceptance of Quotation by Client via email or an instruction to proceed with a design implies that the below terms and conditions have been read and understood and accepted by the Client.
The following terms and conditions document is a legal agreement between NIYASH (PTY) LTD, hereafter “NIYASH (PTY) LTD” and “Client” for the purposes of web site design or development. NIYASH (PTY) LTD preferred web site hosting supplier, Elitehost, will be known as the “Internet Service Provider” (ISP). These Terms and Conditions set forth the provisions under which the Client may use the services supplied.
Standard Hosting Service
NIYASH (PTY) LTD will either secure an account with an ISP on behalf of the Client, or the Client may secure the account independently. If the Client is not an advanced user of the Internet, the Client is encouraged to use the services of NIYASH (PTY) LTD to secure and maintain this account, this also ensures that NIYASH (PTY) LTD are able to upload the website and guarantee that the hosting platform supports all functionality. Should the Client already host a web site with another hosting company but wish to move to NIYASH (PTY) LTD ISP Servers, the Clients domain/s transferred to the ISP free of charge.
The Client hereby authorizes NIYASH (PTY) LTD to access this account, and authorizes the Web Hosting Service Provider to provide NIYASH (PTY) LTD with “write permission” for the Clients web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project.
The Client also authorizes NIYASH (PTY) LTD to publicize their completed web site to Web search engines, as well as other Web directories and indexes, should it so deem.
Domain Name Registration
NIYASH (PTY) LTD will secure a domain name (www.domainname.com) for the Client at the Clients request.
All charges incurred in doing so will be billed to the Client as an addition to the base price contemplated by this agreement unless otherwise stated. These are Internet fees, and are not a source of income for NIYASH (PTY) LTD. If the Client already owns a domain name, which is authorized to move to the ISP, NIYASH (PTY) LTD will coordinate redirecting the address to the new host.
Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name, must be undertaken by the Client. Client agrees to take all legal responsibility for use of third party domain name, hosting and email services and hereby agrees to indemnify and hold harmless NIYASH (PTY) LTD from any claim resulting from the Clients publication of material and use of the domain name, hosting and email services.
Any support or payment due relating to the domain name, hosting and email services are to be made between the Client and the third party service (unless otherwise stated). Client agrees to pass on FTP details, Client Panel, and any other access details relating to their domain name and hosting account which NIYASH (PTY) LTD requires to upload the web site, if required as part of a project.
NIYASH (PTY) LTD reserves the right without notice to refuse work with domain names or hosting and email services without reason for such rejection or refusal.
Copy for web site must be supplied by the Client in Microsoft Word .DOC or .RTF format via disk or email attachment. If not supplied on disk or via email, there will be an additional charge for typesetting. Copy writing services are available at an additional charge.
If the Client does not supply NIYASH (PTY) LTD complete text and graphic content for all web pages contracted, within six (6)weeks of the date the contract was agreed to, the entire amount of the contract becomes due and payable. If the client has not submitted complete text and graphics content within two (2) months of agreeing to this contract, an additional continuation fee of 10% of the total contract price will also be assessed each month until the web site is advertised.
Additional web pages requested over and above the amount stated on the quotation will be charged at R480.00 per additional page. Graphics or photos beyond the allowed average of 1-2 per web page shall be billed at an additional R180.00 each.
Where custom graphic work is requested, it will be billed at the hourly rate specified in this document, or as quoted. Notwithstanding anything to the contrary contained in this clause, NIYASH (PTY) LTD reserves the right to advise the Client in writing of any change in its charges arising from the work being done by NIYASH (PTY) LTD as envisaged in terms hereof in 14 written days’ notice by NIYASH (PTY) LTD to the Client.
Cross Browser Compatibility
NIYASH (PTY) LTD shall make every effort to ensure sites are designed to be viewed by the majority of visitors. Sites are designed to work with the main browsers Internet Explorer and Mozilla Firefox latest releases. Client agrees that NIYASH (PTY) LTD cannot guarantee correct functionality with all browser software across different operating systems. Client agrees that after the handover of files, any updated software versions of the main browsers, domain name setup changes or hosting setup changes thereafter, may affect the functionality and display of the web site.
As such, NIYASH (PTY) LTD reserves the right to quote for any work involved in changing the web site design or web site code for it to work with updated browser software, domain name or hosting changes. Client is aware that some advanced techniques on the Internet may require a more recent browser version and brand or plug-in. Client is also aware that, as new browser versions of Internet Explorer and Firefox are developed, the new browser versions may not be compatible. In the absence of a Maintenance Agreement time spent to re-code a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
Online stores only
The text and graphic content of the web pages will be supplied by the Client and executed as specified by the Client in the “Web Page Planning Worksheet” and/or the “Store Planning Worksheet”. The quotation provided includes the quantities of products, categories, photos, regular pages, etc. in the final store.
Any variations to this will incur additional charges. Product web pages, products, or photos added after the store is ready for advertising to the Web will be calculated for actual time spent at the hourly rate specified below.
Client Amends / Changes
NIYASH (PTY) LTD prides itself in providing excellent customer service. That is the spirit of our agreement and the spirit of NIYASH (PTY) LTD business. To that end, we encourage input from the Client during the design process. NIYASH (PTY) LTD understands, however, that the Client may request significant design changes to pages that have already been built to the Clients specification. To that end, please note that our agreement does not include a provision for “significant page modification” or creation of additional pages in excess of our agreed page maximum.
If significant page modification is requested after a page has been built to the Clients specification, we must count it as an additional page. Some examples of significant page modification at the request of the Client include:
- Developing a new table or layer structure to accommodate a substantial redesign at the Clients request
- Recreating or significantly modifying the company logo or other graphics at the Clients request
- Replacing more than 75% of the text to any given page at the Clients request
- Creating a new navigation structure or changing the link graphics at the Clients request
- Significantly re configuring the Clients shopping cart with new product, shipping or discount calculation if an e-commerce enabled site has been selected by the Client
If the Client requests significant page modification after the page maximum has been reached, a Change Request with estimated costs will be submitted for Clients approval prior to changes being done. Moderate changes, however, will always be covered during our development of the site and also covered by our maintenance agreements.
Maintenance Agreements are negotiated on a Client-by-Client basis as each Client will have differing needs. NIYASH (PTY) LTD offers two kinds of Maintenance Agreements:
- The Monthly “Flat Rate” Maintenance Contract – The Client pays a fixed monthly rate for such things as changing the price of an item, adding additional inventory to online store, addition of email addresses and making minor changes to a sentence or paragraph, etc. “Flat Rate” Agreement is payable each month, whether the time is used or not. Please enquire for the rate choices. .
- The “As Needed” Maintenance Contract – A monthly chargeable agreement, higher than the “Flat Rate”, but offering cost savings on sites with little to no changes. Charges incur when Client requests a change.
Changes requested by the Client beyond those limits will be billed at the hourly rate of R450.00 per hour. This rate shall also apply toward additional work authorized beyond the maximums specified above for such services as: general Internet orientation education, marketing consulting, web page design, editing, modifying product pages and databases in an online store, and art, photo, graphics services, and helping Clients learn how to use their own web page editor.
Programming charges are excluded from the maintenance agreements. Maintenance Agreements exclude any additional functionality added to the web site, for example galleries, calendars, forums, polls etc. Any web site or web page redesigns, graphic design (banners, advertisements etc.) are also excluded from the maintenance agreement. Should the Client or an agent, other than NIYASH (PTY) LTD, attempt to update the web site and damage the design or impair the ability for the web pages to display or function properly, time to repair the web pages will be assessed at the hourly rate, and is not included as part of the updating time. There is a one-hour minimum. Provided that NIYASH (PTY) LTD may increase its hourly rate as provided for herein on 14 days written notice to the Client.
NIYASH (PTY) LTD will provide both e-mail and telephonic support to the Clients designated representatives regarding management of the Clients web site for a period of 1 month (30 days) upon completion of the web site development. Any further support required will incur a charge.
Work Schedule & Payment Terms
An advance of 50% of the total cost of the project is required after approval of the front page is completed and before further work can commence, unless otherwise stated. Only upon receipt of payment, will a project be opened for the services requested. Payment is accepted by Electronic Funds Transfer (ETF) ONLY, or PayPal for International clients, in US Dollars unless otherwise agreed. No Cheque deposits will be accepted. Cash deposits will incur a 10% fee for bank charges. Once NIYASH (PTY) LTD receives the deposit, basic design concepts will begin. The balance is due and payable on completion of the project or 30 days from commencement of the project, whichever comes first.
NIYASH (PTY) LTD to submit a ‘First Mock-up Draft’ of web site no later than ten (10) days after NIYASH (PTY) LTD receives signed agreement, along with initial direction from the Client (Web Site Design Brief).
The Client is to provide NIYASH (PTY) LTD with all the data needed to complete web site, including text, company logo, and images.
Communication between NIYASH (PTY) LTD and Client is crucial during this phase to ensure that the ultimate publication will match the Clients taste and requirements. Upon completion of this stage, the Client will be asked to confirm acceptance for the basic site design via e-mail or by responding to a review request which will be sent via email. Once acceptance is received from the Client, work will commence to complete the project.
Upon completion of the web site, an approval form will be sent to the Client. Client will supply written approval by responding to the approval request email, which will be emailed back to NIYASH (PTY) LTD.
Final payment to be paid within 30 days of commencement of the project, or upon project completion – whichever comes first. Any additional charges incurred will be due within seven (7) days after delivery of the project and invoice. All payments are non-refundable and required even if deliverables are not used by client.
Should payment not be made within thirty (30) days of notification, a late payment penalty of R550 will be charged per month that the fees remain outstanding. NIYASH (PTY) LTD reserves the right to remove all web content from the Internet if payment is not made within thirty (30) days of completion notification.
If case collection proves necessary, Client agrees to pay all fees incurred in that process. Regardless of the place of signing this agreement, Client agrees that for the purposes of venue, this contract was entered into in Durban, South Africa, and any dispute will be litigated or arbitrated in Durban, South Africa.
NIYASH (PTY) LTD and Client must work together to complete the web site in a timely manner for both parties to remain profitable. We agree to work expeditiously to complete this project no later than twenty (20) working days from date of cleared deposit, and receiving all relevant material from the Client. NIYASH (PTY) LTD, however, cannot be held liable for late completion should the Client not revert with feedback in a timely manner.
Copyrights and Trademarks
The Client represents to NIYASH (PTY) LTD and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to NIYASH (PTY) LTD for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend NIYASH (PTY) LTD and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or NIYASH (PTY) LTD. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy. NIYASH (PTY) LTD reserves the right to determine what is and is not pornography.
The Client hereby agrees to indemnify and hold harmless NIYASH (PTY) LTD from any claim resulting from the Clients publication of material or use of those materials. It is also understood that NIYASH (PTY) LTD will not publish information over the Internet which may be used by another party to harm another.
Client agrees that it shall defend, indemnify, save and hold NIYASH (PTY) LTD harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with NIYASH (PTY) LTD development of the Clients web site.
This includes liabilities asserted against NIYASH (PTY) LTD, its subcontractors, agents, clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employees or assigns. Client also agrees to defend, indemnify and hold harmless NIYASH (PTY) LTD against liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Clients web site.
This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization or business.
Assignment of Project NIYASH (PTY) LTD reserves the right to assign subcontractors to this project to ensure the right fit for the job as well as on-time completion. NIYASH (PTY) LTD warrants all work completed by subcontractors for this project. When subcontracting is required, NIYASH (PTY) LTD will only use industry recognized professionals.
Ownership to Web Pages and Graphics
Copyright to the finished assembled work of web pages produced by NIYASH (PTY) LTD and graphics shall be vested with the Client upon final payment for the project. This ownership is to include design, photos, graphics, source code, work-up files, text and any program(s) specifically designed or purchased on behalf of the Client for completion of this project. Stock Images provided by NIYASH (PTY) LTD remain the property of NIYASH (PTY) LTD, unless purchased by the Client.
All materials developed under this contract and intended for publication to the web remain the property of NIYASH (PTY) LTD until such time as Client has tendered final payment for the work described herein.
At this time, all materials become the property of Client and may be used by them as desired. Should Client use materials described in this contract on the web before the tender of final payment, then this contract is breached and appropriate penalties will apply.
NIYASH (PTY) LTD retains the right to display graphics and other web design elements as examples of their work in their portfolios.
Laws Affecting Electronic Commerce
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect and defend NIYASH (PTY) LTD and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Clients exercise of Internet electronic commerce.
Client also understands that NIYASH (PTY) LTD cannot provide any legal advice. Design Credit: The Client agrees that NIYASH (PTY) LTD may put a byline on the bottom of the web pages establishing design and development credit.
Client also agrees that the web site created for the Client may be included in NIYASH (PTY) LTD portfolio.
NIYASH (PTY) LTD, its employees and subcontractors agree that, except as directed by the Client, it will not at any time during or after the term of this agreement disclose any confidential information to any person whatsoever.
Likewise, the Client agrees that it will not convey any confidential information obtained about NIYASH (PTY) LTD to another party.
Rights Upon Termination of Agreement
NIYASH (PTY) LTD shall transfer, assign and make available to Client all property and materials in NIYASH (PTY) LTD possession or subject to NIYASH (PTY) LTD control that are the property of Client, subject to payment in full of amounts due, pursuant to this agreement. NIYASH (PTY) LTD also agrees to provide reasonable co-operation in arranging for the transfer or approval of third parties interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.
Cancellation of the project at the request of the Client must be made by registered letter. In the event that work is postponed or cancelled at the request of the Client by registered letter, NIYASH (PTY) LTD shall have the right to retain the original deposit.
In the event this amount is not sufficient to cover NIYASH (PTY) LTD for the time and expense already invested in the project, the Client shall be liable to pay for all work completed at the hourly rate. If additional payment is due, this will be billed to the Client within seven (7) days of notification via registered letter to stop work.
Final payment will be expected under the same terms as listed in point 11 above. Cancellation of project must be submitted by registered letter to NIYASH (PTY) LTD, 21 Gulshan Drive, Riyadh, Verulam, 4339.
The cancellation clause of your contract may further specify:
- all materials delivered to the client to date (in connection with that specific project) must be returned
- use of work done in connection with the project without your consent could result in additional fees or legal action
- you will keep all original artwork, digital files, disks or CDs prepared in connection with the project
An account shall be considered default if it remains unpaid for 30 days from the date of invoice. NIYASH (PTY) LTD shall be considered entitled to remove NIYASH (PTY) LTD and/or the clients material from any and all computer systems, until the amount due has been fully paid.
This includes any and all unpaid monies due for services, including, but not limited to, hosting, domain registration, design and maintenance, sub-contractors, printers, photographers and photography libraries.
Removal of such materials does not relieve the client of its obligation to pay the due amount. Clients whose accounts become default agree to pay NIYASH (PTY) LTD reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
Any disputes arising from this contract will be litigated or arbitrated in Durban, South Africa. This agreement shall be governed and construed in accordance with the laws of the Republic of South Africa.
Client hereby agree to the terms, conditions and stipulations of this agreement on behalf of his/her organization or business. This Agreement constitutes the entire understanding of both parties. Any changes or modifications thereto must be in writing and signed by both parties. Arbitration
Any disputes in excess of R15000.00 (or the maximum limit for small claims court) arising out of this agreement shall be submitted to binding arbitration before a mutually agreed upon Arbitrator suitor pursuant to the rules of the South African Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof.
The Client shall pay all arbitration costs, reasonable attorneys fees and legal interest on any award or judgment in favour of NIYASH (PTY) LTD. In the event that an Arbitrator cannot be mutually agreed upon, that an Arbitrator shall be appointed by the South African Arbitration Association. The provision of this Arbitration clause shall not preclude either party from approaching a Court of competent jurisdiction on an urgency basis for any necessary interdictory and/or ancillary relief pending determination of the dispute by Arbitration as provided for in terms of this clause.
Terms and Conditions
NIYASH (PTY) LTD does not warrant that the functions contained in these web pages or the Internet web site will meet the Clients requirements or that the operation of the web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the web pages and web site is with the Client.
In no event will NIYASH (PTY) LTD be liable to the client of any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation or inability to operate these web pages or web site, even if NIYASH (PTY) LTD has been advised of the possibility of such damages.
If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
The agreement contained in this “Web Site Design Contract” constitutes the sole agreement between NIYASH (PTY) LTD and the Client regarding this web site. Any additional work not specified in this contract must be authorized by a written change order. All prices specified in the quotation will be honoured for thirty (30) days. Continued services after that time will require a new agreement.
This agreement constitutes the entire understanding of NIYASH (PTY) LTD and Client. Both parties warrant that they have read and understand the terms set forth in this agreement. This agreement terminates and supersedes all prior understanding or agreements on the subject matter hereof. Any changes or modification thereto must be in writing and signed by both parties The Client agrees to the terms of this agreement on behalf of his or her organization or business.
Domicilium Citandi et Executandi and Noticies:
The parties choose as their domicilium citandi et executandi, their addresses mentioned below, but such domicilium may be changed by either party by written notice from such party to the other with effect from the date of receipt or deemed receipt by the latter of such notice.
Any notice, demand or other communication addressed by either party to the other at the latter’s domicilium in terms herewith, for the time being, and sent by prepaid registered post, will be deemed to be have been received by the latter on the 7th business day following the date of posting.
This provision will not be construed as precluding the utilisation of other means and methods (including telefacsimile and email) for the transmission or delivery of notices, demands and other communications, but no presumption and delivery will arise if any such other means or method is used.