TERMS & CONDITIONS
Comms 101 (Pty) Ltd) hereafter called “Comms 101” offers its clients Web Design and Development, Mobile App Design and Development, Standalone App Design and Development, Graphic Design, Web Hosting, Domain and Search Engine Optimisation and other related services complying with international standards. The following Terms and Conditions document is a legal agreement between “Comms 101” and YOU “Customer/Client” for the purposes stated in the contract. These Terms and Conditions set forth the provisions under which the Customer may use the services rendered by us. By communicating your acceptance either verbally or in writing, you have offered to take up the relevant services of Comms 101 set out below. Our Agreement starts on the date that you sign the first contract or the date we start work. You may not withdraw that offer without our consent except as stipulated under the Terms. This does not affect your statutory rights. If you are a new customer and/or there is no existing agreement with Comms 101, the following are our standard terms of working.
WEB DESIGN AND DEVELOPMENT
STATEMENT OF WORK – OFFER AND ACCEPTANCE
Comms 101 does not use a standard / templated web design and development costing model. Our web design and development quotes are unique and depend on your specific requirements. When you place an order to design and develop a website from Comms 101, the order represents an offer to Comms 101 to purchase the website. No contract for the supply of services to you comes into existence until Comms 101 sends an invoice to you for payment. The invoice equals acceptance by Comms 101 of your offer to purchase services from Comms 101 and this acceptance of work is a valid contract between you and Comms 101 regardless of whether you receive the invoice. Comms 101 has the right to withdraw from contract at any time prior to acceptance. If a functional specification and a set of testing criteria are included within the quotation, Comms 101 is responsible for fulfilling the testing criteria as the sole criteria for completion of the contract. You agree that the standard development platform of Comms 101 is an agreeable platform for development of the website and all acceptance testing will occur only on the standard development platform.
You further agree that any requests relating to hardware or software outside the standard development platform will be deemed additional work. You agree to provide any needed information and content required by Comms 101 in good time to enable Comms 101 to complete a design or website work as part of an agreed project. The time given to you for production of your website is dependent upon you giving us relevant information and art work and signing of any proofs in good time, otherwise our progress will be delayed. In the case you provide all the necessary contents for the website within the stipulated time, we will endeavour to get your site live as soon as possible. If you do not provide us with the art work or relevant information to complete the site within the six weeks of the initial order, the contract will be deemed completed. In such an event, all outstanding payments shall be paid immediately. Comms 101 shall make every effort to ensure sites are designed to be viewed by the majority of visitors. Comms 101 guarantees to provide maximum possible functionality with the allocated hours and funds. However, this excludes any third party software which is provided with no guarantee.
You are responsible for all the information and content required. You will need to get permission for any material / content to be incorporated in your website from the relevant person or company if needed. Comms 101 will not be held responsible for information acquired from you. You agree to hold harmless, protect and defend Comms 101 from any claim or suit that may arise as a result of using the supplied media and content. Copyright of the completed web designs, images, pages, code and source files created by Comms 101 and any other Intellectual properties belong to Comms 101 unless otherwise agreed to before the contract has started. These Terms of the Agreement grant a non-exclusive limited license to the extent that use of this website is restricted to a single company of yours. You are not permitted to use a design for more than one website without prior written agreement between you and Comms 101. You agree that resale or distribution of the completed files is forbidden unless prior written agreement is made between the Customer (you) and Comms 101. You agree to abide by the terms of any third party software or media included within any work done for you. Examples of this include, but are not limited to, Google maps, Facebook, Instagram, RSS feeds, Open Source GPL Software etc.
Comms 101 reserves the right to refuse to handle: Any media that is unlawful or inappropriate, constitutes harassment, racism, violence, obscenity, harmful intent or spamming, a criminal offence, or infringes privacy or copyright; that contains a virus or hostile program. During a website project it is important that you communicate information to Comms 101 to achieve the required result. If you fail to provide information and images related to the website in due time, it will lengthen the project and delay the delivery. Comms 101 will not take responsibility for loss of earnings or any other losses on account of the delay. If you take more than 6 weeks to provide information or artwork directly related to the design or/and development of the project then Comms 101 deems the project as complete and has the right to demand payment in full.
Payment is to be made in two instalments unless otherwise stated before agreeing the contract. Generally, we take 50% of the total project fee upfront, with the balance being due before any content is published to your live domain. Comms 101 reserves the right to accept alternative terms of payment at our own discretion, which terms will be made clearly apparent in writing when providing quotations / cost estimates for any project. Websites will only go live once the balance of the total fee has been settled in full.
Comms 101 bases its cost for individual projects on hours and will apply an allocation of the maximum hours needed for any given project. In cases where a project exceeds the amount of hours quoted for (through no fault of our own), you agree to pay any additional charges at our standard hourly rate. Our current standard rate is R500.00 per hour, but Comms 101 reserves the right to discount this hourly rate without effecting these (or any project specific) Terms & Conditions.
If the Customer requests design or content alterations to pages that have already been completed, new pages, or different functionality other than that specified in the original quotation, Comms 101 reserves the right to quote separately for such alterations.
The above would include any alterations made to content during the project lifecycle. Given that the nature and time-consumption that such changes could incur are wide-ranging, Comms 101 reserves the right to evaluate such content changes and whether to incur new costs for these on a case-by-case basis. In such an event, Comms 101 will inform the client of the cost of any such work that Comms 101 deems "additional" and which, according to our discretion, warrants additional costing. Such additional work will only be done after receiving permission, in writing, to do so from the client. This payment will be added to the final bill which the client will receive and which will become due, in the event of online work / websites before the site goes live.
Prices are subject to change without notice. This includes our hourly rate. However, we will inform you before invoicing for any such changes in our hourly rate. All quoted prices are exempt of VAT unless otherwise specified. All invoices must be paid in full within 7 days of the invoice date, except where otherwise agreed (at Comms 101’s discretion). Comms 101 reserves the right to decline further work on a project if there are invoices outstanding with the Customer. Comms 101 reserves the right to remove its work for you from the Internet if payments are not received according to the stipulations herein. After completion of the site, you or a third party of your choice may wish to edit your website code yourselves to make updates. However, you agree that in so doing you assume full responsibility for any issues which occur as a result of changing the code yourselves. If you or a third party of your choice edits the website code and this results in functionality errors or the pages / content displaying incorrectly, then Comms 101 reserves the right to quote for work to repair the website.
You understand that any web hosting may require a separate contract with a web hosting service. We host our domains on behalf of you through various suppliers which allow Comms 101 full access in order to setup, configure and manage at our discretion.
Comms 101 reserves the right to refuse service and/or access to its servers to anyone. Comms 101 reserves the right to move your data to a different server with no previous notice.
SUPPORT, MAINTENANCE & HOSTING
Support is available from our office on +27 64 507 3474 or via email at email@example.com, but we reserve the right to suspend this service from time to time for ongoing maintenance. Maintenance policies / contracts are defined on a unique case-by-case basis, supplied in writing at the time of signing such a maintenance contract. In situations where a Customer has not paid according to the terms set out in their Maintenance Contract, Comms 101 reserves the right to immediately suspend all services on-line until outstanding charges are processed successfully and you shall still be liable to pay for the ongoing hosting fees. In addition Comms 101 reserves the right to suspend any other services until the outstanding debt is cleared. Any non-payment of a recurring invoice is subject to a R50.00 administration charge. The customer is responsible for all money owed on the account from the time it was established to the time the Customer sends a return cancellation request. In the event of a dispute you shall not withhold payment. We will investigate any dispute and issue refunds where relevant. Comms 101 reserves the right to terminate/suspend any service if payment schedules / agreements are not being adhered to.
All payment should be made in ZAR (South African Rand) and all prices are displayed ex-VAT unless stated otherwise. U$D (United States Dollar) is accepted for all foreign clients (outside South Africa) with prior agreement by Comms 101.
CANCELLATIONS & REFUNDS
Comms 101 reserves the right to suspend or cancel the hosting service at any time. Fees are charged on a Pre-pay basis and are non-refundable. In addition, some accounts incur set-up fees; these charges are also non-refundable. In this event, customers will be entitled only to a pro-rata refund based upon the remaining period of contract. In case cancellation is initiated by the customer, the customer will be charged our standard hourly charge in addition to any other applicable charge. If a customer contravenes Comms 101 terms of service, a refund will not be issued in the event of cancellation. All Hosting is subject to a 12 month contract. If you do not cancel your agreement 30 days before the end of the current year, then you are liable for another 12 months charge. Comms 101 will notify you six weeks prior to the expiration of your hosting contract of such, at which point you have the option to renew or cancel.
The domain name is registered in your own name and contact details. You should be aware that the domain name is registered through a registrar and as such you shall agree to fully abide by the terms and conditions set out by the third party for such services.
You agree to take all legal responsibility for use of third party domain name and hosting services and supply truthful details to the third party services.
You agree that the information submitted for registration of domain names is then available to the general public via the registrars Whois system. However, Clients who are using their website for non-trading purposes may ask the third party registrar for their contact information not to be included in the registrars Whois system.
You are liable to pay Comms 101 for any domain name registrations including but not limited to further domain name registration fees, domain name transfer charges, yearly domain name renewals, hosting charges, yearly hosting renewals, hosting upgrades, extra disk space, bandwidth and any other related or hidden charges levied by a third party that Comms 101 are not aware. Comms 101 will make every effort to renew your domain names on your behalf. In case it is not renewed, Comms 101 cannot be held responsible for non-renewal of your domains and as a customer you should check to see if your domain names have been renewed annually. You agree to pay the domain name and hosting fees and all renewal fees as soon as demanded by Comms 101. In the event of non-payment, Comms 101 may take ownership of your domain name.
All alterations are to be requested preferably in writing by email, or verbally in case of urgent necessity. We are not liable for the consequences of any requests made to us. After the allocated time for alterations is used up, either in design or coding, Comms 101 reserves the right to advise you as such and send a separate quotation to you and to request payment for any further alterations.
A person who is not a party to this Agreement has no right under The Contracts [Rights of Third Parties] Act 1999 [“The Act”] to enforce any terms of this Agreement or the Terms but this provision does not affect any right or remedy of any third party which exists or is available apart from under the Act. Comms 101 may also pay third parties for links or advertisements; the cost of this will either be deducted from your available hours or added to your bill. Comms 101 will allocate on a monthly basis the time allowed in your contract to do Search Engine Optimization and you will responsible to pay us for that time and any additional hours if requested by you.
GENERAL TERMS APPLICABLE TO ALL PROJECTS
You agree that the information that you have given us or give to us in the future is correct and is in no way misleading, offensive or against any Country’s Law. You will maintain secrecy of your passwords and will be solely responsible for any unauthorized access to your account by any person.
You hereby acknowledge and agree that Comms 101 may terminate its services or involvement with you, at any stage or at any time during the introductory and/or negotiation and/or facilitation process, by giving you written notice thereof, without Comms 101 having to provide you with any specific explanation or reason, or without Comms 101 having any legal or financial obligation or liability towards you of whatsoever nature.
This Agreement may be terminated at any time if:
- (a) your website contains any material which is illegal, pornographic, radically abusive or is likely to cause offence or to damage Comms 101 reputation;
- (b) you commit any material breach of this agreement;
- (c) you enter into liquidation whether compulsory or voluntary, as a receiver or administrator appointed, enter into any arrangement with your creditors or cease or threaten to cease to trade;
- (d) you stop paying Comms 101 according to the terms set out in any contractual agreement. However, we will give you seven days to meet any such obligation before terminating our Agreement.
- (e) Should you fail to respond to reasonable attempts made by Comms 101 to obtain content / information required to complete any pending projects of whatsoever nature that prevents Comms 101 from completing our agreed upon tasks timeously, including those for which you may have already paid a deposit.
- (f) You have not responded to our requests for content which prevents us from completing our deliverables within 90 days (three months) from the date upon which a deposit was paid. In such cases the deposit paid will be forfeited and used at our discretion to defray any design costs that may have been incurred. Should you provide us with the content we require AFTER 90 days, Comms 101 reserves the right to decide whether we will continue to work with you. Should we so decide, we reserve the right to approach any such resumption as a new project in its entirety, subject to new payment terms / contract.
SUSPENSION OF SERVICES
We reserve the right to suspend all or any of the services that we have given to you, including those that have been already paid for should any of these terms not be met.
CHARGES AND PAYMENTS
The price that we charge you for our services is stated in your contract. You will pay to us all the charges on their due dates. Payment will either be in advance or by invoice. We reserve the right to make that decision. You can and may request additional services at any time after your Agreement has started. If we agree to provide you with these services you will pay the additional services that they incur. We will charge you for any administration costs and loss of work that have occurred for any payment not being met for whatever reason or that has not been honoured by your bank or any method of payment that has been made by you to us. The charge for these defaults for non-payment and indeed any default of payment regardless of what it is or how it has been caused will be 100% of all outstanding order values. Should this debt have to be recovered in the Court additional charges including all legal and recovery costs will be charged to you. As a director or owner of your business you also give us your personal guarantee that all monies owed to us if your business is unable to meet them will be paid by you.
All services are rendered ensuring its quality. We generally take upfront and subsequent payments. If at any time in the service rendering process, you are not satisfied with the quality of work, you may bring it to our attention. We will investigate and decide whether you have just cause to require a refund. Such judgements will be made on a case-by-case basis. In general, we will not refund payments on time spent/services rendered, since Comms 101’s charges are based on the hours of work spent on the project. If a customer contravenes Comms 101 terms of service, a refund will not be issued in the event of cancellation. Refunds are only possible if we are unable to render the services to you. The refund will be based on the hours that you have paid for but not used. No refunds will be given for hours spent on research, development, design and administration.
You are not entitled to a refund of any of our services if you:
- Decide to discontinue the use of our services
- Find our charges to be higher compared to others and you can’t afford the services
- Choose the wrong specifications for the service
- Knew about the particular fault prior to purchase; and/or
- Were responsible for causing the fault.
You represent to Comms 101 and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Comms 101 for inclusion in Webpages are owned by you, or that you have permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Comms 101 and its subcontractors from any claim or suit arising from the use of such elements furnished by you.
Unless explicitly specified, it is assumed that:
- Comms 101 will hold all copyright to the site it designs unless otherwise stated in writing
- It will remain the sole intellectual property of Comms 101
- Comms 101 will own the intellectual property rights in any service given to you.
- You will have no resell rights.
If you require copies of your site, you will be charged by the hour for any admin costs that are incurred including postage and packaging. Comms 101 will not be responsible for any Copyright infringement or Domain name infringement against any law in any land brought on by your website.
Comms 101 respects privacy of its clients. Comms 101 will not monitor, edit, or disclose any personal information about your accounts, including hosted content, without your prior consent, unless Comms 101 has a good faith belief that such action is necessary to:
- (a) comply with legal process or other legal requirements of any relevant authority;
- (b) protect and defend the rights or property of Comms 101;
- (c) enforce the terms of a Task Order, this Agreement or these Terms and Conditions; or
- (d) protect the interests of users of Comms 101’s Hosting Services. You acknowledge and agree that your IP address is transmitted and recorded with each message sent from the Hosting Service.
CONFIDENTIALITY & PROPRIETARY RIGHTS
In this Agreement, “Confidential Information” shall mean any and all technical or business information, including third party information, furnished in connection with this Agreement, in whatever tangible form or medium, or disclosed by you to Comms 101 (including, but not limited to, product/service specifications, prototypes, computer files and programs, models, drawings, marketing plans, financial data and personnel statistics). Notwithstanding the termination, expiration or cancellation of this Agreement Comms 101 agrees to treat such Confidential Information as confidential for a period of ONE year from the date of receipt of same unless otherwise agreed to in writing by you. You will keep the details of the Agreement and any such information which you may learn about Comms 101, our business technology and our clientele, strictly confidential and agreed not to disclose it to any third party. Upon termination, cancellation or expiration of this Agreement for any reason or upon request of the disclosing party, all Confidential Information, together with any copies of same as may be authorized herein, shall be returned. You agree that if Comms 101 suffers any loss or there is a failure from your end to meet any of these obligations, you agree to pay us directly and immediately for any proven losses that may occur.
The obligations imposed in this Article shall not apply to any information that:
- (a) is known to the public (through no act or omission of Comms 101 in violation of this Agreement);
- (b) is lawfully acquired by Comms 101 from an independent source having no obligation to maintain the confidentiality of such information;
- (c) was known to Comms 101 prior to its disclosure under this Agreement;
- (d) was independently developed by the Comms 101; or (e) is required to be disclosed by governmental or judicial order.
The requirements of use and confidentiality set forth herein shall survive the expiration, termination or cancellation of this Agreement.
LIMITATION OF LIABILITY
The entire risk as to the quality and performance of the WebPages and website is with you. (a) Comms 101 shall not be liable to you for any loss or damage [including but not limited to loss of data, loss of profits/sales, website downtime, loss of business or staff or management time incurred] caused or arising directly or indirectly out of Comms 101’s services provided under this Agreement [except to the extent to which it is unlawful to exclude such liability under English Law]. (b) Notwithstanding the generality of (i) above Comms 101 expressly excludes liability for any indirect, special, consequential or incidental loss or damage which may arise in respect of the services to be provided under this Agreement. (ii) In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and Comms 101 becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the whole amount paid by you during the preceding Initial Period or Renewal Period, as the case may be. (iii) Comms 101 does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Comms 101, its employees, agents or authorized representatives. We will not be liable to make any payment to you including the return of deposits either in part or full for any delay or failure to meet any of our obligations under this or any other agreement made to you by either verbal, written or electronic means. This includes [but is not limited to] any events that are beyond our control such as our computers, technology in general, telecommunication Comms 101 equipment including satellite and internet suppliers. We are liable to you to cover the contract and services provided to you as long as none of the other points in this contract are broken by you.
You agree to use all Company services and facilities at your own risk and agree to defend, indemnify, save and hold Comms 101 harmless from any and all demands, liabilities, losses, costs and claims, including reasonable Attorney’s fees asserted against Comms 101, its agents, its customers, officers and employees, that may arise or result from any services provided or performed or agreed to be performed or any product sold by you, your agent, employees or assigns. You agree to defend, indemnify and hold harmless Comms 101 against liabilities arising out of: (a) any injury to person or property caused by any products sold or otherwise distributed in connection with Comms 101 server; (b) any material supplied by you infringing or allegedly infringing on the proprietary rights of a third party; (c) copyright infringement; (d) any defective products sold to customers from Comms 101 server and (e) claims arising from omission to inform or implement the updates needed for the site. You agree that this indemnification extends to all aspects of the work completed by Comms 101, including but not limited to website content and choice of domain name.
- Comms 101 makes no warranties with regard to the site and its contents. Comms 101 cannot guarantee the functionality or operations of their website or that it will be uninterrupted or error free, nor does it warrant that the contents are current, accurate or complete.
- Comms 101 is not responsible for any content published on your website that infringes any law, copyright or compliance. Customer is solely responsible for the security, confidentiality and integrity of all the content and messages received, transmitted through or stored on the web/server hosting service.
- Comms 101 will not be responsible for any damages or losses your business may suffer. Comms 101 makes no warranties of any kind, express or implied for services we provide.
- Comms 101 does not back up your data/website and while every attempt would be made in the unlikely event of any corruption or hardware failure.
- Comms 101 disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all services interruptions caused by Comms 101 and its employees. Comms 101 reserves the right to revise its policies at any time.
- Comms 101 hands over files on request, once full payment has been made. However, the intellectual rights are the property of Comms 101 unless stated otherwise at the time of contract. On handover of files from Company to you, you shall assume entire responsibility in ensuring that all files are functioning correctly before use. While every effort is made to make sure files are error free, Comms 101 cannot guarantee that the display or functionality of the web design or the website will be uninterrupted or error free. If, after handover of files, errors are found in code Comms 101 has created and the standard development platform, domain name set-up and hosting set-up are the same as when work began, then Comms 101 can correct these errors for you free of charge for a period of 3 months, after acceptance of the work. After the 3-month period, Comms 101 reserves the right to quote separately for any work involved in correcting an error. If, after handover of files, errors are found in code Comms 101 has created and the standard development platform, or the domain name set-up or hosting set-up have been changed, Comms 101 can correct errors and reserves the right to quote separately for any additional work needed as a result of changes to the browser software, domain name set-up or hosting set-up.
- Comms 101 may from time to time recommend to you that updates are needed to your site, including but not limited to new legislation compliance, software compatibility and web standards. Comms 101 reserves the right to quote for any updates as separate work.
- You agree that Comms 101 is not liable for any failure to inform or implement these updates to their site.
- You agree that Comms 101 is not liable for any failure to carry out services for reasons beyond its control, including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on a major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
- You agree that Comms 101 is not liable for any bugs, performance issues or failure of third party software as they are open-source softwares distributed under the GPL (“GNU General Public License”) and are maintained and developed by a community of thousands of users and Companies. Any bugs, performance issues or failure with the software will be directed to the respective Development community.
We will not be liable to return any art work to you or any other material that you supply to us for the purpose of providing our services to you. To maintain the quality of our service to our clients we reserve the right to change these terms and conditions and the nature of our services, which we have agreed to provide to you by giving you at least 28 days written notice. This notice will appear on our website. You may not transfer any of your rights or obligations under this Agreement to anyone else without our prior or written agreement. If you wish to write to us, please send your letter to our main office by means of a recorded method. Any other method apart from email with proof of sending will be classed as unsent.These terms and conditions together with the order schedule, work sheets and any additional attachments form the whole of our agreement. They apply in place of any terms and statement made to you by any Comms 101 representative.
All notices must be in writing. Notices to Comms 101 must be addressed to 171 De Akkers, Hadley Street, Oak Glen or such other address as is advised by Comms 101. Notices to the Customer will be considered validly given if addressed to your address as shown in the agreement or such other address as is advised by you to Comms 101 in writing.
In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. No waiver of any rights Comms 101 has under this Agreement shall be deemed from any failure by Comms 101 to enforce any part of this Agreement.
The signatory to this Agreement warrants that he/she has the authority to commit the Customer to this Agreement and further confirms that this Agreement is made between two businesses. If any of the Customer’s payments are made by a credit card which is not in the name of the Customer then the Customer warrants that it has authorised payment to be made in this way and it is for the Customer to reimburse the card holder for any payment made on its behalf.
This Agreement and Terms shall be governed by and subject to the laws of South Africa without regard to its rules concerning conflicts of law. The parties hereto irrevocably consent that all disputes which may arise out of or in connection with this Agreement or the Terms shall be subject to the exclusive jurisdiction of the courts of South Africa.
© Comms 101 (Pty) Ltd 2018
Company registration no: 2015 / 305990 / 07