TERMS AND CONDITIONS
The Brand Institute – hereafter called “TBI” offers its clients Web Design and Development, Web Hosting, Domain and Search Engine Optimisation Services complying with international standards.
The following Terms and Conditions document is a legal agreement between “TBI” 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 TBI 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 TBI, the following are our standard terms of working.
WEB DESIGN AND DEVELOPMENT
STATEMENT OF WORK – OFFER AND ACCEPTANCE
We do not have a standard web design and development package. Our web design and development quotes are unique and depend on your requirement and job done by us. When you place an order to design and develop a website from TBI, the order represents an offer to TBI to purchase the website. No contract for the supply of services to you comes into existence until TBI sends an invoice to you for payment. The invoice equals acceptance by TBI of your offer to purchase services from TBI and this acceptance of work is a valid contract between you and TBI regardless of whether you receive the invoice. TBI 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, TBI is responsible for fulfilling the testing criteria as the sole criteria for completion of the contract. You agree that the standard development platform of TBI 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 TBI in good time to enable TBI 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 week of the initial order, the contract will be deemed completed. In such an event, all outstanding payments shall be paid immediately.
TBI shall make every effort to ensure sites are designed to be viewed by the majority of visitors. TBI 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 provided by you. You will need to get permission for any material content to be incorporated in your website from the relevant person or company if needed. TBI will not be held responsible for information acquired from you. You agree to hold harmless, protect and defend TBI 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 TBI and any other Intellectual properties belong to TBI 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 TBI.
You agree that resale or distribution of the completed files is forbidden unless prior written agreement is made between Customer and TBI.
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, RSS feeds, Open Source GPL Software etc.
TBI 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 TBI 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. TBI 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 TBI deems the project as complete and has right to demand full payment.
Payment is to be made in two installments unless otherwise stated at the time of contract. Generally, we take half of the total fee upfront, another half after proofs are provided before coding is complete.
TBI will price individual projects based on hours and will apply an allocation of the maximum hours needed for the project. In case a project is to overrun on hours, you agree to pay the charges at our standard hourly rate. The standard rate is R650.00 per hour, but TBI does reserve the right to discount this hourly rate without effecting the terms and 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, TBI reserves the right to quote separately for these alterations.
TERMS AND CONDITIONS
Prices are subject to change without notice.
All quoted prices are VAT free.
All invoices must be paid in full within 14 days of the invoice date, except where agreed at TBI’s own discretion.
TBI reserves the right to decline further work on a project if there are invoices outstanding with the Customer.
TBI reserves the right to remove its work for you from the Internet if payments are not received. 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 page displaying incorrectly, then TBI 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 TBI full access.
TBI reserves the right to refuse service and/or access to its servers to anyone. TBI does not allow excessive download content or non-linked content. We operate a fair usage policy. TBI reserves the right to move your data to a different server with no previous notice.
Support is available from our office on using our client admin panel https://www.thebrand.institute/clients/, we reserve the right to suspend service from time to time for ongoing maintenance.
High bandwidth usage
TBI offers an unlimited usage policy by maintaining very large ratios of bandwidth per customer. In rare cases, TBI may find a customer to be using server resources to such an extent that he/she may jeopardize server performance and resources for other customers. In such instances, TBI reserves the right to impose the High Resource User Policy for the consideration of all customers.
High Data Base Usage
If you exceed the limits on our database products [MySQL] then we will automatically charge you for the additional space you use at our current prices.
HIGH RESOURCES POLICY
Resources are defined as bandwidth, processor utilization or disc space.
TBI may implement the following policy at its sole discretion: When a website is found to be monopolizing the resources available, TBI reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. Customers may be offered an option whereby TBI continues hosting the website for an additional fee.
UPLOADS VIA SCRIPTING LANGUAGES
We limit uploads made via scripting languages- including capital PHP; uploads using PHP are limited to 8MB per file. PAYMENT
All accounts are set up on a pre-pay basis. Although TBI reserves the right to change prices of accounts or services at any time, all pricing is guaranteed for the period of pre-payment. Payment is due every month or after 365 days, following the date the account was established. Customers will automatically be charged again at the end of their pre-pay period unless closure notification has already been given.
In situations where Customer has not paid, TBI will immediately suspend all services on-line until outstanding charge is processed successfully and you shall still be liable to pay for the ongoing hosting fees. In addition TBI reserves the right to suspend the other services until the outstanding debt is cleared. Any non-payment of a recurring invoice is subject to a R50.00 administration charge. 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. TBI reserves the right to terminate/suspend any service if payment schedules are not being followed.
All payment is in ZAR and all prices are displayed VAT Free unless stated otherwise.
CANCELLATION AND REFUNDS
TBI reserves the right to cancel the 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 TBI 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.
Any customer withdrawing payments via Bank or Credit card [a “chargeback”] may be subject to a punitive fee of R300.00, should TBI deem this charge back to be unfair. TBI also reserves its rights to defend such charge backs and recover the original monies from the card issuer.
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 TBI 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 TBI are not aware.
TBI will make every effort to renew your domain names on your behalf. In case it is not renewed, TBI 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 TBI. In the event of non-payment, TBI 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,
TBI reserves the right to advise you as such and send a separate quotation to you and to request payment for any further alterations.
SEARCH ENGINE OPTIMISATION
By entering in to an agreement (verbal or written) for SEO, you will pay TBI for the contract period set and the hours allocated to do the job.
In case of any delay in payments, TBI reserves the right to suspend the service and not work on the site. However, you shall be charged for the hours allocated. This will affect your results in the search engine. However, TBI, at its discretion may decide to reallocate these missed hours, if possible.
Unless mutually agreed, this agreement shall last for a period of 6 Months. Either you or TBI may terminate this Agreement by giving to the other party 30 days written notice of its intention to do so.
You shall pay the monthly fee every month [by direct debit, standing order or credit card] based on the number of hours of work invoiced: the first payment being due upon entering into this Agreement and subsequent payments being due on the same day each month. You cannot withhold or refuse payment on the plea that the result of TBI’s work is not satisfactory. In the event of the Customer failing to make monthly payment on the due date TBI is entitled to take any or all of the following remedies in any order it sees fit: (a) Request immediate payment of all monthly fees due during the remainder of the contract Period; (b) add interest to the debt at 1% per annum above the prime rate from the due date to the date of payment; (c) issue written demands for all sums due, each such demand attracting a fee of R300.00, payable by you; (d) cease working on behalf of you until all overdue sums are paid; (e) deduct all outstanding sums[including interest and charges set-out above] from your credit card. You hereby authorise such deductions from your credit card or bank account
You understand that Search Engines are independent companies who select the rank sites using their own criteria. We will optimize your pages to enable them to appear on the regional listings/search engines; however TBI cannot guarantee appearance and position on search engines. While you must follow TBI’s recommendations for optimizing its website for Search Engine Listing in order to maximize its chances of increasing its Search Engine exposure you acknowledge that TBI does not and cannot guarantee that Customer’s website ranking will be improved in any Search Engine listing. To enable TBI to optimize your websites you must provide FTP login details for the website and you acknowledge that the TBI cannot undertake any optimization until such FTP login details have been provided.
TBI’s list of the most important Search Engines includes those Search Engines that TBI considers to be the most important with regard to popularity, language, content, location, coverage or any other criteria that TBI using its expertise considers suitable.
TBI and the Customer will choose a suitable set of words to search for in the Search Engines. This will be used as a test phrase to assess how your website is ranking in Search Engines.
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.
TBI 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.
TBI 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.
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 pass words and will be solely responsible for any unauthorized access to your account by any person.
You hereby acknowledge and agree that TBI 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 TBI having to provide you with any specific explanation or reason, or without TBI 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 TBI 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 TBI.
However, we will give you seven days to meet any such obligation before terminating our Agreement.
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 about the refund. In general, we will not refund payments on time spent/services rendered, since TBI’s charges are based on the hours of work spent on the project. If a customer contravenes TBI 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 TBI and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to TBI for inclusion in Webpages are owned by you, or that you havepermission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend TBI 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: TBI will hold all copyright to the site it designs unless otherwise stated in writing; It will remain the sole intellectual property of TBI; TBI 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. TBI will not be responsible for any Copyright infringement or Domain name infringement against any law in any land brought on by your website.
TBI respects privacy of its clients. TBI will not monitor, edit, or disclose any personal information about your accounts, including hosted content, without your prior consent, unless TBI 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 TBI; (c) enforce the terms of a Task Order, this Agreement or these Terms and Conditions; or (d) protect the interests of users of TBI’s Hosting Services. You acknowledge and agree that your IP address is transmitted and recorded with each message sent from the Hosting Service.
CONFIDENTIALITY AND 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 TBI (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 TBI 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 TBI, 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 TBI 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 TBI in violation of this Agreement); (b) is lawfully acquired by TBI from an independent source having no obligation to maintain the confidentiality of such information; (c) was known to TBI prior to its disclosure under this Agreement; (d) was independently developed by the TBI; 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) TBI 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 TBI’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 TBI 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 TBI 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) TBI 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 TBI, 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 TBI 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 TBI harmless from any and all demands, liabilities, losses, costs and claims, including reasonable Attorney’s fees asserted against TBI, 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 TBI against liabilities arising out of: (a) any injury to person or property caused by any products sold or otherwise distributed in connection with TBI 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 TBI 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 TBI, including but not limited to website content and choice of domain name.
TBI makes no warranties with regard to the site and its contents. TBI 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.
TBI 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.
TBI will not be responsible for any damages or losses your business may suffer. TBI makes no warranties of any kind, express or implied for services we provide. TBI does not back up your data/website and while every attempt would be made in the unlikely event of any corruption or hardware failure. TBI 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 TBI and its employees. TBI reserves the right to revise its policies at any time.
TBI hands over files on request, once full payment has been made. However, the intellectual rights are the property of TBI 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, TBI 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 TBI has created and the standard development platform, domain name set-up and hosting set-up are the same as when work began, then TBI 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, TBI reserves the right to quote separately for any work involved in correcting an error.
If, after handover of files, errors are found in code TBI has created and the standard development platform, or the domain name set-up or hosting set-up have been changed, TBI 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.
TBI 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. TBI reserves the right to quote for any updates as separate work. You agree that TBI is not liable for any failure to inform or implement these updates to their site.
You agree that TBI 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 TBI 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 TBI representative.
All notices must be in writing. Notices to TBI must be addressed to 4 Vlier Place, Bloubosrand, Randburg, 2188 or such other address as is advised by TBI. 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 TBI 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 TBI has under this Agreement shall be deemed from any failure by TBI 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. GOVERNING LAW
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.
© The Institute of Branding and Design (Pty) Ltd 2015 Company registration no: 2015 / 001535 / 07