Date: 20th August 2012
The provisions of the General Terms and Conditions of Mediatorr Digital Marketing cc shall form an integral part of any contractual agreement between Mediatorr Digital Marketing CC and the client, with the exception of any clauses specifically withdrawn or replaced within the client proposal.
SECTION 1 – CONTRACT DOCUMENTATION
1.1 The Client Proposal or the latest revised draft thereof shall become the actual contractual agreement between Mediatorr Mediatorr and their client, for the work specified, once the said document has been dated and signed by both parties in the presence of witnesses.
1.2 The signed Client Proposal incorporating the clauses of the General Terms and Conditions shall constitute the sole contractual agreement between Mediatorr and their client, for the work specified, and will have effect, once dated and signed by both parties. In the event of any conflict, any special clauses of the signed Client Proposal shall have contractual precedence over the clauses of the General Terms and Conditions.
SECTION 2 – TERMS AND CONDITIONS
2.1 Period of Validity
2.1.1 The quotation (Client Proposal), if not accepted by the client, within one calendar month of date of offer, may be withdrawn or subject to review.
2.1.2 Once signed and dated by the authorized representative of both parties, the final (signed) draft of the Client Proposal (as updated or amended prior to signature), shall henceforth become the contractual agreement between the parties.
2.2.1 The said (signed) copy of the Client Proposal, (incorporating the General Terms and Conditions), shall form the entirety of the contractual agreement between Mediatorr Digital Marketing CC (from here on referred to as Mediatorr) and their client. No other conditions, whether implied or expressed are included in this agreement.
2.2.2 No variations to the contract shall have effect, unless committed to writing and signed in agreement by the authorized representatives of both parties, subsequent to the signing of the contract.
2.2.3 Additional work, outside the scope of the original agreement, may be undertaken by mutual written consent. This authorization shall be in the form of a variation order, signed by both parties, which shall be subject to all of the terms and conditions of the original agreement.
2.3 Duration and Termination
2.3.1 The relationship between Mediatorr and the client will commence with the signing of the written agreement and will continue until the service, as agreed, is complete.
2.3.2 If a portion of the agreed work includes maintenance or reporting that is to be remunerated by monthly installments, this service shall continue for the period of twelve (12) months from the date of its inception, unless another term is specified in the client proposal. Thereafter, unless one party gives the other at least 1 (one) months notice in writing, prior to the expiry of the agreed term, the service shall continue on a monthly basis, subject to termination by either party giving the other one(1) months written notice to that effect, but otherwise on the same terms and conditions as herein set out.
2.4 Terms of Payment
2.4.1 Unless a specific payment schedule has been listed in the Client Proposal the following payment clauses shall have effect : –
2.4.2 All lump sum (once off) payments are payable in advance, before commencement of the work in question, and are due for payment within 7 calendar days after date of invoice.
2.4.3 Monthly payments are due for payment on the last day of each month in advance for the month in question.
2.4.4 In the event of failure by the client to make payment by the due date, Mediatorr reserves the right to suspend ALL services, until payment has been made, without any prejudice to its rights under the contractual agreement.
2.4.5 No discounts are applicable for settlement of accounts and it is agreed that Mediatorr shall be entitled to an additional interest charge on any overdue amounts not settled by due date, at a rate of prime plus 6% p.a.
VAT is not applicable.
2.6 Liability to Third Parties
2.6.1 Mediatorr undertakes work explicitly for, and on behalf of the client in terms of the scope of this agreement and acts entirely under the client’s authority in this regard and shall have no liabilities whatsoever to any third party. The client hereby specifically indemnifies Mediatorr against any claims from third parties that may arise in connection with work undertaken on the client’s behalf.
2.6.2 Under no circumstances shall Mediatorr be responsible for any of the content published, or used, on the web sites, belonging to the client. Mediatorr will utilize in good faith, any material supplied by the client, whether in the form of text, photographs, digital, audio or video material etc and may adapt it as they see fit. The client hereby, indemnifies Mediatorr against any claims from third parties for any errors or omissions, breaches of privacy, infringement of copyright and/or other improper usage of intellectual property that may arise in connection with any work done on the client’s behalf.
2.7 Liability to the Client:
2.7.1 Mediatorr’s liability in any dispute that may arise, shall be limited to a maximum amount that does not exceed the fees already paid by the client with respect to the specific services rendered.
2.7.2 Mediatorr shall under no circumstances be liable for any consequential or indirect costs of any kind that may arise from work carried out on the client’s behalf.
2.7.3 Mediatorr will, if required, assist the client to obtain and set up an appropriate hosting arrangement for the client’s website. However the client must satisfy himself as to the adequacy of the proposed hosting arrangement on offer and must finalise the agreement with the host provider himself. Mediatorr will not accept liability for any technical faults, interrupted service or other problems relating to the hosting arrangement.
2.8 Cancellation of the Service:
2.8.1 Upon cancellation of the service, the entire initial setup fee and all outstanding amounts for work done to date shall become immediately due for payment, together with a cancellation fee of 25% of the remaining value of the service.
2.9 Applicable Law:
2.9.1 The interpretation and enforcement of the contractual agreement shall be in terms of South African law.
2.10 Dispute Resolution:
2.10.1 Should a dispute arise between the contracting parties, for alleged non-performance of contractual obligations or in regard to any errors, omissions, late payment or any other breaches of the terms of this contract, then a letter of complaint shall be sent by the complainant to the other party, clearly stating the reasons for the complaint and stating which specific clauses of the contract are relied upon to sustain his case.
2.10.2 The recipient of the said letter of complaint shall have seven calendar days to reply in writing, failing which the matter may be immediately referred to arbitration, at the discretion of the complainant.
2.10.3 If the said reply is received within seven calendar days, but does not satisfy the complainant, a further period of 28 calendar days will be allowed for the amicable resolution of the dispute by negotiation and/ or mediation. If no mutually acceptable outcome can be reached by then, the dispute shall be put before a mutually agreed arbitrator for resolution.
2.10.4 The arbitration of the dispute will be held according to the applicable rules of the Arbitration Foundation of South Africa (AFSA) or its successor. The arbitrator shall give his decision in writing, stating reasons for his conclusions and his decision shall be binding on both parties.
2.11 Client’s Obligation to Provide Information:
2.11.1 The client shall provide sufficient website content, accurate information and branding materials to Mediatorr, before each section of work commences, in order to ensure that the work can start on time. Thereafter the client shall ensure that their obligations to make agreed changes to the website, update information or review and approve progress are always attended to in good time, such that Mediatorr’s work can be carried out efficiently and without experiencing any undue delay to the agreed timelines or deadlines.
2.11.2 If work falls behind schedule, because the requirements of clause 2.11.1 above have not been fully met, by the client, then Mediatorr will be allowed extended time to complete the work in question and any related additional costs would be for the client’s account.
2.12 Confidentiality – Non Disclosure of Information
2.12.1 Mediatorr undertakes to act in good faith and treat any material, supplied by the client as confidential, but may not be held liable for any accidental or inadvertent disclosure of information to third parties that may arise in the course of performing work on the client’s behalf.
2.12.1 The Client Proposal (quotation) is a confidential document and is the intellectual property of Mediatorr, and the client may not utilise any of the information contained therein, until a signed contractual agreement has been put into effect and thereafter all information supplied by Mediatorr to the client may only be utilised in terms of the said contractual agreement. Under no circumstances may any information supplied by Mediatorr be passed on to third parties, unless specifically authorised by Mediatorr in writing.
2.13 Force Majeure:
2.13.1 Should either party, be prevented from fulfilling their full contractual obligations by circumstances entirely out of the control of that party, such as industrial disputes, embargos, delay in delivery by sub contractors or suppliers, civil unrest, natural disasters, changes in applicable law or other statutory restrictions, extended breakdown of electrical, telecommunication or digital services, trade restrictions or any other substantial adverse conditions, affecting industry and commerce in a general way, then the time for performance shall be extended by an appropriate period that is reasonable in regard to the circumstances of the situation. The party, wishing to claim relief under this clause shall notify the other party immediately in writing and shall be entitled to a reasonable extension of time in which to fulfill the affected contractual obligations. If the conditions persist for a period longer than is deemed acceptable by both parties and the performance of the crucial portions of the contracted work have been deemed to have been prevented, then either party will have the right to terminate the Agreement. All moneys outstanding for completed work shall be paid and a determination is to be assessed for an equitable amount to be paid for compensation for work in hand.