Standard Terms And Conditions Of Service
1.1. “this Agreement” means these Standard Terms and Conditions of Sale as read with The Company’s service contract;
1.2. “The Company” means Cordell Brewer T/A Send.Marketing, including its associated and subsidiary companies, successors-in-title and assigns;
1.3. “The Client” means the party indicated on the service contract, alternatively the party to whom The Company is providing the Service;
1.4. “the Service” means the service provided by The Company to The Client at the latter’s specific instance and request;
1.5. “Service contract” means The Company’s written hard copy service contract that may exist in addition to these standard terms and conditions.
2. This Agreement
2.1. This Agreement shall govern the provision of Services by The Company to The Client and will take precedence over any other terms and conditions which may be contained elsewhere. No variation to this Agreement will be valid unless recorded in writing in a single document and signed by both parties. The existence of this Agreement in electronic format only shall not deviate for any reason whatsoever from the validity of the terms and conditions contained herein.
3. Changes To This Agreement
3.1. The Company shall have the right at any time to change or modify the terms and conditions of this agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on TakeMeOnline.co, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of TakeMeOnline.co by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
4. Credit Facilities
4.1. The Client acknowledges that the granting of any credit or credit facilities to it by The Company is in the sole discretion of The Company.
4.2. The Company reserves the right to suspend or withdraw The Client’s credit facilities at any time and acknowledges that The Company can call for payment of the full outstanding balance in such circumstances.
4.3. The Company also reserves the right to amend or alter existing terms of credit between The Client and itself.
5. Orders For Services
5.1. The Company shall be entitled to insist on a written order being received from The Client from time to time in The Company’s discretion.
5.2. Any order received by The Company, whether orally or in writing, shall constitute an irrevocable offer to purchase the Services on the terms and conditions pertaining to each transaction.
5.3. In the event of The Client not entering into a fixed term service contract with The Company (either for 6, 12 or more months), this agreement may be terminated by one party giving the other one calendar month’s written notice.
6. Customer’s Compliance
6.1. The Client acknowledges that it is imperative for it to comply with all prevailing laws and regulations relating to the Service.
6.2. In particular, The Client will not violate any applicable laws and will not make use of phishing, spamming for any illegal or distasteful business practices.
6.3. The Client acknowledges that should it, for any reason whatsoever, have been the cause, either directly or indirectly, of a breach of the laws and regulations pertaining to the utilisation by The Client of the Service, The Company shall have the right to recover whatever damages it may suffer directly from The Client.
6.4. The Client is responsible for all use of The Client Account/s (under any screen name or password) and for ensuring that all use of The Client’s Account complies fully with the provisions of this Agreement. The Client shall be responsible for protecting the confidentiality of The Client password/s, if any.
7.1. The Company’s prices will be set out on its quotations either in writing or verbally given to Customers.
7.2. The Company reserves the right to change the prices of the Service from time to time in its discretion.
7.3. The Company reserves the right to vary any quoted price by adding thereto increased costs which need to be levied due to circumstances beyond The Company’s control, for example fluctuations in the exchange rate of the Rand.
8.1. The Client shall effect payment for the Services to The Company strictly within the period specified by The Company in its invoice and/or statement.
8.2. The Client will be liable to pay The Company interest should any sum be paid late.
8.3. Such interest will be levied at the prime lending rate charged from time to time by Standard Bank plus 2% (two percent).
8.4. The Client shall not be entitled, for any cause whatsoever, to withhold, deduct from or defer any amount due by it to The Company.
9. Delivery Of Service
9.1. The Company undertakes to take all necessary reasonable steps to ensure the provision of the Service to The Client expeditiously and continuously.
9.2. However The Company points out that due to the nature of the Service, interruptions and delays in the provision thereof can and do occur and any such delay or failure to provide the Service will not constitute a breach of these terms and conditions on the part of The Company. The Client will be liable to effect payment thereof regardless.
9.3. The Client shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of the Services and all charges related thereto.
10. Ownership And Risk
10.1. The Client acknowledges that ownership in and to all of the intellectual property which is provided to The Client in providing the Service is owned by The Company.
10.2. The Company is entitled to take all reasonable steps to protect such intellectual property against infringement even if this involves jeopardising the provision of the Service to The Client.
11.1. The Company does not warrant that the Service will provide The Client with the exact form of performance The Client may have required.
11.2. The Client acknowledges again due to the nature of the Service that the capacities and scope of the Service might fall short of The Client’s requirements but same shall not give rise to The Client having any right to withhold payment.
12.1. Notwithstanding that The Company is providing the Service to The Client, the latter shall not be entitled to transfer or otherwise deal in the Service with third parties.
12.2. The Client shall not attempt to copy, replicate or otherwise take advantage of the Service to the benefit of third parties.
13. Confidential Information
13.1. The parties acknowledge that during the provision of the Service, confidential information may be exchanged between them and each of them acknowledge the existence of such confidential information and undertake to keep same confidential.
14. Limitation Of Liability
14.1. The Company will not be liable for any loss or damage of any nature and howsoever arising which may be suffered by The Client as a result of or in connection with the utilisation of the Service by The Client, whether indirect, consequential, delictual or otherwise.
15.1. If The Client breaches any provision of this Agreement, The Company shall be entitled to terminate the Agreement and to suspend the provision of the Service with immediate effect.
16. Force Majeure
16.1. The Company will not be liable to The Client for failing to perform any of its obligations in terms of this Agreement as a result of an act of God or any cause beyond its control.
17. Legal Provisions
17.1. This Agreement and all transactions between The Client and The Company shall be governed by and construed in accordance with the laws and regulations of the Republic of South Africa.
17.2. The South African Courts will have exclusive jurisdiction to adjudicate any dispute arising from or related to this Agreement.
17.3. The Company shall, at its option, be entitled to institute action in the Magistrate’s Court notwithstanding that the amount of its claim exceeds the jurisdiction of such Court. This provision shall not preclude The Company from instituting action against The Client in any other competent Court with jurisdiction.
17.4. A certificate issued by any manager or director of The Company, whose authority, appointment and signature it shall not be necessary to prove, that purports to certify any indebtedness of The Client to The Company, provision of the Services to The Client, or any other fact shall constitute prima facie proof of such indebtedness or delivery or The Company’s ownership or any other fact.
17.5. The Client shall be liable for The Company’s legal fees in the event of The Company enforcing or defending its rights hereunder on an attorney and own client scale, including Counsel’s fees on brief, tracing agent’s fees and collection charges.
18.1. The Client chooses its physical address as set out in this Agreement as its domicilium citandi et executandi for all purposes under this Agreement. The Client may change its domicilium by furnishing The Company with 7 (seven) days written notice of its new physical address.
18.2. The Company chooses its physical address as published on it’s website as its domicilium citandi et executandi for all purposes under this Agreement. The Company may change its domicilium by furnishing The Client with 7 (seven) days written notice of its new physical address, or by updating its address details on the website.
19.1. This Agreement constitutes the entire agreement between the parties. No party shall be entitled to rely upon any term, warranty, guarantee, condition or representation, unless it is contained herein.
19.2. No amendment of this Agreement and extension of time, waiver or relaxation of any of the provisions of this Agreement shall be binding, unless recorded in a single document signed by both of the parties.
19.3. No relaxation or indulgence shall prejudice or be deemed to be a waiver of any of The Company’s rights hereunder.
19.4. Each provision of this Agreement is severable, the one from the other. If any provision is found to be defective, unlawful or unenforceable for any reason, the remaining provisions shall continue to be of full force and effect.
19.5. The rule of construction that this Agreement be interpreted against the party responsible for drafting this document shall not apply.
19.6. Provisions in this Agreement that by their very nature are intended to survive the termination, cancellation or completion of a sale shall survive such termination, cancellation or completion.
Website development and maintenance terms and conditions
20.1. The Client authorizes The Company to develop a website for The Client for the domain mentioned above. The Client authorizes The Company to access Client’s web host server to upload and download files as needed from The Client directory for the purposes of creating a website. The Client authorizes use of Client’s logo and all brand identification in the creation of the website. The Client also authorizes The Company to submit Client’s site to search engines and to any other directories requested by The Client for marketing purposes. If necessary, The Client authorizes The Company to purchase a domain, stock photography, and any other services or materials required for the express purpose of the creation of The Client’s website.
21.1. Fees for website service are R500.00 per hour. Before The Company will begin work on the website, Client must sign and return this contract with the initial payment of half of the total estimate quoted above. A final bill will be sent to The Client upon completion of the project.
21.2. The Company will not proceed with any work that would exceed the original estimated total until receiving written approval from Client for the new estimated total.
22.1. The Company will submit final website to Client for approval in writing. If necessary, The Company will submit final website to search engines when both Client and The Company agree that website is ready for submission to search engines and directories.
22.2. Time required to make changes to website after The Company has already received final Client approval of the website will be added to the final bill. If Client has already received the final bill, time required to make changes to website after Client approval will be submitted to Client as a separate bill.
23. Payment Terms.
23.1. Until payment is received in full, The Company owns the website design and any files created for the website. Once The Company has received payment in full, the website ownership is transferred to The Client. The Company will bill client monthly for work performed on an hourly basis. Any deposits paid by Client will be credited against The Company’s fee for each monthly billing cycle. After all credits have been applied for Client’s deposit(s), payment for work done through the time of invoicing is due upon receipt of invoice.
24.1. The Company agrees to have The Client’s website completed no later than the deadline described above. This deadline can be reached only if The Client has provided all necessary materials, graphics, text content, and logins and approvals by the dates specified above. The Company shall not be held responsible for delays to site development arising out of Client’s delays in these to The Company.
24.2. If website is not completed by the deadline due to lack of Client assistance, The Company may
24.2.1. Extend the project deadline or
24.2.2. Close the project and bill Client for work completed at R500.00 per hour, or
24.2.3. The Company will create a website using all content that has been provided, and send a final bill for work completed to meet the project deadline.
25.1. The Client represents that all website content including logos, trademarks, photos, illustrations, audio, video, and written content provided to The Company are owned by The Client, or The Client has received explicit permission for use, and do not violate copyright law.
25.2. Client has also received permission from all individuals photographed to be shown on the web. Each person in photos going online understands that their face will be seen on the Internet. Any names and contact information placed on the website also have been provided with consent from each individual.
25.3. Client agrees to indemnify and hold The Company harmless against all claims, including but not limited to claims of copyright or trademark infringement, violations of the rights of privacy or publicity or defamation, arising out of use of the work.
26. Ownership of Copyright.
26.1. The Company acknowledges and agrees that The Client retains all rights to copyright in the subject material.
27. Ownership and Return of Artwork.
27.1. All content created by The Company and/or her subcontractors for The Client are the property of The Client. Client hereby grants to The Company the right to use the work for demonstration of past work performed via portfolio or advertising.
28. Cancellation of Work.
28.1. In the event of cancellation of this assignment, ownership of all copyrights and any original artwork shall be retained by the designer.
28.2. By Client: Client may cancel work on the website at any time by submitting notice to The Company via certified mail. The Company will halt work upon receipt of certified letter from Client requesting cancellation. At that time, Client will be responsible for paying for all work completed prior to The Company’s receipt of cancellation request. Work completed shall be billed at an hourly rate of R500.00 per hour. If, at the time of request for refund, work has been completed beyond the amount of work paid for by the initial payment, The Client shall pay for work completed.
28.3. By The Company: The Company reserves the right to refuse service and cancel a website project if necessary, in which case, the balance of the initial payment will be returned to Client after all applicable fees have been deducted for work completed. The Company may cancel project for any reason it deems necessary, including but not limited to Client not providing necessary information, text and graphics in a timely fashion to The Company.
29. Internet Access.
29.1. Access to the internet will be provided by a separate Internet Service Provider (ISP) to be contracted by The Client and who will not be a party to this agreement.
30. Other Electronic Commerce Business Relationships.
30.1. The Client understands that the web host, credit card processing services and any other businesses not owned by The Company are not parties to this contract and are separate business entities from The Company. The Client understands that The Company has no control over functionality or availability of website due to the actions or inaction of the web host server, credit card processing, online banking and any other business services The Client uses to transact business over the Internet outside of The Company. The Company makes no representations, warranties or guarantees for any recommendations of other Internet business partners.
31. Progress Reports.
31.1. The Company shall contact or meet with The Client on a mutually acceptable schedule to report all tasks completed, problems, encountered, and recommended changes relating to the development and testing of the web site. The Company shall inform The Client promptly by telephone or email upon discovery of any event or problem that may significantly delay the development of the work.
32. The Company’s Guarantee for Program Use.
32.1. The Company guarantees to notify The Client of any licensing and/or permissions required for art-generating/driving programs to be used.
33.1. The Client shall be responsible for making additional payments for changes in original assignment requested by The Client. However, no additional payment shall be made for changes required to conform to the original assignment description.
34. Testing and Acceptance Procedures.
34.1. The Company will make every good-faith effort to test all elements of the web site thoroughly and make all necessary corrections as a result of such testing prior to handing over the deliverables to The Client. Upon receipt of the web site, The Client shall either accept the web site and make the final payment set forth herein or provide The Company with written notice of any corrections to be made and a suggested date for completion, which should be mutually acceptable to both The Company and The Client.
35. No Guarantees.
35.1. The Company makes no representations or guarantee as to the amount of traffic to The Client’s site or interest generated in The Client’s site. The Company makes no representations and does not guarantee an increase in Client sales, nor does The Company promise top listing in any search engine or directory. The Company will use its best efforts to perform under the contract, and makes no representation or guarantee that the site will be accessible by all browser and operating systems.
36. Electronic Commerce Law.
36.1. The Client agrees that The Client is solely responsible for compliance with laws regarding any electronic commerce conducted through their website and will hold harmless The Company and its subcontractors from any claim, causes of action, penalty, tax, and/or tariff arising from The Client’s use of electronic commerce.
37.1. The Company understands that she will be working with confidential Client information and will only release this information to parties directly involved in website creation. Client authorizes designer to release information to third parties requiring access for site creation. This includes, but is not limited to, website and email address userids and passwords, trade information, and banking information should The Client request online shopping. Upon website completion, Client will change any banking passwords The Company has had access to. If Client chooses not to retain The Company for website maintenance, Client will change ftp, email, and any other passwords The Company has had access to. Client will hold The Company harmless should breach of security occur if Client has not changed business passwords.
38.1. The Company will make reasonable attempts to protect the integrity of The Client website. This includes patching any third party software, such as Content Management Systems, used on The Client’s site. However, as this software is not created by The Company , the designer can not be held responsible for security flaws by the software creators. As no software or server is 100% safe from security breach, The Client understands that the designer can not be held accountable for all security breaches should they occur. Further, The Company is not held accountable for patching any software that has been installed to the site without The Company’s knowledge.
38.2. The Company will make updates and changes to the site, and provide information regarding the website to The Client and up two of Client’s designees (herein referred to as the “points of contact”). Should any other employee or member of The Client’s organization contact The Company regarding the website, the designer will contact one or all of the three designated points of contact with the issue. Client shall notify The Company of Client’s designees in writing, and shall identify them by name, email address and phone number. Any email requesting changes to the site or information from the site that is not from a point of contact email on file will be referred to a current point of contact. Points of contact may be changed at any time during the maintenance of the site, provided notice is made to the designer in writing from a designated contact email.
38.3. The Client will also provide an emergency contact and phone number should there be an emergency requiring input from The Client.
39. Accessibility, Usability, Cross-Platform Issues.
39.1. The designer will do their best to make sites as accessible, useable, and cross-platform as possible. Client understands that some site features will cause a website to not meet these standards 100%. The Client understands that no website will look and function identically all browsers and operating systems and that any attempt to do so is futile.
39.2. Client will be informed if features requested by The Client will negatively impact website accessibility, usability, and cross-platform use. Client agrees to indemnify and hold The Company harmless against all claims with regard to these matters.
40. Continuing Website Maintenance and Promotion.
40.1. No agreement for continuing website maintenance and promotion is entered into unless specifically quoted for and specified in the document. No website maintenance or promotion will be performed by designer unless all parties reach an agreement to do so and all parties sign a website maintenance or website promotion agreement.
41. Unauthorized Use and Program License.
41.1. The Client will indemnify The Company against all claims and expenses arising from uses for which The Client does not have rights to or authority to use. The Client will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.
Website management, promotion and online channel management terms and conditions
42.1. You hereby appoint The Company as your attorney in fact and agent for the purposes of accessing certain accounts that you have (each an “Account”) with social media portals (each a “Channel”) and performing the Services, in part, through our use of your Accounts on your behalf in that capacity.
43. Channel Status.
43.1. You shall maintain your Account with each Channel on which you instruct The Company to perform the Services and you shall ensure that neither you nor any of your agents or representatives commit any act or omission that could jeopardize the validity of your Account or otherwise act out of compliance with the terms and conditions of the Channel. You are solely responsible for each Account and for the legal terms and conditions applicable thereto. Notwithstanding our accessing the Accounts to provide the Services, we assume no responsibility for the activity in the Account, except and to the extent that we use it to commit fraud, as determined by a court of competent jurisdiction. You acknowledge and agree that our performing the Service for you may create liabilities on your part to the Channels and that you shall assume all such liabilities in addition to your liability for Fees hereunder. For example, but without limitation, if you instruct The Company to purchase advertising within a Channel, the Channel or we will collect payment from you for that advertising.
44.1. The Services shall consist of promoting your products or services (“Client Offering”) through the Account on the Channel. Depending on your selections made in this Agreement or on our Site the Services may include some or the entire following o such other Services as we may offer to you:
44.1.1. establishing a new Account in your name on a given Channel;
44.1.2. publishing messages through your Account with Channels; or
44.1.3. activating advertising campaigns within the Channel through your Account. We will propose certain specific messages that we propose posting on the Channels (the “Client Content”). Channels have varying abilities to tailor Client Content to its original format, so you agree that we will not always honour the precise format or complete wording of approved Client Content. You may not procure the Services for or on behalf of a third party.
45.1. You are liable to pay for our fees (the “Fees” for the Services, such as they have been posted on the Site or in a fee schedule attached to this Agreement. Fees are payable in advance of delivery of the Services. Fees are non‐refundable.
46. Client Content.
46.1. You are required to accept or reject all proposed Client Content through our Site or through email within twenty four (24) hours of our sending it to you. Failure to approve Client Content within such delay will not relieve you of your obligation to pay Fees or any of your other obligations under this Agreement. Once we have received your approval on Client Content, we will publish it on the selected Channels. Your approval of The Client Content, by any means, constitutes your representation, warranty and covenant that, at all relevant times, during and following the term of this Agreement:
46.1.1. you have all right title and interest in The Client Content and Client Offerings, including without limitation all intellectual property rights therein, and you also have the right to use it in the form in which it will be used through the Services on the Channels;
46.1.2. none of The Client Content or any of The Client Offerings are illegal in the relevant country or in any jurisdiction in which you have or propose to have customers;
46.1.3. The Client Content is true and not misleading;
46.1.4. you have all necessary licenses to sell The Client Offerings;
46.1.5. none of The Client Offerings or Client Content is or contains any links to any illegal or offensive sites or services;
46.1.6. none of The Client Offerings or Client Content are in any way associated with narcotics, illegal substances, controlled substances, child pornography, gaming, gambling, betting, e-wallets, aggregators or other illegal or disreputable (as determined by us) offerings or parties.
47.1. You shall defend, indemnify and hold harmless The Company, its directors, officers, employees, agents, assigns, and successors in interest from and against any and all third‐party liability, damages, losses, claims, demands, actions, causes of action and costs(including attorneys’ fees and expenses) arising out of or resulting from
47.1.1. your performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by you;
47.1.2. the negligent or wilful acts or omissions of you or your agents and/or employees;
47.1.3. any statements, claims, representations or warranties made by you or your agents and/or employees, relating to The Client Offering or Client Content or any other matter; and
47.1.4. any claim by a Channel against The Company on account of our performance hereunder. This provision shall survive termination of this Agreement and applies to claims in relation to the Services or causes of action arising thereafter.