Terms & Conditions
1) DEFINITION AND INTERPRETATION
In this Agreement, unless the context indicates to the contrary
1.1. “AGREEMENT” means the Service Level Agreement as set-out herein.
1.2. ”CARVER MEDIA” means, Carver IT cc.
1.3. “CUSTOMER” means, the customer named on this Service Level Agreement.
1.4. “CONTRACT PERIOD” means the minimum duration of this Agreement, being a period of 12 (Twelve) months from date of the last signature to this Service Agreement.
1 .5. “WEBSITE CONTENT” means an interconnected series of web pages, banners incorporating software programming, graphic and textual elements, designed to be hosted by a server on the World Wide Web or otherwise presented.
1.6. “SUBSCRIPTION FEE” means an amount payable by the customer and as appearing on the service level agreement, on a monthly or annual basis, for the provision of the website and other services.
1.7. “LABOUR RATE” means the current labour rate per hour charged by Carver Media for any design work and/or provision of any software and/or any services for the customer as described in this agreement.
1.8. “SUPPORT FEE” means an amount payable by the customer and as appearing on the service level agreement, on a monthly or annual basis, for the provision of additional support of the website and other services.
The headings to each clause are used for convenience only and must not be used as an aid to the interpretation of this agreement
2) PROVISION OF A SERVICE
2.1. Subject to the terms and conditions of this agreement, Carver Media shall provide website design, website maintenance and hosting service for the customer.
3) SCOPE OF WORK
3.1. Website Development
3.1.1. Design and Development of a mobile friendly website.
3.1.2. Install a website content management system to incorporate the website content.
3.1.3. Incorporate into the website, copyright free images supplied by the customer and supply 5 (five) stock images.
3.1.4. Provision email accounts on our servers based on the package selected by the customer. Support on email accounts shall be based on the subscription and support package selected by the customer. Set up of email accounts on devices will be the customers responsibility. Carver Media shall however provide all documentation thereof.
3.1.5. The website requires certain proprietary software owned by Carver Media and such ownership cannot be passed to the customer. The website may not function in another hosting environment.
3.1.6. Carver Media shall be expected to perform its duties during normal working hours and exclude public holidays and weekends.
3.1.7. Carver Media shall provide a ticket-based system for the customer so any requests for service by the customer can be efficiently tracked and managed.
3.2. Online Store or Catalogue (Where applicable)
3.2.1. Provide 3 (Three) hours training to the customer on how to manage products and process orders.
3.2.2. Install an approved Carver Media shopping cart to the website.
3.2.3. Integrate with an approved Carver Media payment gateway. (It is the customer’s responsibility to register with a payment gateway and provide Carver Media with their merchant ID credentials) 3.2.4. Integrate with approved Carver Media delivery service. (It is the customer’s responsibility to register with a courier company approved by Carver Media, and provide their unique ID credentials, this excludes any customized or special integration with the delivery service).
3.2.5. Carver Media to add the first 20 (twenty) products. It is the customer’s responsibility to add on remaining products. Additional products requiring addition to the shopping cart shall be charged at the prevailing labour rate.
3.3. Support Packages (Where Applicable)
3.3.1. Support Package One
Support Package One includes 30 minutes of Design Updates and Support per month. Design updates have a 48-hour resolution time. Email support, email password reset or email account creation has an 8-hour resolution time. Website Security threats have an 8-hour resolution time.
3.3.2. Support Package Two
Support Package Two includes 1 hour of Design Updates and Support per month. Design updates have a 36-hour resolution time. Email support, email password reset or email account creation has a 6-hour resolution time. Website Security threats have an 8-hour resolution time.
3.3.3. Support Package Three
Support Package Three includes 2 hours of Design Updates and Support per month. Design updates have a 24-hour resolution time. Email support, email password reset or email account creation has a 5-hour resolution time. Website Security threats have an 8-hour resolution time.
3.3.4. Support Package Four
Support Package Four includes 7 hours of Design Updates and Support per month. Design updates have a 12-hour resolution time. Email support, email password reset or email account creation has a 2-hour resolution time. Website Security threats have an 8-hour resolution time.
The customer will be charged the current labour rate per hour should the customer updates or support go over the service level agreement.
4.1. The customer shall pay to Carver Media for services as selected now or anytime in the future in terms of the agreement monthly and strictly by debit order. Failure to pay by debit order shall attract an additional ten percent to the monthly fees.
4.2. The customer is financially responsible for all/any extensions or extras purchased for their online store or online catalogue.
4.3. The customer shall not be entitled to withdraw or revoke the authority of Carver Media to draw against its banking account, during the currency of the service agreement.
4.4. Over-due amounts due shall accrue interest at a rate equal to the maximum rate allowed in terms of the Usury Act, 1968, calculated from the due date to date of actual payment.
4.5. In the event of a termination of this agreement prior to the expiry of the contract period, Carver Media shall have the right to claim immediate payment of all and any outstanding charges fees owing to Carver Media and the customer shall be obliged to effect payment for the amount so claimed and the payment of such charges shall be accelerated in respect of the un-expired portion of the contract period and shall become immediately due and payable.
4.6. The customer is fully aware that any delays in the design or hosting of the online store or online website shall in no way affect the customer’s responsibility to pay the monthly Hosting Fee.
4.7. The subscription fee is subject to an annual increase as prescribed by Carver Media.
5.1. Carver Media shall not attract any liability (including liability for negligence) for any loss or damage to the customer whatsoever no matter when or how, arising out of provision of the services or otherwise, whether direct or indirect, consequential or contingent and whether foreseeable or not and in particular not be liable for financial loss or loss of profits contract, business anticipated, or goodwill.
5.2. The customer indemnifies Carver Media against any damage, cost or liability (including liability for Carver Media’s negligence) arising from the provisions of service to the customer, its employees, directors and/or agents, together with all legal costs relating to any claim arising there from.
5.3. The customer acknowledges Carver Media’s right to inform third parties of any breach by the customer of its obligations in terms of this Agreement and the customer indemnifies Carver Media in respect of any claim whatsoever arising from Carver Media exercising such right.
5.4. The customer acknowledges Carver Media right to pass on any information given to them under this Agreement to any authority, or to any person / organization for purposes of obtaining any credit references or to any debt collectors, public telecommunications agencies or to any organization for marketing purposes.
6.1. Carver Media shall be entitled, at any time to cede, assign, transfer, encumber or delegate any of its rights, title, interest or obligations in terms of this Agreement to any third party.
7.1. This agreement shall commence on the date of the last signature thereon and shall continue for the contract period and thereafter indefinitely until terminated by Carver Media giving notice to the customer in terms of clause 8 or by the customer giving Carver Media not less than 30 (thirty) days written notice of termination, provided that the customer shall not be entitled to give such notice within the contract period.
8) TERMINATION I BREACH
8.1. In the event that the customer breaches any term of this agreement or any warranty given by it hereunder or fails to fulfil any obligation hereunder, then without prejudice to Carver Media’s other rights in terms of this agreement or the common law, Carver Media may forthwith and after 14 (fourteen) days written notice to the customer, either terminate this agreement or call for specific performance of all the customers obligations and immediate payment of all sums owing by the customer, whether or not such sums are then due, in either event without prejudice to Carver Media right to recover such damages as it may have suffered by reason of such breach or failure. Notwithstanding the afore going and pending Carver Media’s election in terms of this clause, Carver Media shall not be obliged to perform any of its obligations under this agreement and the customer shall remain liable for the payments of all amounts owing by the customer in terms of this agreement whether or not such amounts are then due.
8.2. Carver Media may without notice, terminate this agreement immediately in any of the following circumstances:
8.2.1. lf the customer fails to pay any amount owing to Carver Media on due date,
8.2.2. lf the customer makes or offers any arrangements or composition with its Creditors or commits any act of insolvency in terms of the Insolvency Act of 1936, or if any application sequestration, liquidation, winding-up or judicial management is presented by or made against the customer is passed or if a receiver, trustee or curator is appointed over the whole or any part of the customers or assets or if any of the events as set out in this clause are imminent,
8.2.3. lf any license to operate or use the system is revoked, terminated or modified for any reason either in whole or in part
8.2.4. lf for any reason Carver Media ceases to make the service unavailable.
8.3. Upon termination of the agreement Carver Media shall disconnect the hosting of the customers on line store or on-line catalogue from its servers.
8.4. Carver Media may refuse to re-register its service and shall be entitled to retain the domain name of the customer and is in its sole discretion entitled not to permit the use of same by the customer at any time in the future.
8.5. Should Carver Media wish to reconnect the services a reconnection fee will be payable as prescribed by Carver Media.
8.6. Should the customer wish to transfer the website to another service provider or hosting provider, the customer shall be liable to a R R4000.00 (Four thousand rand) transfer fee. Such fee is to prepare and provide the necessary files for the transfer process. Your attention is drawn to clause 3.1.5.
9) VARIATION OF TERMS
Carver Media receives the right to vary the terms and conditions of this agreement at its sole discretion, whether as a result of new legislation, statutory instruments, Government regulations or licenses, and may in its sole discretion, elect to notify the customer of any such variation in writing.
10) WHOLE AGREEMENT
This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties regarding the subject matter hereof other than those set out herein are binding on the parties save and except for the provisions of clause 9 above.
No latitude, extension of time or other indulgence which may be given or allowed by either party to the other party in respect of the performance of any obligations, hereunder and no delay or forbearance in the enforcement of any right of either party arising from this agreement, and no single or partial exercise of any right by either party under this agreement, shall in any circumstances be constituted to be an implied consent or election by such party or operate as a waiver or a novation or otherwise affect any of the party’s rights in terms of or arising from this agreement or stop or preclude any such party from enforcing at any time and without notice, strict and punctual with each and every provision and term of this agreement.
12) NOTICES AND DOMICILIA
12.1. The customer chooses as its domicilium citandi et executandi, the address set out in this agreement or such other address of which the customer may notify Carver Media in writing not being a post office box or poste resante.
12.2. AII notices given in this agreement shall be in writing
12.3. Any Notice sent to the customer at its domicilium citandi et executandi, shall be deemed to have been received on the day of delivery.
A computerized account or a certificate signed by a manager, Accountant or Credit Manager of Carver Media stating any amount due by the customer to Carver Media shall be prima facia evidence of the particulars contained therein, and particularly of the correctness of the amount due without proof of signatories appointment or capacity being required.
The customer shall repay to Carver Media on demand all costs Carver Media actually incurs as a result of the customers failure to comply with the terms and conditions of this agreement or the cancellation hereof, which include:
14.1. Cost in connection with the tracing of the customer
14.2. All legal cost on the Attorney and Own Client Scale
14.3. Collection commission that may legally be recovered from the customer by Carver Media’s Attorneys or collection agents on amounts collected.
15) SET OFF
The customer shall not be entitled to set off any amount/s that may be owing to him by Carver Media against any amount he owes or may owe Carver Media in terms of this agreement.
16) CONSENT TO JURISDICTION
The customer hereby consents to the jurisdiction of the Magistrates court having jurisdiction over its person in respect of any action by Carver Media arising from this agreement or the cancellation thereof. This consent does not oust the jurisdiction of any other competent court and Carver Media shall be entitled, in its discretion, to institute action against the customer in any court of competent jurisdiction. The parties agree that this consent is severable and shall apply even in the cancellation of this agreement.
17) EXCUSABLE EVENTS
Carver Media shall not be liable to the customer for any breach of these terms and conditions or failure to perform any obligations hereunder as a result of a technical problem relating to its server alternatively the World Wide Web, termination of any license to operate or use the server, any act of God, Government control, restriction or prohibitions or any other Government Act, Act of default of any supplier, Agent, Authorized dealer or sub-contractor, or any other cause beyond Carver Media’s control.
18) SUSPENSION / DISCONNECTION
18.1. Carver Media may, from time to time and without notice, suspend the services and disconnect same in any of the following circumstances: –
18.1.1. During any technical failure, modification or maintenance of its system
18.1.2. If the customer is in breach of any of the terms and conditions of this agreement, including but not limited to the customers failure to pay any service fees or charges, until the breach is remedied. 18.2. Notwithstanding any suspension of the services under this clause, the customer shall remain liable for all charges hereunder during the period of suspension unless indemnified by Carver Media in writing.
19) CUSTOMERS RESPONSIBILITY
19.1. The customer is solely responsible for providing Carver Media with all necessary artwork, copy and for the design of the online store or online catalogue.
19.2. Delays in the provision of such content by the customer shall in no way effect the payment of the monthly subscription fee.
19.3. The customer shall be responsible for ensuring that all information on the website is correct and up to date.
19.4. Any content supplied by the Customer must be correct and is subject to a service fee. The customer fully understands that any work done by Carver Media shall be billed in terms of the service fee. 19.5. The customer must provide the copy for the website. Carver Media can provide a copywriting service at an additional fee based on the current labour rate.