Introduction
The following Standard Terms and Conditions will regulate the relationship between Kingcom Holdings (Pty) Ltd. and the Customer in respect of the work effected or the services provided in terms of the agreement between the parties. By placing any order with and/or accepting any quotation issued by Kingcom Holdings (Pty) Ltd., the Customer confirms that he/she/it is in agreement with and bound by these standard terms and conditions.
1. Definition
a) Agreement - means the entire content of this Standard Terms and Conditions document, any proposal document(s), schedule(s), together with any other Supplements as designated herein and together with any exhibits, addendums, schedules or attachments (if applicable).
b) Content - means all materials, information, photography, writings and other creative content.
c) Copyright - means the property rights in original work of authorship, expressed in a tangible medium of expression, as defined and enforceable under the laws of the Republic of South Africa and International Copyright Law.
d) Customer- shall mean the individual or entity who procures the services and work and enters into this Agreement with Kingcom.
e) Deliverables - means the services and work product specified in the Proposal to be delivered by Kingcom to the Customer, in the form and media specified.
f) Kingcom - means Kingcom Holdings (Pty) Ltd. a company duly registered in terms of the laws of the Republic of South Africa, with registration number and with main place of business situated at which is contracted by the Customer to conclude the Services and work in terms of this Agreement.
g) Services - means all services and the work product to be provided to the Customer by Kingcom as described and otherwise further defined.
h) Trademarks – means trade names words symbols, designs, logos or other devices or designs used in the Deliverables.
i) Ongoing Management – means the ongoing work to keep the website functioning and secure. This includes, but is not limited to; data management, maintenance upgrades and software patches.
2. Appointment
2.1 The Customer appoints Kingcom to carry out the Services and work and agrees that the terms and conditions as set out herein shall be the Agreement between the Parties in respect of the Services and work.
2.2 Kingcom offers Services to the Customer, which may include (depending on the selection of the Customer), but is not limited to: web design, hosting, domain registration/renewal, maintenance, online advertising, search engine optimization, social media marketing and graphic design. The Customer is invited to contact Kingcom directly if there is any doubt about the extent of the Services and work offered.
3. Authorisation
3.1 The Customer authorizes Kingcom to perform the Services outlined in this Agreement on the Customer’s behalf, which may include, but is not limited to, registering their domain, accessing their hosting account and disk space, creating designs for marketing or website purposes, creating databases and applications, managing their online advertising, and submitting any of the Customer’s project to search engines – as may be needed from time to time for Kingcom to fulfill its obligations in terms of this Agreement.
4. Agreement Scope
4.1 Services supplied, costs and rates are limited to what is specifically set forth in the service offers packages provided by Kingcom and as chosen by the Customer. Any additional Services required by the Customer, not provided for in Kingcom’s standard service offers, will require a separate agreement or quotation to be provided to the Customer.
4.2 Should the Customer not elect to utilize all Services offered within any of the service offers packages provided by Kingcom, the Customer will still be liable for the full payment for the complete package selected.
- Costs and Fees.
5.1 The costs and fees associated with the provision of the Services are as indicated by the service offer packages provided by Kingcom at the time of the parties entering into the Agreement.
5.2 Changes and additions outside of the scope of this document will be quoted and invoice to the Customer separately. The Customer will be advised of all cost changes and additions before commencement of the additional work.
5.3 Fees for any professional services will not include any outside purchases, such as, but not limited to: software licensing, copyright licensing, photography, color printouts, illustrations or courier services. Should such additional expenses be required in executing the Service and work, the Customer will be advised of same and any such additional expenses will be itemised and quoted for in provided invoices.
- Production Schedules
6.1 Production Schedules will be established in advance and adhered to by both the Customer and Kingcom.
6.2 Where Production Schedules are not adhered to by the Customer, the Customer acknowledges that it will impact the final delivery date or dates for the Services or work in terms of this Agreement and will be adjusted accordingly.
6.3 Kingcom reserves the right to charge the Customer for delays, but only in the event if the delays by the Customer result in an increase in time to manger or deliver the Services or result in an increase in expenditure.
6.4 Kingcom undertakes to complete the work and Services required within a reasonable period from the agreed to commencement date and in terms of the Production Schedules. It is specifically recorded that the Customer shall have no right of any penalties if the Services or Work is not completed within a specified period of time – especially given the nature of the Services offered and in the event that delays are not attributable to Kingcom.
- Payment
7.1 All Services are prepaid. larger projects are split into phases or smaller services for which payment is due at the beginning of each service/phase.
7.2 The Customer shall pay to Kingcom the amount stipulated in the invoice on the dates specified for payment, together with all additional costs in respect of additional work, or additional services rendered pursuant to the completion of the Services / work and as requested by the Customer.
7.3 It is expressly agreed that Kingcom will not be required to start the Services / Works or to secure any materials for the completion of the works until the invoiced amount as aforesaid has been paid in full.
7.4 By accepting Kingcom’s quotation/invoice the Customer accepts Kingcom’s Terms and Conditions. Alternatively, by making payment of the invoiced amount the Customer will signify that he/she/it has read and accepted Kingcom’s Terms and Conditions, agreeing to be bound by all such terms and conditions.
7.5 Kingcom shall not be held to any Customer payment terms, unless otherwise agreed by Kingcom and the Customer in writing, with the requirement that both parties will be required to sign such written document for it to be lawful and valid.
7.6 Any risks associated with payment by electronic funds transfer, direct bank deposit or internet banking in general rests with the Customer.
7.7 The Customer shall under no circumstances be entitled to withhold payment, for any other reason whatsoever. Withholding of payment shall be deemed to be a material breach of the agreement, which will entitle Kingcom to exercise any of the legal remedies contained herein and/or any such legal remedies available to it in law.
7.8 The Customer is not entitled to set off any amount due to Kingcom by the Customer against its indebtedness to Kingcom.
7.9 Kingcom shall be entitled to invoice each delivery or performance of Services / work separately as may be required.
7.10 The Customer shall pay to Kingcom the full amount as stipulated in a provided invoice within a maximum period of seven (7) days after receipt of the invoice.
7.11 In the event of late payment, it is agreed that Kingcom shall be entitled to recover from the Customer, interest from the due date of payment until the date of final payment at a rate equal to the maximum rate provided for within the National Credit Act, No. 34 of 2005 (as amended), or the applicable mora interest rate for the relevant period, on any outstanding amounts not paid as agreed or part thereof until such amount is paid in full.
7.12 The Customer further agrees that should any amount not be paid by the due date, the full amount owning by the Customer to Kingcom shall immediately become payable and Kingcom shall be entitled to demand immediate payment, notwithstanding that any amount may, as at the date of default, not yet be due and payable.
7.13 Should the Customer fail to make payment in terms hereof, he/she agrees to be liable for any tracing fees, valuation costs, debt collection fees, costs and commission and/or payment of legal fees and disbursements as per the applicable attorney and own client tariff, as incurred by Kingcom to attend to any dispute between the parties, to enforce any of its rights in terms of this Agreement or to secure payment of any amount owed to Kingcom by the Customer. It is further agreed that payment of such amounts shall be payable by the Customer on demand.
7.14 In the event of the Customer failing to make payment as agreed, it is agreed that Kingcom may report such non-payment to any credit bureau database, with any such further information that would customarily be collected and recorded by such credit bureau.
7.15 In the event of default, the Customer agrees that any subsequent payment will first be appropriated to reduce the interest and legal costs due to Kingcom and thereafter in respect of the capital amount payable in terms of this agreement.
7.16 Only payment made into the official Kingcom bank account as designated and reflecting on the original quotation / invoice submitted by Kingcom via e-mail will be recognized and accepted as formal payment.
7.17 Due to the risks associated with cybercrime, the duty to verify the correctness of the banking details of Kingcom rests with the Customer prior to making payment. Any payment made into any account other than Kingcom’s official bank account will not discharge the Customer’s liability for payment of the amount due to Kingcom.
- Confidentiality
8.1 Kingcom will not disclose to any third party or use, other than for the purposes of this Agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this Agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the Customer.
8.2 This obligation will not apply in relation to information that Kingcom is required to disclose by any law, authority or court order, or which becomes part of the public domain other than as the result of a breach by Kingcom of its obligations of confidence under this Agreement.
- Subcontracting
9.1 If needed, Kingcom reserves the right to outsource any specific project requirement to ensure that the terms of this Agreement are met.
9.2 Any such subcontractors or external suppliers will be required to be bound to the terms of this Agreement.
- Promotional Consent
10.1 The Customer hereby permit and allow Kingcom to display any images and/or provide as example any material or work covered by this Agreement and to generally promote its business by means of advertising, publicity material, websites, exhibitions, competitions, social media postings, and other such media, providing that the images are used lawfully and without damage to the Customer.
10.2 In addition Kingcom reserves the right to use the Customer’s website, associated graphics and any unused ideas and development in the promotion of Kingcom’s services or any design competitions.
10.3 The Customer agrees to allow Kingcom to retain a credit and link from the footer of the website designed and attended to in terms of this Agreement.
10.4 It is further agreed that should Kingcom elect to use such website, associated graphics, images and ideas or development for business and marketing purposes, the Customer will not be entitled to any reduction in fees charged and the full amount due to Kingcom in terms of this Agreement will still be due and payable.
- Copyright
11.1 The Customer is responsible for all trademark, service mark, copyright and patent infringement clearances.
11.2 The Customer is also responsible for arranging, prior to publication, any necessary legal clearance of materials Kingcom uses for any projects in terms of this Agreement.
11.3 The Customer indemnifies Kingcom against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the Customer.
- Ownership
12.1 Kingcom reserves all rights over working source files, databases and owns full ownership of the website and design.
12.3 The Customer will not have access to the website control panel, database or FTP, unless otherwise agreed to.
- Use of Open Source Software
13.1 Kingcom makes extensive use of open source software and components to supply websites and services to the Customer. Kingcom will not charge additional licensing fees on open source software.
13.2 The Customer indemnifies Kingcom against any loss or damage arising directly or indirectly from any failure of software supplied to the Customer.
13.3 All software and components not developed by Kingcom retain the original license and terms associated with them. Kingcom cannot assign any rights to the Customer and the Customer agrees to be bound by the original author thereof’s terms.
- Force Majeure
14.1 Kingcom shall not be deemed in breach of this Agreement if Kingcom is unable to complete the Services or any portion thereof by reason of war, riot, fire, earthquake, flood, civil unrest, labour unrest or disputes, acts of God, death, illness or incapacity, acts, or any law governmental order or regulation or any other cause beyond the reasonable control of Kingcom – collectively or individually being defined as a Force Majeure Event.
14.2 Upon occurrence of any Force Majeure Event, Kingcom shall give notice to the Customer of its inability to perform or of any delay in completing the Services and shall propose revisions to any schedules for completion of the Services.
14.3 Should such circumstance affecting Kingcom last continuously for a period of 30 (thirty) days, the Customer will be entitled to terminate the Agreement forthwith on written notice, without any liability to the Customer.
- Limitation of Liability
15.1 The Services and work product of Kingcom are sold “as is”,
15.2 In all circumstances, the maximum liability of its designers, directors, officers, employees, design agents and affiliates, to the Customer for damages arising from any and all causes whatsoever, regardless of the form of action, whether contractual, delictual or otherwise, shall be limited to the net cost of the project as specified in this Agreement.
15.3 Under no circumstances shall Kingcom be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special or consequential damages arising out of or relating to the materials, work product or the Services provided by Kingcom even if Kingcom has been advised of the possibility of such damages and notwithstanding the failure of any limited remedy in terms hereof.
- Termination / Cancellation
16.1 Kingcom may terminate this Agreement with immediate effect upon any material breach by the Customer by giving written notice of such termination ot the Customer.
16.2 The Customer may terminate this Agreement by providing thirty (30) days’ written notice to Kingcom.
16.3 The Customer will be liable for any final payments during the thirty (30) days’ notice period and all outstanding balances.
- Domain Names
17.1 All domain names are legally owner by the Customer.
17.2 All domain name registrations are subject to availability and registration rules.
17.3 Kingcom will manage the domain name(s) on behalf of the Customer, unless the Customer requests in writing that the Customer manages their own domain(s) and payment of associated fees.
17.4 The Customer indemnifies Kingcom against any loss or damage arising directly or indirectly from any failure of Services related to domain renewals, registrations and domain name trademarks.
- Hosting
18.1 Kingcom provides standard hosting packages as may be required for the Customer’s needs. The Customer is invited to contact Kingcom directly for any advice as to which package may serve the needs of the Customer best.
18.2 The exact packaged required or chosen will determine the monthly cost or amount payable by the Customer.
18.3 Due to website growth, disk-space and increases in traffic, the Customer may be in need and will be responsible for any over-usage, charged per Gigabyte for traffic and per 10mb for any additional disk space.
18.4 Should the Customer decide to make use of their own hosting provider, the Customer will be responsible for contacting the chosen host for support relating to hosting matters and ensure that Kingcom will have the correct hosting environment for the project.
18.5 If required, Kingcom will charge for costs incurred liaising with the alternative hosting company and supporting the Customer with hosting related issues.
18.6 Kingcom will also charge for any costs incurred due to differences in hosting environment if installation and management exceeds standard time frames, which would have applied if hosted by Kingcom.
- Browser Variance - Related to web
19.1 Our websites are optimised and designed to support the latest versions of commonly used browsers, such as Google Chrome. Microsoft Edge or Mozilla Firefox.
19.2 Our websites are tested using the browsers that are statistically the most commonly used, however layout and aesthetic elements may change or degrade in some browsers.
- Colours
20.1 Website visitors use different monitors with different settings. Colours and image quality of the website, including graphics and photography, will vary between different computers and monitors.
- Testing and Acceptance of the Website
21.1 Once the project pertaining to the website has, in the opinion of Kingcom, been completed – then Kingcom will notify the Customer either verbally or in writing, and provide the Customer with an opportunity to test and review the website.
21.2 If the Customer determines that the website does not comply with the project parameters, agreed to in this document or as provided in any invoice or as agreed in writing, Kingcom agrees to carry out any necessary and reasonable modifications.
- Website edits by Customer
22.1 If the Customer or an agent / employee of the Customer other than Kingcom attempts to update, edit or alter the site’s template, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture – then, time to repair web pages will be assessed at our standard and/or overtime hourly rate, and is an additional cost above the costs outlined in the agreement, should the Customer require Kingcom to repair or otherwise reinstate the website and/or its pages.
- Errors and Omissions
23.1 We try to ensure an error free environment however, it is not Kingcom's responsibility to check for accuracy in all respects, ranging from spelling, pricing and technical illustrations.
23.2 Kingcom is not liable for errors or omissions. The Customer indemnifies Kingcom against any loss or damage arising directly or indirectly from any errors and omissions.
- Updates / Changes
24.1 Kingcom offers monthly maintenance as set out in the service offer packages selected and paid for by the Customer.
24.2 Kingcom will ensure that any maintenance work is attended to within 48 working hours from date of receiving the instructions from the Customer.
- Copy
25.1 All text to be featured on the website must be supplied in digital format that can be copied and pasted.
25.2 Kingcom will not re-type/type-out any text found in any non-editable file format.
- Images
26.1 Graphics and photographs are to be supplied in digital format by e-mail, file transfer or flash drive.
26.2 Photographs must not exceed a file size of 2mb each (unless by prior arrangement). Larger files will incur an extra cost die to increased time in processing.
- Branding
27.1 All logos and branding must be provided in an industry standard vector format.
- Incidents of fraud, scams or illegal activity in general
28.1 Should there be an allegations against the Customer regarding illegal activity on the website, including but not limited to using the website to scam users or defraud clients, the Kingcom will have the right to terminate this agreement and/or de-activate the website with immediate effect.
28.2 It is the Customer’s responsibility to provide Kingcom with proof that such allegations are false, before the website will be activated again.
- Emails & Spam - Related to hosting
29.1 While hosting with Kingcom, third party servers may be used. In such event the Acceptable Use Policy of such third party server needs to be followed by the Customer at all times.
29.2 Failure to follow the Acceptable Use Policy could result in a first and final warning, or immediate termination of hosting, website and email services, without notice.
- Data Protection
30.1 Kingcom acknowledges that it may process data (which may include personal data) as a result of providing the Services or completing the work in accordance with the terms of this Agreement.
30.2 Kingcom hereby warrants to the Customer that in such circumstances it will in respect of such data which constitutes personal data, observe all the obligations pertaining to an “operator” under the Protection of Personal Information Act No.4 of 2013 (as amended) and will indemnify the Customer against all breaches of the said Act by Kingcom in respect of the data.
- General
31.1 The Agreement shall be governed in all respects by the laws of the Republic of South Africa.
31.2 The terms and conditions contained herein, read with the nature and extent of the Services / Work as well as the costs reflected in the quotation/invoice or service offer packages shall constitute the entire agreement and shall not be varied unless same is reduced to writing, duly signed by, or on behalf of Kingcom and the Customer.
31.3 No indulgence or extension of time which either party may grant to the other shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.
31.4 Without prejudice to any other rights each party hereto may have, any successor-in-title, including but not limited to any executor, heir, liquidator, judicial manager, curator or trustee, of either party shall be bound by this Agreement.
31.5 Each provision in this Agreement is severable from all others and if any provision, phrase, sentence, paragraph or clause is found to be defective or unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and clauses shall nevertheless continue to be of full force.
31.6 The parties hereby agrees in terms of section 45 of the Magistrates' Courts Act No. 32 of 1944, as amended, that either party shall at its discretion, be entitled to institute any legal proceedings which may arise out of or in connection with any agreement between the parties in any Magistrates' Court having jurisdiction in respect of such proceedings in terms of section 28 of that Act, notwithstanding the fact that the value of the claim or the matter in dispute may otherwise exceed the jurisdiction of such Magistrates' Court.
