Standard Terms and Conditions for Website Development

1. Interpretation
   In this agreement:
   1. clause headings are for convenience and are not to be used in its interpretation;
   2. unless the context indicates a contrary intention:
      1. an expression which denotes:
         1. any gender includes the other genders;
         2. a natural person includes a juristic person and vice versa;
         3. the singular includes the plural and vise versa;
   3. the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
      1. "Agreement" means these terms and conditions as amplified by the Letter of Engagement;
      2. "Client" means the party for whom the Developer is undertaking the development and design of a website, as set out in the Letter of Engagement;
      3. "Code" means HTML computer programming / formatting code, any files necessary to make image maps function and any server code necessary to make forms, buttons, check-boxes, and the like function;
      4. "Deliverables" means the work product prepared by the Developer for delivery to Client in terms of this Agreement and includes all Code, Documentation, reports, other materials developed by Developer in the course of this Agreement and any other items necessary for the operation of Client's website (other than third-party operating systems software, third-party networking software, web browsers and hardware), including all enhancements thereto;
      5. "Documentation" means all written or typed materials that relate to Code, including materials useful for design such as logic manuals, flow charts, and principles of operation that may be developed by Developer in the course of this Agreement;
      6. "Developer Technology" means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, models (including, without limitation, function, process, system and data models); templates; user interfaces and screen designs; general purpose software tools, utilities and routines; and logic, coherence and methods of operation of systems) which Developer has created, acquired or otherwise has rights in prior to this Agreement, and which Developer may employ, provide or modify in providing the Services hereunder;
      7. "Developer" means James Hemphill (Pty) Ltd trading as "JH Design";
      8. "effective date" means the date of signature of this Agreement by the party last signing;
      9. "enhancements" means changes or additions to Code and related Documentation;
      10. "Internet" means the world-wide network of computers commonly understood to provide some or all of the following features: electronic mail, file transfers through File Transfer Protocol ("FTP"), Telnet access to local and remote computers, Usenet Newsgroups, Gopher access to information on local and remote computers, Wide Area Information Servers ("WAIS"), and World Wide Web access;
      11. "Letter of Engagement" means the letter of engagement in terms of which Developer is appointed by Client to perform the Services (including, without limitation, signed cost estimates);
      12. "the Services" means the web page development services set out in the Letter of Engagement;
      13. "web browser" means software designed to allow, inter alia, interactive access to the World Wide Web, including, without limitation, Netscape Navigator and Microsoft Internet Explorer;
      14. "web page" means a document of file that is formatted using HTML and that is intended to be accessible by Internet users via a web browser;
      15. "website" means a series of interconnected web pages residing in a single directory on a single web server;
      16. "World Wide Web" means all of the web pages that are accessible to a typical computer user with appropriate access to the Internet and a web browser;
2. Precedence
   Should there be any conflict between these terms and conditions and the Letter of Engagement, the latter shall prevail.
3. Duration
   Subject to the prevision of clause 12 this agreement shall commence on the effective date and shall continue thereafter until completion of the Services.
4. Consideration
   As consideration for the Services rendered by Developer hereunder, Client shall pay to Developer the fee set out in the Letter of Engagement, payable by Client monthly in arrears, within 30 (days) of the date of Developer's tax invoice in respect thereof. The fee is inclusive of Value Added Tax.
5. Client Warranties
   1. Client hereby represents and warrants that:
      1. in respect of all material provided by it to Developer for inclusion in Client's website, in whatsoever form, including, without limitation all written content, logos, design, pictures, photographs, drawings, video clips, animation:
         1. it has the right to publish such material on its website without restriction;
         2. such material does not and will not infringe any patents, copyrights, trademarks, company names, close corporation names, trade secrets or other intellectual property rights, privacy or similar rights of any person or entity, nor any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending against Client (or, insofar as Client is aware, against any entity from which Client has obtained such rights);
         3. such material does not or will not contravene any statutory or Constitutional provision, including without limitation, any provision of the Bill of Rights, in the Republic of South Africa;
      2. It is entitled, without restriction, to link to any website in respect of which it has requested hyperlinks to be included in its website.
   2. Accordingly, Client hereby indemnifies and holds Developer it's employees, representatives, agents and the like harmless against any loss, harm or damage which may arise as a result of the alleged or actual breach of the above warranties.
6. Copyright & Ownership
   Except as provided herein, upon full and final payment to Developer of the fees, the Deliverables will become the property of Client. To the extent that any Developer Technology is embodied in any of the Deliverables, Developer hereby grants Client, upon full and final payment to Developer hereunder, a royalty-fee, fully paid-up, world-wide, non-exclusive license to use such Developer Technology in connection with the Deliverables.
7. Confidentiality
   Developer and Client shall treat this project as confidential during the currency thereof. Once Client has approved its final website, however, Developer may list Client as a client of Developer and may include a link to Client's website on Developer's website.
8. Non-Solicitation
   Client undertakes that it shall not without Developer's prior written consent, either during, or within 6 (six) months after termination of this agreement, engage, employ or otherwise solicit for employment any person who during the currency of this agreement was an employee of Developer.
9. Non-Exclusivity
   Nothing in this agreement shall be construed as precluding or limiting in any way the right of Developer to provide web page development or other services of any kind or nature whatsoever to any person or entity as Developer in its sole discretion deems appropriate. In addition, and notwithstanding anything in this agreement to the contrary, the parties acknowledge and agree that:
   1. Developer will own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Developer Technology; and
   2. Developer may employ, modify, disclose, and otherwise exploit the Developer Technology (including, without limitation, providing services or creating programming or materials for other clients).
10. Limitation of Liability
    Developer shall not under any circumstances be liable for any consequential, indirect or special damages of whatsoever nature and howsoever arising, whether in contract, delict or otherwise, suffered by Client arising out of the design or use of the website developed pursuant to this agreement. Without derogating from the aforegoing, Developer's total liability to Client for direct damages pursuant to this agreement will be limited to the total aggregate amounts paid to it by Client pursuant to this agreement.
11. Dispute Resolution & Arbitration
    1. Any dispute which may arise between the parties shall in the first instance be referred to a joint committee of a Director of Developer and a senior officer of Client, or alternates appointed by them, who will use their best endeavours to resolve the dispute within 14 (fourteen) days of the dispute having been referred to them. If the dispute is not resolved in accordance with the aforegoing, it shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
    2. The arbitration referred to in 11.1. shall be held:
       1. at Johannesburg in the English language; and
       2. immediately and with a view to its being completed within 21 (twenty-one) days after it is demanded.
    3. The parties irrevocably agree that the decision in arbitration proceedings:
       1. shall be final and binding upon the parties;
       2. shall be carried into effect;
       3. may be made an order of any court of competent Jurisdiction.
    4. This clause 11 is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement.
12. Breach and Termination
    1. Should Client commit a material breach of this agreement and fail to remedy such breach within 14 (fourteen) days of having been called upon in writing by the other party to do so, then and in such event Developer shall be entitled, in addition to any other rights and remedies that it may have in terms of this Agreement or otherwise, including the right to recover damages, to terminate this Agreement.
    2. Client may only terminate this Agreement on written notice to Developer. Upon receipt of such written notice, Developer shall cease all work in progress and inform Client of the extent to which performance has been completed.
    3. If this Agreement is terminated for any reason, Developer shall be entitled to payment for work done up to the date of termination. In such event Developer shall and hereby grants all right, title, and interest to the extent contemplated in the Agreement, in the Deliverables in the form in which they exist on the date of termination to Client.
13. Notices
    1. The parties hereto select as their respective domicilia citandi et executandi for the purpose of giving or sending any notice provided for or required hereunder the physical addresses and telefax numbers set out in the Letter of Engagement, or such other address or telefax numbers as may be substituted by notice given as herein required.
    2. Any notice addressed to party at its physical address shall be delivered by hand or sent by telefax.
    3. Any notice shall be deemed to have been given:
       1. if hand delivered, on the day of delivery,
       2. if sent by telefax, on the day and time of sending of such telefax, as evidenced by a fax confirmation printout, provided that such notice shall be confirmed by prepaid registered post on the date of despatch of such telefax, or, should no postal facilities be available on that date, on the next business day.
14. General
    1. This agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof and save as otherwise provided herein no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties hereto or their duly authorised representative. The parties agree that no other terms or conditions, whether oral or written, and whether express or implied will apply hereto.
    2. No waiver of any of the terms and conditions of this agreement will be binding or effectual for any purposes unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power of privilege.
    3. This agreement does not constitute a partnership and Developer, in providing the Services, is acting and shall act solely as an independent contractor. Neither party shall under any circumstances be entitled to bind the credit of the other party.
    4. Should any of the terms and conditions of this agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.
    5. Neither party shall be entitled to transfer or assign, partially or entirely, any of its right or obligations under this agreement to a third party without the prior written consent of the other party.
    6. This agreement will be governed by and constructed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.