THESE ARE THE STANDARD TERMS AND CONDITIONS BETWEEN PROTOGRAPHIX AND ITS CLIENTS
1. DEFINITION OF TERMS AND AUTHORIZATION
1.1
Definitions
The Client - the entity which enters into a contract with PROTOGRAPHIX
Domain Name - the root address of a website, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Host - the company on whose system the Website physically resides.
Link, Hyperlink - a 'clickable' link embedded on a web page that may take the form of a graphic or text.
Search Engine - a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
Website - a collection of web pages and associated code, which forms an integrated presence.
The Work - the subject matter of the contract between the Client and PROTOGRAPHIX.
1.2
Authorization
The Client is engaging PROTOGRAPHIX, as an independent contractor for the specific purpose of designing a Website or graphic design to be published on the Client's account on an Internet Service Provider (ISP)/Web Presence Provider (WPP) computer, or be provided to the Client as a downloadable file, or a file on CD at the Client's option. The Client hereby authorizes PROTOGRAPHIX to access this account, and authorizes the Host to provide PROTOGRAPHIX with full access to the Client's account and any other programs needed for the Work that are included as part of the Client's Work agreement.
2. FEES
2.1
Fee Payable
A deposit of 50% of the total fee payable under the contract is due immediately upon the agreement of the contract. The remaining 50% shall become due when the Work is completed to the reasonable satisfaction of the Client but subject to the terms of Clause 4.3 Approval of Work and Clause 4.4 Rejected Work hereof. PROTOGRAPHIX reserves the right not to begin the Work until the said deposit has been paid in full. The fee quoted in the contract does not include the cost of domain registration, hosting set up fee, or hosting.
2.2
Maintenance Fees
Maintenance, if included in the contract, shall be on a month-to-month basis, with a minimum of $50 payable in any month where updating is necessary. Fees will be assessed on an hourly basis at $50 per hour or part thereof. No fee will be required in a month where no updating is necessary.
2.3
Refund Policy
If the Client halts work and applies for a refund within 10 days to PROTOGRAPHIX, work completed shall be billed at the hourly rate of $50/hour and deducted from the initial payment, the balance of which shall be returned to the Client. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the client shall be liable to pay for all work completed at the hourly rate stated above. No portion of this initial payment will be refunded unless written application is made within 10 days of signing this contract.
3. DISCLAIMERS
3.1
Third Parties
PROTOGRAPHIX can take no responsibility for services provided by third parties through us or otherwise, including the Hosting of the Client's Website.
3.2
ISP
The Client understands that any Internet Service Provider (ISP) services require a separate contract with the ISP of the Client's choice. The Client agrees to select an ISP that allows PROTOGRAPHIX full access to the Website and cgi-bin directory via FTP.
3.3
Maintenance and Correction of Errors
PROTOGRAPHIX takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the Website after the Work has been completed. Errors (both technical and typographical) attributable to PROTOGRAPHIX will be corrected free of charge, but PROTOGRAPHIX reserves the right to charge a reasonable fee for correction of errors for which PROTOGRAPHIX is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to PROTOGRAPHIX by the Client.
3.4
Extent of Work
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
3.5
Consequential Loss
Under no circumstances will PROTOGRAPHIX be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure.
3.6
Performance Liability
PROTOGRAPHIX does not warrant that the functions supplied by Web pages, graphic designs, consultation, advice, or Internet Website will meet the Client's requirements or that the operation of Web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the Web pages and Website is with the Client. In no event will PROTOGRAPHIX be liable to the Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these Web pages or Website.
3.7
Electronic Commerce Laws
The Client agrees that the Client is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the Work or any other services contemplated herein, and will hold harmless, protect, and defend PROTOGRAPHIX and its subcontractors from any claim, suit, penalty, tax, fine, penalty, or tariff arising from the Client's exercise of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
3.8
Status and Duration of Offers
Proposals and offers are valid for a period of one month from the date issued. PROTOGRAPHIX is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed upon by both parties. This timetable must be agreed within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3.9
Search Engine Listings
PROTOGRAPHIX does not guarantee listings on Search Engines and the Client accepts that it is Search Engines and not PROTOGRAPHIX who determine whom they list and whom they will not. The Client further understands there is no guaranteed placement or rank on the Search Engines and that a new website may never even appear on Search Engines at all. PROTOGRAPHIX does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly.
4. COMPLETION OF WORK AND PAYMENT
4.1
Completion of Work
PROTOGRAPHIX warrants completing the Work in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. PROTOGRAPHIX will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. PROTOGRAPHIX will not undertake changes to the specifications of the Work, which would increase the cost, without prior written authorization from the Client.
4.2
Supply of Materials
The Client is to supply all materials and information required for PROTOGRAPHIX to complete the Work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client's failure to supply such materials leads to a delay in completion of the Work, PROTOGRAPHIX has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client's failure to supply materials prevents progress on the Work for more than 21 days, PROTOGRAPHIX has the right to invoice the Client for any part or parts of the Work already completed.
4.3
Approval of Work
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify PROTOGRAPHIX, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any of the Work that has not been reported in writing to PROTOGRAPHIX as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, Work cannot subsequently be rejected, and the contract will be deemed to have been completed and the 50% balancing payment under Clause 2.1 Fee Payable will become due. The Contract will remain in effect until all obligations have been completed in terms of this Clause.
4.4
Rejected Work
If the Client rejects the Work within the 7 day review period, or will not approve subsequent Work performed by PROTOGRAPHIX to remedy any points reported by the Client as unsatisfactory, and PROTOGRAPHIX considers that the Client is unreasonable in his repeated rejection of the Work, the contract will be deemed to have expired and PROTOGRAPHIX can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
4.5
Payment
Upon completion of 7 day review period, PROTOGRAPHIX will invoice the Client for the 50% balancing payment in accordance with Clause 2.1 Fee Payable hereof, which, in the absence of agreement to the contrary, is to be paid by the Client within 21 days of the date that the invoice was issued.
4.6
Remedies for Overdue Payment
If payment has not been received by the due date, PROTOGRAPHIX has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 21 days after the due date, PROTOGRAPHIX has the right to replace, modify or remove the Website and revoke the Client's license of the Work until full payment has been received. By revoking the Client's license of the Work or removing the Website from the Internet, PROTOGRAPHIX does not remove the Client's obligation to pay any outstanding monies owing.
5. INTELLECTUAL PROPERTY
5.1
Offers and Proposals
Offers and proposals made by PROTOGRAPHIX to potential clients should be treated as trade secrets and remain the property of PROTOGRAPHIX. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from PROTOGRAPHIX. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
5.2
Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to PROTOGRAPHIX for inclusion on the Website or for use in graphic design. The conclusion of a contract between PROTOGRAPHIX and the Client shall be regarded as a guarantee by the Client to PROTOGRAPHIX that all such permissions and authorities have been obtained and that the inclusion of such material on a Website or for print would not constitute a criminal offence or civil delict. By agreeing to these terms and conditions, the Client removes the legal responsibility of PROTOGRAPHIX and indemnifies the same from any claims or legal actions however related to the content of the Client's site.
5.3
Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify PROTOGRAPHIX, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
5.4
Licensing
Once PROTOGRAPHIX has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Clause 4.3 hereof, the Client will be granted a license to use the Website and its contents.
5.5
Copyright to Web Pages
Copyright to the finished assembled work of Web pages produced by PROTOGRAPHIX is owned by PROTOGRAPHIX. Upon final payment of this contract, the Client is assigned rights to use the design, graphics, and text contained in the finished assembled Website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the Client, and remain the property of their respective owners. PROTOGRAPHIX and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios. All websites will contain a copyright/legal statement with a link to PROTOGRAPHIX internet website.
5.6
Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which PROTOGRAPHIX or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from PROTOGRAPHIX. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which PROTOGRAPHIX or their suppliers owns the copyright. PROTOGRAPHIX acknowledges the intellectual property rights of the Client. Information passed in written form to PROTOGRAPHIX that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
6. RIGHTS AND RESPONSIBILITIES
6.1
Right to Terminate
PROTOGRAPHIX reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable.
6.2
Events Beyond the Control of PROTOGRAPHIX
PROTOGRAPHIX will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of PROTOGRAPHIX.
6.3
Supply and Pricing of Services
PROTOGRAPHIX reserves the right to use whomever it feels appropriate at the time for third party software and services, and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
7. INTERPRETATION
7.1
Jurisdiction
This Agreement shall be governed by the laws of the United States of America, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between PROTOGRAPHIX and the Client. The said contract is void where prohibited by law.
7.2
Survival of Contract
Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
7.3
Change of Terms and Conditions
These terms & conditions may change from time to time. The Client will be informed of revisions as and when they are issued.
Standard Terms and Conditions last updated 5th April 2009