Kode88 (Pty) Ltd is a website and graphic design company servicing companies World Wide.
These terms and conditions are applicable to all Web Development projects that are undertaken by Kode88 (Pty) Ltd. If the project is to be hosted by Kode88 (Pty) Ltd, then the same terms and conditions will apply.
The following terms and conditions document is a legal agreement between Kode88 (Pty) Ltd and “Client” for the purposes of web site design or development.
These Terms and Conditions set forth the provisions under which the Client may use the services supplied.
Payment of the 50% deposit is an acceptance of our terms and conditions.
These terms and conditions are always available on our website for review.
When the Client places an order to purchase a service from Kode88 (Pty) Ltd, the order represents an offer to Kode88 (Pty) Ltd to purchase the service which is then accepted by Kode88 (Pty) Ltd only when an invoice is sent to the Client.The ‘Website Design contract for supply of services exists between Client and Kode88 (Pty) Ltd.The invoice equals acceptance by Kode88 (Pty) Ltd (or third party supplier) of Clients offer to purchase services from Kode88 (Pty) Ltd and this acceptance of work is a valid contract between Client and Kode88 (Pty) Ltd.
Any other services on the order, which have not been included in the quotation – do not form part of the contract. The Client agrees to check that the details of the quotation are correct and should keep a copy for their records.
If the account goes into 30 days, then full payment will become due for the full amount on the account.
Kode88 (Pty) Ltd reserves the right to withdraw from contracts at any time prior to acceptance.
Charges for services to be provided by Kode88 (Pty) Ltd are defined in the project quotation that the Client receives via e-mail. Quotations are valid for a period of 30 days (thirty) unless alternate timescales has been agreed beforehand with the Client in writing. Kode88 (Pty) Ltds reserving the right to alter or decline to provide a quotation after expiry of the valid timescale.
All Web Development projects will require an advance payment of fifty (50) percent of the project quotation total before work will commence. The remaining balance of the project quotation total will be due upon completion of the work prior to the server or release of materials. Charges for web development do not cover the release of source Photoshop or Flash files; if the Client requires these items then a separate quotation can be obtained.
Payment for services is due by bank transfer.
Kode88 (Pty) Ltd will provide the Client with an opportunity to review the appearance and content of the Web site during the design and once completed. Once the website has gone live, such materials will be deemed to be accepted and approved by the client. Client review terms are subject to be in line with the Quotation emailed to all clients and available to all upon request.
Client agrees to provide any needed information and content required by Kode88 (Pty) Ltd in good time to enable Kode88 (Pty) Ltd to complete a design or web site work as part of an agreed project.
Client agrees that a HTML page built from a graphic design may not exactly match the original design because of the difference between the display in design software and the rendering of HTML code by internet browser software. Kode88 (Pty) Ltd agrees to try to match the design as closely as is possible when building the code.
Kode88 (Pty) Ltd endeavours to create pages that are search engine friendly, however, Kode88 (Pty) Ltd gives no guarantee that the site will become listed with search engines or of certain search results. In no event shall Kode88 (Pty) Ltd be held liable for any changes in search engine rankings because of using Kode88 (Pty) Ltd code.
If an error or issue with the design or code arises from search engine analysis, then Kode88 (Pty) Ltd is not held liable.
After site completion and full payment is received, a Client or a third party of their choosing may wish to edit their website code themselves to make updates. However, the Client agrees that in so doing they assume full responsibility for any issues which occur because of changing the code themselves. If Client or a third party of their choosing edits the web site code and these results in functionality errors or the page displaying incorrectly, then Kode88 (Pty) Ltd reserves the right to quote for work to repair the web site, however Kode88 (Pty) Ltd will not be held liable.
Kode88 (Pty) Ltd reserves the right to assign subcontractors in whole or as part of a project if needed.
Client agrees that it is their responsibility to have regular backups of their website and software made by themselves or third party services in case of a software or hardware failure upon completion and full payment of the project.
All communications between Kode88 (Pty) Ltd and Client shall be by telephone, skype or email.
Payment and Non Payment
Kode88 (Pty) Ltd will provide invoices upfront and upon completion of the work for Web Development and Design and any associated services. Invoices are due within seven (7) days of receipt after which a reminder will be sent to the Client. If the invoice has not been settled on completion of their services then Kode88 (Pty) Ltd will consider the account to be in default.
Additional work requested by the Client, which is not specified in the agreed quotation, is subject to a separate quotation and Kode88 (Pty) Ltd reserves the right whether to quote or accept additional work. If Kode88 (Pty) Ltd accept, additional work may affect timescale and overall delivery time of the project.
The Client can choose to either pay the full cost in one payment or split the cost into 2 payments to be agreed upon with Kode88 (Pty) Ltd. Should the cost be split into 2 payments then the first half of the payment is to be received before work commences and the second payment to be received towards the end of work and before handover of finished files.
Once an invoice is sent to the Client it must either be paid either by bank transfer, and sent with proof of posting to the Kode88 (Pty) Ltds’ email. Kode88 (Pty) Ltd reserves the right to decline further work on a project if there are invoices outstanding with the Client.
Client may request that the Kode88 (Pty) Ltd cancel a project in writing by email to Kode88 (Pty) Ltd and the project is cancelled only if Kode88 (Pty) Ltd confirms work has not been started on the project. If Kode88 (Pty) Ltd has begun or completed the work and the Client no longer requires the files but have agreed to the work, they are still obliged to pay Kode88 (Pty) Ltd for the work that has been carried out.
All invoices are submitted by email except where required otherwise by regulations or agreed at Kode88 (Pty) Ltds’ discretion.
Kode88 (Pty) Ltd reserves the right to suspend clients accounts if account goes over 7 days and a reactivation fee of R500.00 will be charged along with the monthly back payments to reactive the account.
Kode88 (Pty) Ltd will not refund deposits for work already performed on clients design projects or hosting fees/web administration agreements that have been paid in advance. We guarantee to honor our obligations of service as we expect our clients to honor theirs. If the Client decides to terminate their services with Kode88 (Pty) Ltd due to structural, scope or any other business changes, Kode88 (Pty) Ltd will not be obliged to give a refund. If more than 50% of the agreed work has been completed, Kode88 (Pty) Ltd will also not provide a refund on termination of services.
Kode88 (Pty) Ltd shall make every effort to ensure sites are designed to be viewed by the majority of visitors. Client agrees that Kode88 (Pty) Ltd cannot guarantee correct functionality with all browser software across different operating systems.
Clients agree that after handover of files any updated software versions of the main browsers, Domain Name setup changes or hosting setup changes thereafter may affect the functionality and display of their web site. As such, Kode88 (Pty) Ltd reserves the right to quote for any work involved in changing the web site design or web site code for it to work with updated browser software, domain name or hosting changes at their discretion, but will not be held liable.
Post Project Alterations
Kode88 (Pty) Ltd cannot accept responsibility for any alterations caused by the Client or a third party occurring to the Client’s pages once installed. Such alterations include, but are not limited to additions, modifications or deletions. Kode88 (Pty) Ltd may require a one-off Web Development charge before resolving any issues that may arise.
Liability and Warranty Disclaimer
Kode88 (Pty) Ltd provides their web site and the contents thereof on an “as is” basis and makes no warranties with regard to the site and its contents, or fitness of services offered for a particular purpose. Kode88 (Pty) Ltd cannot guarantee the functionality or operations of their web site or that it will be uninterrupted or error free, nor does it warrant that the contents are current, accurate or complete.
The Client agrees Kode88 (Pty) Ltd is not liable for absence of service as a result of illness or holiday.
The Client agrees Kode88 (Pty) Ltd is not liable for any failure to carry out services for reasons beyond its control including but not limited to: acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
Kode88 (Pty) Ltd is not liable for any consequences or financial losses such as, but not limited to, loss of business, profit, revenue, contract, data or potential savings, relating to services provided. Kode88 (Pty) Ltd cannot be held liable if a Client website has been hacked after site handover and loss or damages occurred due to the website being hacked.
On handover of files from Kode88 (Pty) Ltd to Client, the Client shall assume entire responsibility in ensuring that all files are functioning correctly before use.
Whilst every effort is made to make sure files are error free, Kode88 (Pty) Ltd cannot guarantee that the display or functionality of the web design or the web site will be uninterrupted or error free. If after handover of files errors are found in code the developer has created, domain name setup and hosting setup are the same as when work began, then Kode88 (Pty) Ltd can correct these errors for the Client at its own discretion, but will not be held liable for these errors.
Kode88 (Pty) Ltd may from time to time recommend to the Client that updates are needed to their site to comply with, including but not limited to, new legislations, software releases and web standards. Kode88 (Pty) Ltd reserves the right to quote for any updates as separate work. Client agrees Kode88 (Pty) Ltd is not liable for any failure to inform or implement these updates to their site. Client agrees that it shall defend, indemnify, save and hold Kode88 (Pty) Ltd harmless from any demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.
Kode88 (Pty) Ltd and any third party associates agrees that, except if directed by the Client, it will not at any time during or after the term of this agreement disclose any confidential information. Likewise, the Client agrees that it will not convey any confidential information about Kode88 (Pty) Ltd to another party.
In projects Kode88 (Pty) Ltd and any third party associates shall use information provided by a Client in relation to this agreement in accordance with the current Data Protection Act and also for the following purposes 1) to identify the Client in communications with them 2) to contact the Client from time to time to offer them services or products which may be of interest to or benefit the Client.
Kode88 (Pty) Ltd reserves the right to terminate a project with a Client at any time without prior notification if it finds the Client in breach of these terms and conditions. Kode88 (Pty) Ltd shall be the sole arbiter in deciding what constitutes a breach. No refunds are given in such a situation.
This agreement shall be governed by the laws of South Africa, which shall claim venue and jurisdiction for any legal motion or claim arising from this agreement. This agreement is void where prohibited by law.
Where one or more terms of this 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.
All matters pursuant to this agreement are governed by South African Law and are under exclusive jurisdiction of the South African Courts.
Kode88 (Pty) Ltd reserves the right to alter these Terms and Conditions at any time without prior notice, the latest terms and conditions can be found at the Kode88 (Pty) Ltd web site at www.kode88.co.za.
By accepting a quotation or making a payment of deposit to use the services supplied, the Client acknowledges to have accepted the Terms and Conditions of this Agreement, and agrees to be legally binding by these Terms and Conditions.
These Terms and Conditions supersede all previous representations, understandings or agreements. The Client’s payment of deposit constitutes agreement to and acceptance of these Terms and Conditions. Payment online is an acceptance of our terms and conditions.
1.2. Reference to “Kode88 eCommerce Network”, “we”, “our” or “us” includes our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and suppliers.
1.3. This Agreement applies to any person who uses Kode88 eCommerce Network, accesses, refers to, views, shares and/or downloads the information made available by Kode88 eCommerce Network on the Website for any purpose whatsoever (hereinafter referred to as “user”, “users”, “you”, “your”, “suppliers”, “resources”, “online store” or “eCommerce stores”).
2. DESCRIPTION OF THE SERVICES OF KODE88 ECOMMERCE NETWORK
2.1. Kode88 eCommerce Network is an online directory of e-commerce websites together with a database of potential suppliers and resources in relation thereto, with a view to connecting e-commerce website owners with the potential suppliers and resources, in addition to providing access to industry specific events and seminars, in exchange for direct or indirect consideration.
3. USE OF KODE88 ECOMMERCE NETWORK
3.1. The conditions in respect of your use of Kode88 eCommerce Network, require that you agree that you will not:
3.1.1. violate any laws of the Republic or other foreign state;
3.1.2. post any threatening, harmful, defamatory, abusive, obscene, indecent, or otherwise inappropriate material;
3.1.3. post any content that is false or misleading;
3.1.4. infringe on the rights of any third-party;
3.1.5. distribute or disseminate viruses or other technologies that may harm Kode88 eCommerce Network or the interests, property or rights of Kode88 eCommerce Network users;
3.1.6. distribute or contain spam, chain letters, phishing content, pyramid or Ponzi scheme material;
3.1.7. use any spider, crawler, scraper or other automatic means of accessing Kode88 eCommerce Network in order to collect, harvest or aggregate any content on the Website for any purpose whatsoever without our express written permission;
3.1.8. impose an unreasonable or unnecessary load or strain on our infrastructure, or interfere with the effective working of Kode88 eCommerce Network;
3.1.9. modify, copy, distribute or otherwise reproduce any other person’s content without their consent;
3.1.10. bypass ordinary measures used to prevent or restrict access to Kode88 eCommerce Network.
3.1.11. collect any information about others, including email addresses, without their consent;
3.2. You are solely responsible for any and all information that you submit to Kode88 eCommerce Network, and any consequences that may arise therefrom. We expressly reserve the right at our sole instance and discretion to refuse and/or delete and/or take-down content that in our opinion is inappropriate, misleading or is otherwise in breach of this Agreement.
3.3. Further, we reserve the right at our sole discretion to restrict or cancel a user’s usage of Kode88 eCommerce Network temporarily or permanently,
3.4. We further reserve the right, at our sole discretion, to refuse the registration of a user.
4. ABUSE OF KODE88 ECOMMERCE NETWORK
4.1. Kode88 eCommerce Network and its users work together to keep the Website working properly and the community safe. Any problems, offensive content and policy breaches are to be reported to us using by emailing email@example.com.
4.2. Without limiting any other legal remedies we may have, we are entitled to issue warnings, remove any content, limit or terminate our service, and take any steps necessary, whether legal, technical or otherwise, to keep users off Kode88 eCommerce Network, if any users are acting in a manner which falls foul of this Agreement.
4.3. You accept that Kode88 eCommerce Network is not under any obligation to monitor any data or content which is submitted to or available on the site.
4.4. We do not accept any liability for monitoring Kode88 eCommerce Network, or any failure thereof, nor do we accept any liability for unauthorised or unlawful content on Kode88 eCommerce Network or use of Kode88 eCommerce Network by any users.
4.5. In order to register as a supplier on Kode88 eCommerce Network, it is a condition that the online registrant’s email address must match the top-level domain of the registrant’s website URL.
5. MEMBERSHIP FEES AND SERVICES
5.1. South African eCommerce stores may register and list their online store for free. However, should you wish to receive enquiries via our network, or to have full access to our resources section, we charge R299.00 (Two Hundred and Ninety Nine Rand) inclusive of VAT, for a 12 (Twelve) month membership, which includes a free email consultation with Kode88 eCommerce Network. Our membership fees are quoted in South African Rands.
5.2. We will notify you of changes to our membership fee policy by posting such changes on the Website.
5.3. Our membership fees are non-refundable, and you are responsible for paying them when they are due. If you do not, we may limit or terminate your ability to use the services.
5.4. If your payment method pertaining to the membership fails, or your account is past due, we may collect membership fees owed using other collection mechanisms, whether legal or otherwise You hereby agree that the costs incurred in collecting such membership fees, shall be for your account.
6.1. Kode88 eCommerce Network contains content from us, you, and other users.
6.2. Kode88 eCommerce Network is protected by copyright laws and other international treaties. Content displayed on or as a result of Kode88 eCommerce Network is protected pursuant to copyrights laws and other international conventions.
6.3. You agree not to copy, distribute and/or disseminate content from Kode88 eCommerce Network without our express written consent.
6.4. You may not reverse engineer, disassemble, decompile or otherwise attempt to discover any of the source code contained in Kode88 eCommerce Network. Without limiting the foregoing, you agree not to reproduce, sell, copy, exploit or resell, for any purpose whatsoever, any aspect of Kode88 eCommerce Network, apart from your own content.
6.5. When you provide us with content, you are granting us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright, publicity, and database rights to that content.
7. INFRINGEMENT OF RIGHTS
7.1. Do not post content that may infringe the rights of any third parties. This includes, but is not limited to, content that infringes on intellectual property rights such as copyrights and trademarks.
A number of varied products and/or services are offered on Kode88 eCommerce Network by entities within South Africa. Entitled parties, in particular the owners of copyright, trademark rights or other rights owned by third parties can report any content which many infringe on their rights, and request for this content to be removed from Kode88 eCommerce Network.
8. REPORTING OF ANY INFRINGEMENTS
8.1. In order to report in infringement, an email, containing the words “Infringement Notice” in the subject line, needs to be sent to firstname.lastname@example.org.
8.2. Should you report an infringement, you expressly warrant that you are either the entitled party or an officially authorised representative.
9.1. You agree not to hold Kode88 eCommerce Network liable in delict, contract or otherwise, for any content and/or listing that other users post, nor any loss or damage caused as a result of our negligence or gross negligence.
9.2. We do not review eCommerce store, resource or supplier postings and/or content, and are not involved in the actual transactions between stores, resources or suppliers. As most of the content on Kode88 eCommerce Network comes from other users, we do not guarantee the accuracy of such postings, content, user communications or their quality, legality or safety.
9.3. In no event do we accept liability of any content which may be unlawful, threatening, abusive, defamatory, obscene or indecent, or material of any kind which infringes on the rights of any other person or entity, including, but without limitation to, any transmissions which may constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law of the Republic or other international law.
9.4. We cannot guarantee continuous, error-free or secure access to our services, or that any defects in respect of our service will be corrected.
9.5. While we will use reasonable endevours to maintain an uninterrupted service, we cannot guarantee, nor do we warrant, expressly or impliedly, the continuous availability of our services.
9.6. Accordingly, to the extent that we are legally permitted, we expressly disclaim all warranties, representations and conditions, express or implied, including those of quality, merchantability, merchantable quality, durability, fitness for a particular purpose and those arising by virtue of statute.
9.7. We are not liable for any loss, whether of monetary, goodwill, or reputation, or any special, indirect, or consequential damages that may arise out of your use of Kode88 eCommerce Network. This applies even in the circumstances where we could have reasonably foreseen the possibility of such damage occurring.
10. SECURITY OF Kode88 eCommerce Network
10.1. In order to maintain security and reliable operation of the Website for all users, Kode88 eCommerce Network expressly reserves the right at its discretion to take whatever action it may deem necessary to preserve the security, integrity and reliability of its Kode88 eCommerce Network and the contents comprising same.
10.2. Any user who commits an offence canvassed in Chapter 13 of the Electronic Communications and Transactions Act 25 of 2002 shall, notwithstanding criminal prosecution, be liable for any resulting damage, liability, or loss suffered by Kode88 eCommerce Network and its affiliates, agents and/or partners.
11. FURTHER APPLICATION OF THE ELECTRONIC TRANSACTIONS AND COMMUNICATIONS ACT 25 OF 2002 (“ECT ACT”)
11.1. Data Messages (as defined in the ECT Act) will be deemed to have been received by Kode88 eCommerce Network if and when Kode88 eCommerce Network responds to the Data Messages.
11.2. Data Messages sent by Kode88 eCommerce Network to you will be deemed to have been received by you in terms of the provisions specified in section 23(b) of the ECT Act.
11.3. You acknowledge that electronic signatures, encryption and/or authentication are not required for valid electronic communications between you and Kode88 eCommerce Network.
11.4. You warrant that Data Messages sent to us from any electronic device, used by you, from time to time or owned by you, were sent and or authorised by you personally.
11.5. Information to be provided in terms of section 43(1) of the ECT Act:
Address for service of legal documents:
Suite 410 Hiddingh Village,
12. FORCE MAJEURE
12.1. We are not liable for any failure to perform in terms of this agreement if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity, telephone service or internet connectivity. Neither you, nor Kode88 eCommerce Network, are entitled to terminate this agreement in such circumstances.
13. RESOLUTION OF DISPUTES
13.1. Except in those instances where provision is made for a dispute to be referred to a specific adjudicator in terms of this Agreement, should any dispute arise in respect of or pursuant to this Agreement, including, without limiting the generality of the aforegoing, any dispute relating to:
13.1.1. the interpretation or performance of any of the terms;
13.1.2. any of the rights and obligations of Kode88 eCommerce Network, a supplier, resource, eCommerce store or user of the Website;
13.1.3. any procedure to be followed;
13.1.4. the termination of this Agreement; or
13.1.5. the rectification of this Agreement,
then the persons and or entities which are party to the dispute (“the Parties”) shall endeavour to resolve the dispute by negotiation.
13.2. This entails one of the Parties inviting the other or others in writing to meet and to attempt to resolve the dispute within 14 days from the date of written invitation.
13.3. If the dispute has not been resolved by such negotiation within 14 days of the commencement thereof by agreement between the Parties, then the Parties shall:
13.3.1. Identify by mutual agreement, an Attorney or Advocate of not less than 10 years standing, to mediate the dispute; or failing such agreement, such Attorney or Advocate nominated in writing by the chairman of the Johannesburg Bar counsel for the time being;
13.3.2. The dispute shall be administered upon such terms as agreed between the Parties and the Attorney or Advocate so nominated; and
13.3.3. The decision of the mediator shall become final and binding within 14 days of delivery thereof to the Parties, unless one or other of the parties disputes the mediator’s decision by written notice to the other party within the aforesaid 14-day period, in which event the dispute shall be referred to court with appropriate jurisdiction to adjudicate the dispute.
14.1. This Agreement and the other policies posted on Kode88 eCommerce Network constitute the entire agreement between Kode88 eCommerce Network and you, superseding any prior agreements.
14.2. To the extent permitted by applicable law, this Agreement shall be governed and construed in all respects by the laws of the Republic of South Africa. You agree that any claim or dispute you may have against Kode88 eCommerce Network.com must be resolved in the appropriate forum within the Republic of South Africa.
14.3. If we do not enforce any particular provision, we are not waiving our right to do so later. If a court, mediator or other appropriate forum strikes down any of this Agreement, the remaining provisions will survive. We may automatically assign this agreement in our sole discretion to the relevant assignee without the consent of any user.
14.4. We may update this Agreement at any time, which updates will take effect upon your visiting of the Website.