Our Terms and Conditions

1 Definitions

The Client : The company or individual requesting the services of Elminster Trading cc.

the Developer: Elminster Trading (CK 97/014186/07): Primary designer, employees or affiliates. Trading as Warthog Web Design, Durban Website Designers.

2 General

Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date that the deposit is made.

The Developer will provide consulting services to the Client relating to the creation or modification of a website according to the quotation. Subject to any lawful restraint imposed upon it by any other party (such as confidence), the Developer will make available to the Client all knowledge, expertise and information in its possession in performing the services. If the Client wishes the Developer to perform any other services than those specified in the quotation (including without limitation to provide additional content and/or functionality) then the Developer shall be entitled to quote the Client separately for the provision of those services. If the Client accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services and products.

The Developer will carry out work only where an agreement is provided in writing.

3 Website Development

On the date the deposit is received by the Developer from the Client, a deadline date will be set 30 days hence by which time the website development will be considered complete. At the same time, the estimated development hours are allocated. The Client agrees to make available within two weeks of the deadline date to the Developer all materials required to complete the website to the agreed standard (see Website Design Procedure - here). Content received after this date may incur an additional late submission fee.

3.1 Late Submission

The Developer regards the development of the website as complete at the deadline date and full payment is due. Content received after the deadline date will incur an additional late submission fee. The Developer reserves the right to submit a separate quotation to the Client and to request payment for further alterations before continuing work.

3.2Resubmission of Content

Any resubmission of content already edited and coded will count towards development time and may compromise the final deadline.

3.3 Liability for Deadlines

The Developer will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.

3.4 Website Content

The Developer will populate the Client's website with the content provided by the Client and at its discretion, it will correct obvious errors, the Developer takes no other responsibility for the content supplied.

All content must be submitted in editable, digital form (.doc, .jpg, .gif, png).

Whilst small changes to the specification are anticipated, substantial changes such as additional pages, additional functionality etc. will be quoted separately at the discretion of the Developer.

3.5 Content not Forthcoming

Should no content or instructions be received by the deadline, this agreement may be terminated upon notice in writing by the Developer and the Developer will be entitled to claim costs to that date.

3.6 Content Research

Should the Client wish the Developer to provide all or part of the content for the website, such service will form a separate agreement unless stipulated in the quotation.

3.7 Intellectual Property Rights

The intellectual property rights are reserved by the Developer until final payment is made.

3.8 Software

Any necessary software purchased by the Developer will be for the Client's account.

3.9 Alternate Design

If an error or issue with the design or code arises during the project which does not allow the design or code to match the original specification, the Client agrees that the Developer can apply the nearest available alternative solution at his discretion .

3.10 Subcontractors

The Developer reserves the right to assign subcontractors in whole or as part of a project if needed.

3.11Changes to the Website

Additional work requested by the Client which is not specified in the agreed quotation is subject to a separate quotation and the Developer reserves the right whether to quote or accept additional work. The Client understands that additional work which is accepted by the Developer may effect the overall delivery time of the project.

After completion, the Client or a third party of his choosing may wish to edit his website code himself. However, the Client agrees that in so doing he assumes full responsibility for any issues which occur as a result of changing the code. If the editing of the web site code results in functionality errors or the page displaying incorrectly, then the Developer reserves the right to quote to repair the web site.

3.12 Browser Updates

The Client agrees that after handover of files, any updated versions of the main browsers, domain setup changes or hosting setup changes thereafter may affect the functionality and display of his website. As such, the Developer reserves the right to quote for any work involved in changing the website design or web site code for it to work with updated browser software, domain name or hosting changes.

3.13 Consultations

The Developer's quotation includes one meeting with Clients either at the Developer's premises or the Client's within 20kms of Durban CBD. Subsequent meetings pursuant to the Agreement will attract an hourly fee.

The Developer shall be entitled to provide services remotely from its own premises and shall not be required to attend the Client's premises unless expressly specified in the quotation.

3.14 Content Management System Development

Once final payment has been received by the Developer for a content management system website, the Developer accepts no further responsibility for the content of that website.

It is the Client's responsibility to ensure that his hosting package supports PHP and MySQL.

The Developer agrees to create pages per the agreed quotation but will populate content in no more than ten pages.

Training in the use of the content management system will be quoted separately.

3.15 Database and eCommerce Development

The Developer will populate only sufficient database records in order to assess functionality at its discretion. It is the Client's responsibility to populate the database fully. Should the Client wish the Developer to populate the database fully, the Developer will submit a separate quotation and reserves the right to decline. Training in the updating of the database will be quoted separately.

Where websites are developed on servers not recommended by the Developer, the Client will provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the website to be correctly developed.

3.16 Errors

The Client is expected to test fully any website developed by the Developer before being made generally available for use. Where "bugs", errors or other issues are found within 30 days of the website becoming live, the Developer will endeavour (but is not obliged) to correct these issues to meet the standards of function outlined in the brief.

4 Compatibility

The Developer will endeavour to ensure that the website will function correctly on the server it is initially installed on and that it will function correctly when viewed with Internet Explorer Version 8+ and to an acceptable level with late/current Mozilla browsers (Firefox and Chrome). The Developer can offer no guarantees of correct function with all browser software.

5 Website Hosting

Whilst the Developer recommends hosting companies to host websites, no guarantees can be made as to the availability or interruption of this service. the Developer cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss.

6 Website Maintenance Option

Search Tuning: The Developer undertakes to check the website position regularly and to adjust the search cues where necessary.

Small Updates: Updates of up to 30 minutes duration will be made to the content when requested per month. This does not roll over. Setup of email accounts counts as updates.

7 Website Optimization

Due to external factors, such as changes to the way search engines rank websites, the Developer cannot offer any guarantees regarding search position and cannot accept any liability for change in ranking of the website.

8 Content Exclusion

The Developer reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial.

9 Payment of Accounts

A non-refundable deposit of the development fee is required before any work is carried out. The balance, including fees for additional work, hosting and registration etc. is payable prior to final publishing. Once the balance of fees has been received, the Developer will upload the files to the publishing server. The Developer takes no responsibility should access to the publishing server be denied for whatever reason.

Schedule of Deposit:

• Over R8,000.00: 50%;
• R6,000.00 to R7,999.00: 60%;
• R4,000.00 to R5,999.00: 70%;
• Under R4,000.00: 80%.

Once the website has been developed and completed, the balance of fees is due in accordance with our payment terms. There are no exceptions. If the Client decides that he no longer wants the site, as he has commissioned the work and paid a deposit he is still obliged to pay for work that has been done.

The Developer reserves the right to disable and or remove any website for which payments are in arrears.

Cost estimates that have been given by the Developer in the quotation are estimates only. Actual time spent will be used as the basis for billing.

All invoices rendered by the Developer are payable on presentation. Non payment will result in legal action being taken if necessary. Once full payment is received for a website, it is assumed that the project has been completed to the Client's complete satisfaction.

If the Client fails to pay any invoice by due date, then without prejudice to the Developer's rights under this Agreement, the Client shall also pay the Developer interest on the outstanding balance at a rate of 2% per month.

All prices are exempt of VAT.

The Client may cancel a project in writing by email or postal mail only if the Developer confirms work has not been started on the project. If the Developer has begun or completed the work and the Client no longer requires the website but has agreed to the work, he is still obliged to pay the Developer for the work that has been carried out.

All invoices are submitted by email except where required otherwise by regulations or agreed at the Developer's discretion.

The website, graphics and any programming code remain the property of the Developer until all outstanding accounts are paid in full.

Privacy

The Developer will not share or sell any of the Client's details with third party companies, without your express permission and will only email you or contact you about work related matters.

10 Liability

The Developer will use his best offices to create an effective website for the Client. However, he cannot be held responsible in any way for any consequences related to the website.

The Developer accepts commissions on the understanding that there is a dynamic relationship with the Client. The Client's responsibility is to provide content for the website timeously. Should the complete content not be forthcoming thirty days after the commencement of the website design, the Developer reserves the right to add penalty charges to the remaining balance at its discretion or terminate the Agreement.

Whilst every endeavour is made to ensure that the website and any scripts or programs are free of errors, the Developer cannot accept responsibility for any losses incurred due to malfunction of the website or any part of it.

11 Copyright

The Developer cannot take responsibility for any copyright infringements caused by materials submitted by the Client. The Developer reserves the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.

12 Non Performance

The Developer will not be liable to the Client or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions not under its reasonable control cause the non-performance or delay and the Developer gives the Client prompt notice thereof. In no event will this affect the Client's obligation to make payments to the Developer under this Agreement except in respect of Services that are unable to be performed by the Developer, until they can be performed.

13 Warranty

The Developer provides the website and the contents thereof on an "as is" basis and makes no warranties with regard to the site and it's contents, or fitness of services offered for a particular purpose. The Developer cannot guarantee the functionality of his web site or that it will be uninterrupted or error free, nor does he warrant that the contents are current, accurate or complete.

The Developer endeavours to provide a web site within given delivery timescales to the best of his ability. However, the Client agrees that the Developer is not liable for any claims, losses, costs incurred or compensation due to any failure to carry out services within a given delivery timescale.

The Client agrees the Developer is not liable for absence of service as a result of illness or holiday.

Whilst every care is taken to ensure the website is problem free and accurate, the ultimate responsibility lies with the Client in ensuring that it is functioning correctly before use.

The Client agrees that the Developer is not liable for any failure to carry out services for reasons beyond it's 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.

The Developer 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.

Whilst every effort is made to ensure files are error free, the Developer cannot guarantee that the display or functionality of the web design or the web site will be uninterrupted or error free. The Developer will correct any error in his code within thirty days of sign off free of charge providing the major browsers and domain setup have remained unchanged. If there have been changes to the major browsers and domain setup the Developer reserves the right to quote for such corrections.

Should the Client go into compulsory or involuntary liquidation or cannot pay his debts in the normal course of business, the Developer reserves the right to cancel forthwith any projects and invoice the Client for any work completed.

The Developer has no liability to the Client or any third parties for any damages, including but not limited to, claims, losses, 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 web site, even if the Developer has been advised of the possibility of such damages.

The Developer will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the Client or any of the Clients appointed agents.

The Developer will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.

There are sometimes laws and taxes which affect Internet ecommerce. The Client agrees that it is his responsibility to comply with such laws and will hold harmless, protect, and defend the Developer and his subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's exercise of Internet ecommerce.

The Developer 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 legislation, software releases and web standards. The Developer reserves the right to quote for any updates as separate work. The Client agrees the Developer is not liable for any failure to inform or implement these updates to their site. The Client agrees that it shall defend, indemnify, save and hold the Developer harmless from any and all demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.

14 Indemnification

The Client agrees to use all the Developer's services and facilities at his own risk and agree to defend, indemnify, save and hold the Developer harmless from any and all demands, liabilities, costs, losses and claims including but not limited to attorney's fees against the Developer or it's associates that may arise directly or indirectly from any service provided or agreed to be provided or any product or service sold by the Client or his third parties. The Client agrees this indemnification extends to all aspects of the project, including but not limited to web site content and choice of domain name.

The Client also agrees to defend, indemnify and hold harmless the Developer against any liabilities arising out of injury to person or property caused by any service provided or agreed to be provided or any product or service sold by the Client or third parties, including but not limited to, infringement of copyright, infringement of proprietary rights, misinformation, delivery of defective products or services which is harmful to any person, business, company or organisation.

15 Relaxation

A failure, relaxation or indulgence by either party in exercising any right, power or privilege conferred on the party by this agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.

16 Non Disclosure

The Developer 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 the Developer to another party.

17 Interpretation

The Developer 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. The Developer shall be the sole arbiter in deciding what constitutes a breach. In such case the Client is liable for payment for work done.

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.

Any and all matters pursuant to this agreement are governed by South African Law and are under exclusive jurisdiction of the South African Courts.

The Developer 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 Developer's web site at http://www.warthog.co.za/terms.php with a date of last update.

By accepting a quotation or making a payment of invoice to use the services supplied, the Client acknowledges to have read, understand, and accept the Terms and Conditions of this Agreement, and agrees to be legally bound by them.

18 Non-Exclusion

The Client acknowledges that the Developer is providing services to the Client on a non-exclusive basis and that the Developer may provide services of the same or similar nature as the Services to any other party.

19 Termination of Agreement

This Agreement may be terminated by either party by notice in writing should the other party take any corporate action or legal proceedings are started and not withdrawn within twenty one days for its winding up, dissolution or liquidation.

On termination of this Agreement, howsoever occurring, all moneys unpaid by the Client pursuant to this Agreement will immediately become due and payable. If such monies remain unpaid for a period of thirty days then (without prejudice to any other rights that the Developer may have for breach of this Agreement or otherwise) the Developer will be entitled to retake possession of and disable any software provided pursuant to this Agreement.

The Client's obligations (including any obligations to indemnify) and the Developer's obligations under confidentiality shall survive the termination of this Agreement for whatever reason.

20 Schedule of Costs

1.  Research for the purposes of adding content to the website

R250.00 per hour or part thereof

2.  Hourly costs for attending meetings

R250.00 plus transport costs

March 2011