Enterprise Managed Service / Web Design and Development Services

The agreement for Enterprise Managed Service / Web Design and Development services is between TouchBasePro (Pty) Ltd and the aforesaid Client (Client), for the performance of the services described in the proposal sent to Client. The parties therefore agree as follows:

1. DEFINITIONS

As used herein and throughout this Agreement:

  • 1.1 Design Tools means all design tools developed and/or utilised by the Company in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as web-site design, architecture, layout, navigational and functional elements

  • 1.2 Final Art means all creative content developed or created by the Company, or commissioned by the Company, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to the Customer Content, and the Company’s selection, arrangement and coordination of such elements together with the Customer Content and/or Third Party Materials.

  • 1.3 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the Company and which may or may not be shown and or delivered to the Customer for consideration but do not form part of the Final Art.

  • 1.4 Project means the scope and purpose of the Customer’s identified usage of the work product as described in the Proposal.

  • 1.5 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

2. CHANGES

  • 2.1 General Changes Unless otherwise provided in the Proposal, and except as otherwise provided for herein, the Customer shall pay additional charges for changes requested by the Customer which are outside the scope of the Services on a time and materials basis, at the Company’s standard hourly rate per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. The Company may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

  • 2.2 Substantive Changes If the Customer requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Services, and or the value or scope of the Services, the Company shall be entitled to submit a new and separate Proposal to the Customer for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by the Company.

3. DELIVERY OF THE SERVICES

  • 3.1 Timing. The Company will prioritise performance of the Services as may be necessary or as identified in the Proposal and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Customer agrees to review the Services within 5 working days such reviews and to promptly either, (i) approve the Services in writing or (ii) provide written comments and/or corrections sufficient to identify the Customer’s concerns, objections or corrections to the Company. The Company shall be entitled to request written clarification of any concern, objection or correction. The Customer acknowledges and agrees that the Company’s ability to meet any and all schedules is entirely dependent upon the Customer’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the Customer’s performance or Changes in the Services requested by the Customer may delay delivery of the Services. Any such delay caused by the Customer shall not constitute a breach of any term, condition of the Company’s obligations under this Agreement.

  • 3.2 Delays and Project Reactivation. The Company reserves the right to consider any Project that has not received Customer input, including but not limited to the timely supply of reviews, written approvals, Customer Content, information, photography, writings and other creative defined in the Proposal, as inactive after a 30 day period. A reactivation fee of 25% of the initial invoiced amount of the project will be charged to recommence work on the Project. The Company reserves the right to waive Reactivation Fees based solely on its discretion. The Customer acknowledges and agrees that the Company’s ability to meet any and all schedules is entirely dependent upon the Coatomer’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the Customer’s performance or Changes in the Services requested by the Customer may delay delivery of the Services. The Company acknowledges and agrees that the Customer may pause the Project by notifying the Company, in writing, for a period of 120 days, at any point in the Project, prior to the Project being flagged as inactive. The Customer acknowledges and agrees that a Project can only be paused if all outstanding invoices have been paid.

  • 3.3 Testing and Acceptance. The Company will exercise commercially reasonable efforts to test Services requiring testing and to make all necessary corrections prior to providing the Services to the Customer. The Customer shall, within 5 business days of receipt of each Deliverable, shall notify the Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments that the Customer wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Customer, the Deliverable shall be deemed accepted.

4. CLIENT RESPONSIBILITIES

  • 4.1 The Customer acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

  • 4.1.1 coordination of any decision-making with parties other than the Company;

  • 4.1.2 provision of Customer Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and

  • 4.1.3 final proofreading and in the event that the Customer has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, the Customer shall incur the cost of correcting such errors.

5. ACCREDITATION/PROMOTIONS

  • 5.1 All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in the Company’s name in the form, size and location as incorporated by the Company in the Deliverables.

  • 5.2 The Company retains the right to reproduce, publish and display the Deliverables in the Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

  • 5.3 Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the Services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

6. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

  • 6.1 All TouchBasePro Tools are and shall remain the exclusive property of the Company hereby grants to the Customer a nonexclusive, non-transferable (other than the right to sublicense such uses to the Customer’s web hosting or internet service providers), perpetual, worldwide license to use TouchBasePro Tools solely to the extent necessary with the Final Deliverables for the Project.

  • 6.2 The Customer may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any TouchBasePro Tools comprising any software or technology of the Company.

7. RIGHTS TO FINAL ART

  • 7.1 The Company hereby grants to the Customer the exclusive, perpetual and worldwide right and license to use, reproduce, adapt, modify and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the terms and conditions of this Agreement.

  • 7.2 The Customer’s use of the Final Art shall be limited to the usage rights granted herein for the Project only. Use of the Final Art, Deliverables or any derivative works thereof by the Customer at any other time or location, or for another project or outside the scope of the rights granted herein require an additional fee and the Company shall be entitled to further compensation equal to Extra Compensation of the original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, the Company shall be entitled to pursue all remedies under law and equity.

8. INTERACTIVE-SPECIFIC TERMS AND CONDITIONS

  • 8.1 Warranty Period.

    • 8.1.1 “Support Services” means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies, but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal.

    • 8.1.2 During the first Warranty 6 months following expiration of this Agreement (“Warranty Period”), if any, the Company shall provide up to Warranty 10 hours of Support Services at no additional cost to the Customer.

    • 8.1.3 Additional time shall be billed at the Company’s regular hourly rate, then in effect upon the date of the request for additional support. The Warranty Period begins once the Services Rendered (i.e. The Deliverables) are publicly accessible.

  • 8.2 Maintenance Period.

    • 8.2.1 Upon expiration of the Warranty Period and at the Customer’s option, the Company can provide Support Services for a Monthly Maintenance fee, which will be quoted on and agreed to separately.

    • 8.2.2 This will be a recurring monthly charge and will run on a month-to-month basis.

    • 8.2.3 If no Monthly Maintenance fee is agreed to, after the Warranty Period has expired the Company can provide Support Services at the standard hourly rate.

  • 8.3 During the Maintenance Period, the Customer may request that the Company develop enhancements to the Deliverables, and the Company shall exercise commercially reasonable efforts to prioritise the Company’s resources to create such enhancements.

  • 8.4 The parties understand that pre-existing obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at the Company’s then in effect price for such services.

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