REALM DIGITAL TERMS AND CONDITIONS OF SERVICES
- APPOINTMENT AND ACCEPTANCE
1.1 Upon acceptance of a quotation the Client appoints Realm Digital (”Realm Digital”) on an exclusive basis to render the services as contained in the quotation (“the Services”) in the Territory and Realm Digital accepts the appointment.
1.2 By accepting Realm Digital’s quotation and throughout the Client’s use of Realm Digital’s services, the Client agrees to be bound by these terms and conditions. If the Client does not agree to be bound by these terms and conditions, it must immediately stop using any of Realm Digital’s services.
1.3 The Client acknowledges that no warranties or representations were made by Realm Digital, its employees or any of its other duly authorised representatives regarding its services or any of the features or qualities of such services on or before accepting these terms and conditions.
- INTERPRETATION AND DEFINITIONS
For the purposes of these terms and conditions:
2.1 “Client Material” means any intellectual property, information or documentation provided or made available by the Client to Realm Digital;
2.2 “Confidential Information’’ means any proprietary and non-public information belonging to a party which has been or may be disclosed to or obtained by the other party before or during their working relationship, whether such information is in writing or was obtained pursuant to discussions, and includes any intellectual property; underlying works; business, marketing or financial data; know-how and trade secrets; strategies; designs; plans; specifications; reports; customer lists; price lists; studies or findings; computer software and code; databases; inventions; ideas; employee information; information about business partners, suppliers and service providers; or any material which contains or is generated from any such confidential information.
2.3 “Consequential loss” means, in relation to a breach of these terms and conditions, any indirect loss or special damages resulting from such breach, including but not limited to loss of data, loss of profit, loss of revenue, loss of contractual opportunities, or loss of goodwill, regardless of whether or not the party committing the breach knew or ought to have known that such loss or damages would be likely to be suffered as a result of their breach;
2.4 “End Product” means an end product as defined and agreed upon between the parties, to be created and produced by Realm Digital in the media chosen by the Client as part of or pursuant to the services provided by Realm Digital;
2.5 “Intellectual Property” means rights to or in any patents, designs, copyrights, database rights, trade secrets, know-how, confidential information, trademarks (whether registered or unregistered), company names, trade names, domain names; or any other rights, licences, or pending applications for the registration of any such rights anywhere in the world, which are owned and/or held by a party;
2.6 ‘‘Pre-existing intellectual property’’ means any intellectual property which Realm Digital owns or otherwise has rights in and which may be used to provide the Services and/or produce an End Product;
2.7 “Prime Rate” means the rate of interest charged by First National Bank on overdraft facilities offered to its private clients;
2.8 “Services” means the services as described in the quotation;
2.9 ‘‘Underlying Work’’ means any component, part or element included in or used to produce the End Product, which includes but is not limited to any drawing, code, module, composite, character, dialogue, effect, function, hint, icon, image, layout, overlay, palette, rough, scene, script, sequence, sound, storyboard, symbol, template, underlay, vector or working, film, concept, treatment, shot list, footage, audio recording, editing file, project file or colour grade.
3.1 Realm Digital will perform the Services (as described in the quotation and accepted by the Client) on the terms and conditions set out herein, read with the quotation.
3.2 Realm Digital shall not be obliged to perform any services on behalf of the Client, which are not specifically included as part of the Services, nor will the Client be obligated to appoint Realm Digital to render any services not yet included in the Services.
3.3 The Client must make sure that all Client Material given to Realm Digital as part of its brief or otherwise is correct and accurate.
3.4 Realm Digital may sub-contract or delegate its obligations to a suitable subcontractor, provided that Realm Digital will remain liable for the performance of such subcontractor. Realm Digital shall disclose the use of all subcontractors to the Client and, if so required by the Client, the third party will sign a non-disclosure agreement with the Client to ensure confidentiality.
- FEES AND PAYMENT
4.1 All quotations issued by Realm Digital will be valid for 30 days.
4.2 After a quotation has been signed and accepted by the Client, the Services will be rendered against payment of the fee set out in the quotation (“the Fee”). Any additional work or services required by the Client will be quoted and charged for separately.
4.3 A 50% deposit of the Fee is required before work may commence. The remaining 50% of the Fee is required before the project may be handed over to the Client.
4.4 In the case of a retainer arrangement the parties will agree to a retainer amount for each calendar month to be payable monthly in advance. Realm Digital will then deduct the hourly rates of its resources as they render services, according to the resource rate set out in a fees table to be agreed upon.
4.5 Realm Digital warrants the Client that it will have resources available to undertake work to the value of the retainer amount as set out above every calendar month. Any work to be performed after the retainer amount has been exhausted will be undertaken as and when resources become available and against payment of additional fees to be agreed upon in each instance.
4.6 Retainer budgets are not carried over to the next calendar month.
4.7 All fees quoted by Realm Digital will be exclusive of Value Added Tax (VAT) and/or any third party disbursements or expenses and stock images costs incurred by Realm Digital on the Client, all of which will be paid by the Client in addition to the Fee, behalf unless otherwise specified.
4.8 All amounts due to Realm Digital must be paid by the Client within 5 days of being invoiced.
4.9 All payments must be made by electronic fund transfer (EFT) into Realm Digital’s designated bank account and will only be deemed to have been received once it reflects in the account.
4.10 Any image that is signed off by a client for use in their project becomes the sole liability of the client.
4.11 Realm Digital will advise where the image is sourced from, but once the client signs off on the design, the image and its licence is transferred to the client.
4.12 If the Client fails and/or refuses to pay any amount which is due and payable to Realm Digital on due date, then Realm Digital will be entitled to:
4.12.1 Immediately suspend or stop providing any further services to the Client;
4.12.2 Charge interest on the overdue amount at the Prime Rate from the date that payment was due to the date payment is finally made, both days included. Such interest will be calculated daily and compounded monthly during the period that payment remains due;
4.12.3 Institute legal action to recover the outstanding amounts. The Client will be liability for legal fees on the attorney and own client scale as will be applicable in the High Court
4.13 Any changes to the pricing previously agreed to by the parties which is caused by a delay which is outside the control of Realm Digital will be raised with the Client, and agreed upon by both parties in advance of any work continuing. Once verbally agreed by Client, Realm Digital will raise a proposal for the additional costs and this will be signed off by Client for the additional work to commence.
- INTELLECTUAL PROPERTY OWNERSHIP
5.1 All Intellectual Property which is owned by Realm Digital or in which Realm Digital has rights, including any underlying works, will remain the sole property of Realm Digital and no rights or licences to use such pre-existing Intellectual Property will be conferred on the Client unless expressly agreed in writing.
5.2 All Intellectual Property in the Client Materials which is owned by the Client or in which the Client has rights, will remain the sole property of the Client. The Client hereby grants Realm Digital a non-exclusive, worldwide, royalty-free licence to use, copy or adapt the Client Materials for the purposes of providing the Services or delivering an End Product to the Client.
5.3 All Intellectual Property rights subsisting in and to the End Product(s) will, upon payment in full for such End Product, be automatically assigned by Realm Digital to the Client. To the extent that such rights are not automatically assigned to the Client, Realm Digital undertakes to do all things and execute all documents necessary to assign such rights to the Client.
5.4 To the extent that any pre-existing Intellectual Property is embedded in the End Product(s), Realm Digital hereby grants the Client a worldwide, paid-up, non-exclusive, transferable licence to use such pre-existing Intellectual Property strictly for use as an indivisible part of the End Product(s). For the avoidance of doubt, such licence does not extend to the right to make derivative works of the pre-existing Intellectual Property, as distinct from the End Product(s) of which it may form a part.
5.5 Realm Digital will not retain or deny access to any Intellectual Property which is owned by the Client, and will on written demand deliver such Intellectual Property to the Client, or make available all account details reasonably necessary for the Client to access such Intellectual Property.
5.6 Both parties warrant that no aspect of any Intellectual Property created, licenced or provided by either of them in connection with any services, End Products, underlying works, or Client Materials under this agreement will infringe any intellectual property rights or other proprietary rights of any third party. Each party indemnifies the other, at its own cost, against any costs, damages and attorney fees finally awarded in any legal proceeding arising from any claim for the infringement of any third party intellectual property rights, provided that the indemnified party notifies the indemnifying party of such claim within 10 (ten) days of obtaining knowledge of it.
6.1 No party will ever be liable, whether in contract, delict or otherwise, for any consequential loss arising from any breach of these terms and conditions.
6.2 Realm Digital’s total liability for any direct damages or loss, whether in contract, delict or otherwise, arising from the provision of any services or the delivery of any End Product to the Client, will never exceed, in aggregate, the total amount of fees payable to Realm Digital by the Client for such services or End Product.
6.3 The Client agrees to allow Realm Digital to display a Realm Digital logo in the design footer with a backlink to the Realm Digital website.
- PENALTIES AND DAMAGES
7.1 In the case of a fixed-cost engagement Realm Digital reserves the right to monitor the scope of the project and charge for design and development hours should the initial allocated project time be exceeded.
7.2 Changes to the brief, or fluctuations in scope, could result in a revised cost estimate and/or delays.
7.3 Should a project for any reason whatsoever come to an end or be put on hold indefinitely, all payments made are non-refundable to cover Realm Digital’s expenses.
7.4 Should the client’s inaction hold up the project, the client will be billed 5% of the total project fee for every 15 working days that the project is delayed.
7.5 Should requested information, which usually takes 1 to 5 days, not be provided for a period of 2 months, the project will terminate and all payments will be kept to cover expenses incurred.
7.6 In the case of a fixed-cost engagement, should a client wish to cancel a project, a rejection fee of 50% of the remaining project cost will be charged.
7.7 Realm Digital will not be liable for any loss or inconvenience suffered by the Client as a result of any delay in providing services where such delay is caused by:
7.7.1 the Client not providing the Client Material required by Realm Digital timeously or at all; or
7.7.2 the Client changing its brief or any instructions and/or decisions previously communicated to Realm Digital; or
7.7.3 the client failing to pay any amount owing to Realm Digital or otherwise committing any breach of its other obligations; or
7.7.4 the failure of a contractor nominated by the Client to deliver any service, good or licence required for the performance of Realm Digital’s services.
- EXTERNAL SERVICE PROVIDERS
8.1 Realm Digital’s core service is the development of software applications or websites. Realm Digital recommends the services of various external, non-related service providers to provide additional and complimentary services directly to the Client, especially the hosting of the Client’s website on such third party’s hosting platforms.
8.2 Realm Digital is not responsible and cannot be held responsible for the services provided, or the failure to provide the required services, by external service providers to the Client, especially potential data breaches.
8.3 Although Realm Digital may have introduced external service providers, and especially where Realm Digital did not introduce a service provider, the Client retains full risk and responsibility to establish the credentials and reliability of such service provider(s).
8.4 The Client shall be responsible to conduct its own due diligence in order to ensure the sufficiency of data protection and other services offered by third party service providers.
8.5 The Client shall be entitled to appoint an alternative service provider, at its discretion, should it not accept the service provider introduced by Realm Digital.
8.6 The Client shall have no claim against Realm Digital, its directors, employees or any person related to it, for any direct or indirect loss, direct or indirect damages, claims instituted against it as a result of a breach of any legal provision arising out of the services provided, or the failure to provide the required services, by an external service provider.
- GENERAL PROVISIONS
9.1 The agreement constituted by these terms and conditions is the entire agreement between the parties.
9.2 No amendment or consensual cancellation of these terms and conditions and no settlement of any disputes, extension of time, waiver or relaxation or suspension of any of these terms and conditions will be binding unless recorded in writing and signed by both parties.
9.3 If any term or condition contained herein becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, the legality, validity or enforceability of the remaining terms and conditions will be affected or impaired.
9.4 These terms and conditions are governed by the laws of the Republic of South Africa. Both parties consent and submit to the jurisdiction of any Magistrates Court having jurisdiction over their person for the purposes of any legal proceedings arising from or in connection with these terms and conditions.