Terms And Conditions PDF Print E-mail

This Agreement contains the terms and conditions of the Agreement between You and Extended Designs CC Number 2004/057257/23.

In this Agreement, "we", "us", and “our” means Extended Designs, and "you" and “yours” means the client making use of services provided by Extended Designs.  The "Services" means Extended Designs Internet access services, domain name registration, hosting services, and other products and services that Extended Designs may introduce from time to time in the future.  The “Pricelist” means the currently applicable Customer Pricelist supplied by Extended Designs to the Client.  “Extended Designs Website” or “Our Site” means the website located at http://www.xdesigns.co.za.  “Recurring Services” means subscription type Services – such as Internet access - that are automatically assumed to be continuous until a notice to cancel has been received in advance.  All services presented in the Pricelist are considered Recurring Services, unless specifically stated otherwise within the pricelist.  Recurring Services do not include once-off services, such as website design, software development or setup fees.


1. PRICING OF SERVICES

1.1 Extended Designs retains the exclusive right to determine the wholesale prices for Services supplied to the Client.  Extended Designs will supply the Client with a current Pricelist – in electronic or printed form - in a timeous manner upon request by the Client.  This Pricelist shall include currently applicable pricing for all Services available for resale by the Client. 

1.2 Services and price changes.  Extended Designs, at its sole discretion, may change the Services available and/or the pricing for Services from time to time.  Extended Designs will supply the Client with thirty (30) days advanced notice of any such changes.

1.3 Retail prices.  Client retains the exclusive right and responsibility for establishing the retail prices at which the Services shall be resold to the Client’s customers.  Extended Designs shall in no way attempt to influence the retail pricing structure offered by the Client to its customers.


2. ORDERING SERVICES

2.1 Placing orders.  Client must place orders for Services by making application for each Service or combination of Services in writing to the Extended Designs Accounts Department. 

2.2 Order format.  The application for Services may be in electronic or printed form, or any form that is approved by Extended Designs and at Extended Designs sole discretion.

2.3 Orders placed via website.  At some time in the future Extended Designs may make a Client Service application available via a website designed specifically for this purpose.

2.4 Orders are binding.  Client agrees that all forms of application accepted by Extended Designs for new Services shall be binding and shall commit the Client to that Service for the relevant period.


3. PAYMENT FOR SERVICES

3.1 Billing is “in advance”.  Services are charged for in advance of the billing period for which they apply. 

3.2 Invoicing.  Extended Designs shall supply the Client with an itemised invoice – electronic or printed – on or about the 14th business day of each calendar month for all currently active Services.  The Client must make payment in full for all Services within ten (10) days of the date the invoice is issued. 

3.3 Prorated charges.  In the case where a Service commences on a date other than the 14th day of the billing cycle, a prorated amount based on the fractional portion of the billing cycle shall be added to the invoice, in addition to the full amount due in advance of the next billing cycle for the Service.

3.4 Supplemental billing.  From time to time non-recurring Services, such as website design, may be billed for separately to, and on a different date than, the regular recurring Service invoice.  The Client must make payment in full for non-recurring Services within ten (10) days of the date the invoice is issued.

3.5 Failure to pay timeously.  Failure to make payment in whole or in part for any invoice issued by Extended Designs within the timeframe specified herein shall constitute default under this agreement, and may result in one or more of the following actions taken by Extended Designs, including, but not limited to: (a) suspension of all services offered to client until such time as payment is made in full; (b) termination of all client Services; (c) a penalty in the form of interest amounting to twenty-four percent (24%) per annum, or the maximum interest for overdue payments allowed by law, for the period that payment is overdue; or (e) any legal steps deemed necessary at Extended Designs sole discretion to collect outstanding amounts owed by the client, including costs incurred specifically for the purpose of collection. 


4. CANCELLATION OF SERVICES

4.1 Notice of cancellation.  Client must supply Extended Designs with thirty (30) days advanced notice in writing of Client’s intention to cancel Recurring services. 

4.2 Prorated end dates.  When the end date of a cancelled Service falls on a date other than the 14th day of the billing cycle, a prorated amount based on the fractional portion of the billing cycle shall be charged for the ending period.


5. TERM OF AGREEMENT

5.1 Term.  This Agreement shall continue indefinitely unless terminated by either party in accordance with the terms contained herein.

5.2 Termination.  Either party may terminate this Agreement with thirty (30) day’s written notice at any time. 

5.3 Summary termination for default.  If the Client is in default under this Agreement (including non-payment), then Extended Designs may immediately terminate the Agreement without prior notice to the Client.

 

6. ACCEPTABLE USE OF SERVICES

6.1 Lawful use.  The Client will use the Services provided by Extended Designs in a manner completely consistent with all applicable laws and regulations governing the use of the Services.

6.2 Acceptable use policy.  The Client will use the Services in accordance with Extended Designs Acceptable Use Policy.  The most current version of Extended Designs Acceptable Use Policy is available on the Extended Designs website and will be made available to the Client upon request.


7. IP ADDRESSES

Extended Designs maintains control and ownership of any and all IP numbers and addresses that may be assigned to the Client or the Client’s customers.  Extended Designs reserves the right to change or remove any and all IP numbers and addresses at any time, at its sole discretion.


8. CONFIDENTIALITY

8.1 Definition.  "Confidential Information" means: (a) any non-public technical or business information of a party, including without limitation any information relating to a party’s techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information; (b) any other information of a party that is disclosed in writing and is conspicuously designated as "Confidential" at the time of disclosure or that is disclosed orally, is identified as "Confidential" at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days of any such disclosure; and (c) the specific terms and conditions of this Agreement.

8.2 Exclusions.  "Confidential Information" will not include any information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) the receiving party can demonstrate by written evidence was rightfully in the receiving party’s possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (d) the receiving party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure.

8.3 Obligations.  Each party will at all times, both during the term of this Agreement and for a period of three (3) years after its termination, maintain in confidence all Confidential Information of the other party and will not use such Confidential Information except as expressly permitted herein.  Each party will take all reasonable measures to maintain the confidentiality of such Confidential Information, but not less than the measures it uses for its confidential information of similar importance.  Each party will limit the disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement; provided that all such employees and contractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein.  The receiving party shall immediately return to the disclosing party all written Confidential Information of the disclosing party and any and all records, notes and other written, printed or tangible materials pertaining to such Confidential Information upon receipt of a written request from the disclosing party or within thirty (30) days after the termination or expiration of this Agreement.


9. NO GUARANTEE OF PRIVACY

Extended Designs is not responsible, nor to be held liable, for protection or the guarantee of privacy of electronic mail or other information transferred through the Internet, Extended Designs’s network, or any other network its Client or the Client’s customers may utilise through Extended Designs’s Services.


10.  RELATIONSHIP OF THE PARTIES

The Parties intend that an independent contractor relationship will be created by this Agreement, and that no partnership, joint venture or employee/employer relationship is intended.


11.  WAIVER

The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.


12.  GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa.  The parties agree that this Agreement is executed and performed in Johannesburg, Gauteng, South Africa.


13. SEVERABILITY

If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.


14.  FORCE MAJEURE

Neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, terrorism, or fuel crises, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance.


15.  ENTIRE AGREEMENT AND AMENDMENT

This Agreement, including all annexures and exhibits hereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter. This Agreement may be amended or modified only by a writing that is signed by duly authorised representatives of both parties.


16.  NOTICES

All notices, approvals, consents and other communications required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and in each instance will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section.  In addition to the methods listed above, electronic mail (email) may be used by Extended Designs for the notice and delivery of Pricelists, updates to policy documents and service agreements, and changes to Services.  In addition to the methods listed above, orders placed for Services or cancellation of Services by the Client may be made via email following the form set forth by the Extended Designs Accounts Department and through a website designed for this purpose (if/when available).


17.  ASSIGNMENT

Neither party may assign this Agreement, in whole or in part, including without limitation by operation of law, without the other party’s prior written consent.  Any attempt to assign this Agreement without such consent will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.


18.  ATTORNEYS’ FEES

If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys' fees and costs that the prevailing party incurred prior to commencing the proceeding.


19. INDEMNIFICATION

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF THIS AGREEMENT, PRODUCTS OR SERVICES, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.  EXCEPT FOR A BREACH OF SECTION 8 (CONFIDENTIALITY), UNDER NO CIRCUMSTANCES SHALL EXTENDED DESIGNS’S LIABILITY TO CLIENT OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE PRODUCTS OR SERVICES EXCEED FEES PAID BY CLIENT TO EXTENDED DESIGNS UNDER THIS AGREEMENT WITHIN THE MOST RECENT BILLING CYCLE FOR SAID PRODUCTS OR SERVICES PRIOR TO THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON SUCH CONTRACT, WARRANTY, TORT OR OTHERWISE.

20.  DISCLAIMER OF WARRANTIES

EXTENDED DESIGNS'S SERVICES ARE PROVIDED ON AN 'AS IS, AS AVAILABLE' BASIS. EXTENDED DESIGNS SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL EXTENDED DESIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF EXTENDED DESIGNS HAS BEEN ADVISED BY CLIENT OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.  IF EXTENDED DESIGNS'S SERVICE TO CLIENT IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, EXTENDED DESIGNS SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE.