Terms & Conditions
1.1 The Customers attention is particularly drawn to clause 9 that is entitled Warranty and Limitation of Liability.
1.2 In these Terms the following words shall have the following meanings:
Lunanovix reserves the right to charge the Customer Additional Charges if the work continues beyond that envisaged in the Contract. Such Additional Charges will be set out on request if not included in the Contract.
Means the icons, text, branding, graphics and other material created by Lunanovix under these Terms.
Intellectual Property Rights
Patents, rights to inventions, copyright and related rights, trademarks and business names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, right to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and right to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
The agreement between the Customer and Lunanovix to deliver the Goods and/or perform the Services for the Customer as set out in the Estimate or Scope of Work.
The person, firm or company who instructs Lunanovix to deliver the Goods and/or perform the Services.
Has the meaning set out in section 1(1) of the Data Protection Act 1998 (and any subsequent data protection legislation).
A document setting out a brief description of the Goods to be delivered and/or the Services to be performed together with a price to be paid by the Customer. Where possible the Estimate will also give a date for delivery of the Goods and/or performance of the Services. The Estimate is not likely to define the Goods and/or Services in their entirety and may evolve during the relationship between the Customer and Lunanovix.
Any goods agreed in the Contract to be delivered to the Customer by Lunanovix (including any part or parts of them).
Means all material provided by the Customer for Lunanovix to use in the delivery of the Goods or the performance of the Services.
Has the meaning set out in section 1(1) of the Data Protection Act 1998 (and any subsequent data protection legislation) and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which Lunanovix is providing services under the Contract.
A document setting out revisions to the Contract and agreed by both parties in writing (including in email correspondence).
The Scope of Work
The Scope of Work is a document setting out the task to be performed on behalf of the Customer, the Price, a timeframe for delivery, and other bespoke requests by the Customer. A Scope of Work will be provided by Lunanovix at either Lunanovix or the Customer’s request. Where a Scope of Work has been prepared, it will supercede any Estimate given by Lunanovix.
Any Services agreed in the Contract to be delivered to the Customer by Lunanovix (including any part or parts of them). The nature of the services provided by Lunanovix may be varied throughout Lunanovix’s instruction. Any initial contract cannot therefore be construed as a specification to the final functionality of Lunanovix’s delivered Goods and/or Services.
Means the software, applications, database structures, content management systems, third-party applications, software engineering, functionality and other generic components used in the delivery of the Goods or performance of the Services.
Lunanovix Pty Ltd (2019/214796/07) whose registered office is at Eulophis Corner, 38 Genl Van Reyneveld St, Persequor, Pretoria, 0020, South Africa
2. Application of Terms
2.1 These Terms are the only terms upon with Lunanovix is prepared to deal with the Customer and they shall govern the Contract to the entire exclusion of all other terms or conditions (subject to Clause 2.2).
2.2 In accordance with Clause 19 no terms or conditions endorsed upon, delivered with or referred to elsewhere in any written or verbal communications between Lunanovix and the Customer will form part of the contract and the Customer waives any right to which it otherwise might have to rely on such terms or conditions.
2.3 In the event of a conflict between any express written terms of the Contract and these Terms, the written terms of the Contract shall prevail.
3.1 Lunanovix shall deliver, and the Customer shall accept, the Goods and/or Services in accordance with and subject to these Terms;
3.2 The Goods and Services are personal to the Customer and all written reports or other communications shall only be for the benefit of the Customer and not passed to any third party (save for any nominated sub-contractors in accordance with Clause 10).
4. Customer’s Obligations
4.1 The Customer shall do all such things that the Contract provides are to be done by the Customer or which Lunanovix shall reasonably require in order to assist Lunanovix in delivering the Goods and/or performing the Services.
4.2 The Customer shall obtain and maintain all necessary licences and consents and comply with all relevant legislation (including but not limited to Data Protection Legislation). Lunanovix will not be responsible for any failure by the Customer to keep such licences and consents up to date, or any failure by the Customer to comply with relevant legislation.
4.3 If Lunanovix’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“the Default”):
4.3.1 Without limiting or affecting any other right or remedy available to it, Lunanovix shall have the right to suspend performance of the Contract until the Customer remedies the Default to relieve it from the performance of any of its obligation in each case to the extent the Default prevents or delays Lunanovix’s performance of any of its obligations;
4.3.2 Lunanovix shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Lunanovix’s failure or delay to perform any of its obligations as set out in this clause 4; and
4.3.3 The Customer shall reimburse Lunanovix on written demand for any costs or losses sustained or incurred by Lunanovix arising directly or indirectly from the Default.
5.1 Lunanovix shall use reasonable endeavours to deliver the Goods and/or perform the Services by the time specified in the Contract or if no such time is agreed, then by the time as may be agreed from time to time by Lunanovix and the Customer in writing. If no time is so specified, Lunanovix shall deliver the Goods or perform the Services within a reasonable time.
5.2 If Lunanovix’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Lunanovix shall be allowed an extension of time to perform its obligations.
5.3 Lunanovix shall not be liable for the consequences of any delay in delivering the Goods or performing the Services.
6. Charges and Payment
6.1 Lunanovix shall not be liable for the consequences of any delay in delivering the Goods or performing the Services.
6.2 The price shall be the price set out in the Contract.
6.3 Lunanovix shall be entitled to charge the Additional Charges to be agreed with the Customer in advance of being incurred.
6.4 Lunanovix has the right to review all payment arrangements under its Contracts with the Customer on a monthly basis. If Lunanovix deems that the amount paid by the Customer under the Contract should be increased (“an Increased Payment”), then Lunanovix will notify the customer in writing.
6.5 If the monthly payment is increased in accordance with clause 6.4 above the Customer has the right to refuse to pay the Increased Payment. The Customer must inform Lunanovix within 14 days of being notified of the Increased Payment that it does not agree to the Increased Payment.
6.6 Lunanovix and/or the Customer have the right to terminate the Contract if an agreement cannot be reached in relation to the Increased Payment within 14 days of Lunanovix being notified by the Customer that it disputes the Increased Payment.
7. Revisions to Contracts
7.1 Either party may propose changes to the Estimate or Scope of Work of the Services and/or the Goods to be delivered but no proposed changes shall come into effect until a Revised Contract has been agreed by both parties.
7.2 If Lunanovix wishes to make a change to the Goods and/or Services it shall provide a draft Revised Contract to the Customer.
7.3 If the Customer wishes to make a change to the Goods and/or Services it shall:
7.3.1 Notify Lunanovix and provide as much details as Lunanovix reasonably requires of the proposed changes (including the timing of the proposed changes); and
7.3.2 Lunanovix shall, as soon as reasonably practicable after receiving the information at clause 7.3.1 above, provide a draft Revised Contract to the Customer.
7.4 Lunanovix may charge for the time it spends on preparing and negotiating the Revised Contract in accordance with the Additional Charges.
8.1 Each Party hereby acknowledges and agrees that information and material that it may have, and may continue to, come into contact with, either in oral, written, graphic, photographic, recorded or in any other form, including, without limitation, the Material and Documentation, may be highly confidential, and that this information and material (the “Confidential Information”) is being made available by the disclosing Party (the “Disclosing Party”) to the receiving Party (the “Recipient”) solely for the purposes of performing the Services under this Agreement and for no other purpose.
8.2 The Disclosing Party shall continue to be the exclusive owner of all Confidential Information, including, without limitation, the Material and Documentation and other information and material (including trade secrets) and Intellectual Property Rights contained therein, made available to the Recipient, under this or any other agreement, all of which are proprietary to the Disclosing Party.
8.3 Where information or material received by the Recipient is not labelled confidential, the Recipient agrees to treat it confidential, unless the Disclosing Party indicates otherwise in writing.
8.4 The Recipient agrees that its directors, officers and employees will use any Confidential Information provided by the Disclosing Party only in order to comply with its obligations under this Agreement and agrees to only disclose such information to those of its directors, officers and employees (including those of an Affiliated Company) directly concerned with the work under this Agreement. Subject to the provisions herein, the Recipient agrees that it will not disclose any Confidential Information, including, without limitation, any part of the Material or Documentation, to a third party nor use it for any other purpose either for itself or a third party.
8.5 The Recipient shall, at all times, preserve the proprietary, confidential and/or trade secret nature of the Confidential Information both during and after the term of this Agreement irrespective of the manner or method in which it is terminated.
8.6 No Confidential Information of any kind, whether in digital or any other form given to the Recipient by the Disclosing Party to fulfil its obligations under this Agreement, may be retained by the Recipient after the termination or expiration of the term of this Agreement.
8.7 Obligations of confidentiality contained in this Agreement shall not apply to any information or material that the Recipient can demonstrate was part of the public knowledge or already known to the Recipient on the date it was disclosed, or subsequent to the time of disclosure became part of the public knowledge through no fault of the Recipient, or was rightfully disclosed to the Recipient by a third party. If the Recipient becomes legally compelled to disclose any Confidential Information, it shall promptly inform the Disclosing Party of such fact in writing so as to allow the Disclosing Party to take appropriate protective actions or measures or to seek orders to protect the interests of the Disclosing Party.
8.8 If processing any personal data on the Disclosing Party’s behalf, the Recipient shall only do so in accordance with the Disclosing Party’s instructions and applicable data protection legislation and only for the purposes designated by the Disclosing Party. In addition, the Disclosing Party shall take all appropriate technical and organizational measures to prevent unauthorized or unlawful processing, unwarranted disclosure, or accidental loss, destruction of, or damage to, such data.
8.9 If, in the performance of Services, either Party collects, holds, uses, communicates or discloses any personal information related to an individual, such Party agrees to comply with applicable data protection legislation. In such event, each Party agrees to obtain specific consent from the individual concerned for the communication or disclosure of the individual’s personal information to the other Party and for the use of the individual’s personal information by the other Party.
9. Warranty and Limitation of Liability
9.1 To the maximum extent permitted by law, we and our affiliated parties shall have no liability whatsoever for your use of any content, the site, or information related to the site, and shall not be liable for any direct, indirect, special, incidental, or consequential damages (including, but not limited to, damages for loss of business, loss of profits, or litigation), (i) arising from any decision made or action taken by you in reliance upon the content or our information products, (ii) arising out of or in any way connected with the use or performance of the site or content, or with the delay or inability to use the site or content, or from the use or misuse of any information, software, products, services, related graphics, and content obtained through
9.2 Our Services and/or site, (iii) any incorrect or missing information or data, or (iv) otherwise arising out or resulting from loss of your data or information, whether based on breach of contract, breach of warranty, tort (including, but not limited to, negligence), or otherwise, even if advised of the possibility of such damages. Our maximum liability, if any, for any loss or damage relating to or arising out of your use of our Services and/or any content will not exceed the lesser of your actual damages or the charges paid by you to us for the site for a period of two months.
9.3 We are not responsible for interrupted, inaccessible or unavailable networks, servers, satellites, internet service providers, websites, or other connections, or for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone or cable transmissions, or for any technical malfunctions, failures or difficulties.
9.5 The Contract will set out the agreement between Lunanovix and the Customer for the length of warranty period and the amount of revisions in relation to the Goods delivered and/or the Services performed.
9.6 In the absence of an agreement in accordance with Clause 9.5, Lunanovix will support the Customer for 6 weeks following delivery of the Goods and/or completion of the Services in relation to unforeseen fixes that hinder functionality to the delivered Goods or performed Services.
9.7 Lunanovix shall be entitled to charge the Additional Amounts for any work over and above those set out in the Contract or clause 9.6 above.
9.8 In the absence of an agreement as to the Additional Charges, Lunanovix shall be entitled to charge a reasonable amount for the additional work carried out in relation to clause 9.6 on behalf of the Customer.
9.9 Lunanovix undertakes to use reasonable skill and care in delivering the Goods or performing the Services.
9.10 Should additions/modifications be made to the Goods and/or Services by the Customer (or any agent instructed by the Customer) errors occurring in other parts/areas of the Goods and/or Services deemed as a consequence of the modifications, Lunanovix will not be liable for any loss whatsoever or costs associated with such errors.
9.11 Apart from the foregoing, Lunanovix makes no representations and gives no warranties of any kinds with respect to the Goods or the Services and all such warranties including those in Sales of Goods legislation are excluded to the fullest extent permissible by law.
9.12 Lunanovix shall not be liable either before, during or after the delivery of the Goods or performance of the Services in any way for any losses, damages, costs or expenses, or for any loss of revenue, profit, goodwill or any consequential or indirect or special loss or damage arising out of the provision of the Goods or Services, or of any error defect therein, or of the delivery delayed delivery or non-delivery of the Goods or the performance, delayed performance or non-performance of the Services.
9.13 Any liability not excluded by clause 11.8 (or any exclusion of liability which is held by a court of competent jurisdiction to be invalid or unreasonable) shall be limited to a maximum aggregate liability of 100% of the value of the Contract. Nothing in this clause shall exclude liability for death or personal injury arising from the negligence of Lunanovix or its employees or agents (including sub-contractors), or other liability which it is prohibited from excluding at law.
10. Assignment and Subcontracting
10.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Lunanovix.
10.2 Lunanovix may assign or sub-contract the Contract or any part of it to any person, firm or company without notice to the Customer
11.Publicity and Acknowledgments
11.1 Lunanovix shall be entitled to publicise its role in delivering the Goods and/or performing the Services and shall be entitled to use the Materials and Bespoke Material for that purpose.
11.2 The Customer shall ensure that Lunanovix’s contribution in performing the Contract and Lunanovix’s copyright (if any) are properly acknowledged.
11.3 For the avoidance of doubt, Lunanovix’s statutory right to be identified as the author of any copyrightable works created in undertaking the Contract under sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof is asserted.
11.4 Lunanovix reserve the right to feature a credit link on the website to any website owned by Lunanovix to publicise who created the project, unless otherwise agreed in the Contract. Lunanovix may charge a commission to remove such credit.
12. Entire Agreement
12.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises and assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that it not set out in the Contract. Each party agree that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.3 Nothing in this clause shall exclude liability for fraud.
12.4 This agreement can be amended from time to time and its the responsibility of the different parties to familiarise themself with the new term & conditions.
13.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by pre-paid first class post or other next Business day delivery only to Lunanovix Pty Ltd whose trading address is at Eulophis Corner, 38 Genl Van Reyneveld St, Persequor, Pretoria, 0020, South Africa
13.2 This clause does not apply to the service of any proceedings or any documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
14. Law and jurisdiction
14.1 These terms and conditions shall be governed by and construed in accordance with [South African law].
14.2 Any disputes relating to these terms and conditions shall be subject to the [exclusive] OR [non-exclusive] jurisdiction of the courts of [South African].
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