Terms and Conditions

 

 

 

Standard Terms and Conditions

 

KERNEL STUDIO IS A DIVISION OF KERNEL INDUSTRIES (PTY) LTD.

THESE TERMS AND CONDITIONS ARE A CONTRACT BETWEEN YOU (“THE CLIENT”) AND KERNEL INDUSTRIES (PTY) LTD. (KERNEL INDUSTRIES) AND GOVERN THE RELATIONSHIP OF THE TWO PARTIES AS CONTAINED HEREIN.

BY CLICKING TO ACCEPT THESE TERMS AND CONDITIONS YOU (“THE CLIENT”) ACCEPT TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS WITH KERNEL INDUSTRIES.

 

Acceptance of these Terms and Conditions will warrant that the following eligibility terms are met;- you are eligible to enter into this agreement, are over 18 years old or obtained proper permissions to enter into this agreement.

 

1. REGISTRATION

You may be required by Kernel Industries to register via the registration form provided in the checkout (“Checkout”) page in order to utilize the services offered by Kernel Industries.

Upon registration, Kernel Industries may authenticate your identity via email and in certain instances require further identification. Once registered, you will gain access to your account using your chosen username and password. If password is not set, you are required to set one for security reasons. It shall be your responsibility to keep your user account credentials safe. You warrant to use your real identity for your account and to keep your account information up to date and complete. In the event you have reason to believe that the security of your account is compromised through hacking or unauthorized use, you are required to inform Kernel Industries immediately. Failure to notify Kernel industries timeously may result in liability (if any) on your part that you may suffer. If Kernel Industries has reason to believe that your account is compromised, the account may be suspended pending an investigation and resolution.

Kernel industries will not share your Information with any third parties.

 

 

1. DEFINITIONS

As used herein and throughout this Agreement:

 

• “Kernel Industries”, “Kernel Studio”, ”us”, “we”, “our” are references to either Kernel Industries (Proprietary) Limited or any other entity/party which Kernel Industries (Proprietary) Limited may cede, delegate or assign all or any of our rights, interests or obligations to.
• “Agreement” means the entire content of this Terms and Conditions document, the Proposal (see definition below), together with any other Supplements, exhibits, schedules or attachments hereto.

 

• “Client Content” means all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables.

 

• “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as stated and or enforceable under South African Law.

 

• “Deliverables” means the services and work product specified in the Proposal to be delivered by Kernel Industries to the Client, in the form and media specified in the Proposal.

 

• “Proposal” ( alternatively, “the website design proposition”) means the premium website design proposition for the Clients as found throughout Kernel Industries’ Website, particularly the ‘products’ or ‘shop’ pages, but with the encompassing elements found throughout the Kernel Industries’ Website, especially expressed in the home page, that makeup the full offer of the value proposition.

 

Payment schedule:

• Half price of the total amount in the proposal of the selected package is paid in the begging before work is performed, in order to initiate work on the project. The remaining half price of the full amount is due upon completion of the project. Upon payment of this remaining amount, Rights of use of the completed website will be given to the Client. In other words, the Client will be given access to the designed website once all remaining amounts have been paid.
• Subscription fee of the selected package is to be paid timeously every month by the Client for them to continue receiving access to their website.

 

• “Kernel Industries’ Website” means the website located at kernelindustries.com or such other URLs that are associated with and controlled by Kernel Industries and that Kernel Industries notifies the Client of from time to time.

 

• “Subscription” means any of Kernel industries’ paid services offered on a recurring basis for a limited time or for as long as the Clients wishes subject to having paid for those services.

 

• “Client “, “you”, refers to the person or legal entity/business contracting with Kernel Industries to obtain its products and or services subject to the following Terms of Use:

• If it a person then that person is contracting with Kernel Industries on a personal capacity, or
• If it is a legal entity/business such as a company then the person representing the legal entity represents it in the following permissible manner;
• This person is authorised to enter into this contract on behalf of the legal entity. This includes among other things that this person agrees to notify the legal entity’s financial officers and other relevant officers of the legal entity of the terms of this agreement relating to the payment of product(s) and or service(s) fees, and to obtain approval of the payment schedules called for by this agreement, notwithstanding any internal policies the legal entity may have regarding how its bills are paid; and
• This person will be the authorised representative of the legal entity but the contract is entered into between Kernel Industries and the legal entity; and
• If this person does not hold the permits or is not legally authorised to bind a legal entity as our Client as per these Terms and Conditions, then the person in question will be liable for any amounts due to Kernel Industries in their personal capacity, in the event that the concerned legal entity refuses to pay any amounts which may be due.

 

 

 

 

• “Kernel Industries’ Tools” means all design tools developed and/or utilized by Kernel Industries 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 website design, architecture, layout, navigational and functional elements.

 

• “Final Art” means all creative content developed or created by Kernel Industries, or commissioned by Kernel Industries, 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 Client Content, and Kernel Industries’ selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

 

• “Final Deliverables” means the final versions of Deliverables provided by Kernel Industries and accepted by the Client.

 

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

 

• “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

 

• “Services” mean all services and the work product to be provided to the Client by Kernel Industries as described and otherwise further defined in the Proposal.

 

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

 

• “Trademarks” mean trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of the Client.

 

• “Rights of Use of Service” refers to the rights of use of the Final Deliverables (Client designed website).

 

• “License”

A license is a limited grant given by Kernel Industries to the Client of rights to use the intellectual property comprising the final website in a specified way.

 

 

2. EFFECT OF THE AGREEMENT

The terms of the Agreement shall be effective immediately after there is proof of receipt of payment by the Client. In the event that such proof is not received from the Client, the Agreement, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

 

3. FEES AND CHARGES

Fees

In consideration of the Services to be performed by Kernel Industries, the Client shall pay to Kernel Industries fees in the amounts and according to the payment schedule set forth in the Proposal.

As set forth in the proposal, Kernel Industries will only initiate work on a project once a deposit of half of the total amount of the selected product package is paid in full. The remaining half of the total amount will be paid by the Client when Final Deliverables are delivered to the Client.

Subsequent monthly subscription fees as set forth in the proposal will follow.

 

Invoices

All invoices are payable within 7 days of receipt. A monthly service charge of 16 percent (16%) simple interest is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection of fees necessitated by lateness or default in payment. Kernel Industries reserves the right to withhold delivery and any transfer of Rights of Use of any Services if accounts are not current or overdue invoices are not paid in full. All grants of any license to use any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Fees, Charges, or the costs of Changes.

 

Refunds

• If kernel Industries feels it will not be able to handle/deliver on a material basis, or optimise its resources based on the scope of required work (Deliverables) that the client wants, after subsequent deposits have been made, then Kernel Industries will refund the Client all the amounts except for a R300 handling fee.
• In the event these Terms and Conditions are terminated for whatever reason, after Kernel industries has already begun work on the project, and before Deliverables are accepted by the Client, then an amount of R3500.00 will be non-refundable.

 

4. CHANGES

General Changes

Unless otherwise provided in the Proposal, and except as otherwise provided for herein, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services on a time and materials basis, at Kernel Industries’ standard hourly rate of R300.00 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. Kernel Industries may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

 

Substantive Changes

If the Client requests or instructs Changes that amount to a revision in or near excess of 80 percent (80%) of the time required to produce the Deliverables, and or the value or scope of the Services, the Client shall pay an additional charge of R3500.00 only. This additional charge will be added to any of the product design package that the Client would have selected in the first place. Kernel Industries will send a notice to the Client notifying them if the requested changes are considered substantive changes.   Work shall not begin on the revised services until a document/notice indicating written approval by Client is fully signed. Kernel Industries may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such substantive changes.

 

Timing

Kernel Industries will prioritize 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 Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Kernel Industries. Kernel Industries shall be entitled to request written clarification of any concern, objection or correction. Some of Kernel Industries’ Tools (such as software) may be used to facilitate collaboration in this regard. The Client acknowledges and agrees that Kernel Industries’ ability to meet any and all schedules is entirely dependent upon the Client’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 Client’s performance or Changes in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or Kernel Industries’ obligations under this Agreement.

 

Testing and Acceptance

Kernel Industries will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within seven (7) business days of receipt of each Deliverable, shall notify Kernel Industries, 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 the Client wishes to be made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Kernel Industries 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 Client, the Deliverable shall be deemed accepted.

 

 

5. THE CLIENT’S RESPONSIBILITIES

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

(a) Coordination of any decision-making with parties other than the Kernel Industries;

(b) Provision of the Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise provided in the Proposal or expressly stated in the “Design Questions Form” that the Client will be provided with; and

(c) final proofreading and in the event that the Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, and the Client fails to point this out to Kernel Industries within seven days after acceptance of Final Deliverables, then Client shall incur the cost of correcting such errors (billed at Kernel Industries’ standard hourly rate of R300.00 per hour).

 

6. 6. DOMAIN REGISTRATION AND RENEWAL

The Client acknowledges that:

• Domain registration and administration is the sole responsibility of kernel Industries.

 

• Kernel industries offers free registration and free yearly renewals of any domain name only with a “.co.za” domain space.

 

• The Client can choose to register for any domain ending with any of the available domain name spaces (e.g. “.com” or “.org.za”) subsequent to paying Kernel Industries for the relevant registration fees at the time for such a request.

 

• Kernel industries will subsidize for any yearly renewal fees to an amount equivalent to the “.co.za” domain renewal at the time for renewal for any registered domains other than the “.co.za”, at which point the Client will be responsible for paying the rest of the domain yearly renewal fees.

 

• Only appropriate domain names will be registered and it is at Kernel Industries’ discretion to deem any proposed domain names as appropriate or inappropriate. Kernel Industries will not be unreasonable in its discretion.

 

• Until such time of express written termination of this agreement, domain names remain the Intellectual Property of Kernel Industries. Contingent upon the Client paying Kernel Industries for any Prepaid Amounts on the specific domain, Kernel Industries will assign to The Client all intellectual property rights to the domain in question. Kernel Industries agrees to reasonably cooperate with the Client and shall execute any additional documents reasonably necessary to evidence such assignment.

 

• Clients who already have domains names registered can still attain services from Kernel Industries whilst using any domains they might already have. Additional Terms and Conditions for such Clients will be drawn on a case by case basis.

7. HOSTING

Hosting is provided on our platform as each website will be built on an existing network.

 

Filtration mechanism for spam and or viruses

Kernel Industries utilizes means and systems of filtering out spam and or viruses to help protect our Clients from spam, viruses and mail that is not solicited. Kernel Industries brings to the attention of the Client that should this system wrongfully identifies a legitimate mail as spam/or a virus, such a message may not be delivered to the Client as a consequence.

Without limitation, the Client acknowledges that kernel Industries will not be responsible or liable for any lost data or any other loss or damages that may befall the Client due to this system.

To classify if the incoming and outgoing mail traffic or comments are malicious or legitimate, Kernel Industries reserves the right to examine such traffic.

 

Webmail

Kernel Industries provides you with webmail and other web-based mail services on an “as-is” basis without warranty to its quality. The Client acknowledges without limitation that for no case regarding any aspect of the webmail shall Kernel Industries be held liable for any corrupted/damaged or lost data or any consequence befalling the Client as a result of the webmail services.

 

Mail size limit

A single mail sent to the Client’s mail box may be limited to 3000KB in its size.

 

Storage

The Clients is given 4Gigabytes of storage space exclusively for mail storage space, and can have up to 150 email accounts. It is the responsibility of the Client to use this memory allocation in a responsible manner. For efficient resource allocation, the Client will first be given 2Gibabytes of storage with 75 business emails, but this can be upgraded to the 4Gigabytes package subject to our systems showing that the Client indeed needs more space usage, either at the Client’s request or at the discretion of Kernel Industries.

The Client can add an additional 1Gigabyte of storage space with the ability to add 75 more email accounts at an extra R20 a month should the need arise. The Client can add additional storage space with additional email accounts as many times as they want.

 

Procedure for a takedown notice

Kernel Industries may receive a takedown notice from the Internet Service Providers’ Association (ISPA) as contained in the Electronic Communications and Transactions Act (“the ECT Act”).

Kernel Industries will in the event of a takedown notice from ISPA;- timeously inform the Client of the takedown notice;- afford the Client sufficient time to remove the infringing/illegal/disputed content;- and finally, Kernel Industries will remove/takedown any site or parts of any site included in the takedown notice from ISPA.

Enquiries can be directed at the email address: takedown@ispa.org.za or at the postal address: PO Box 518, Noerdwyk, 1687, Midrand.

 

 

 

8. ACCREDITATION/PROMOTIONS

All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Kernel Industries’ name in the form (link to Kernel Industries’ website and or its Trademark), size (reasonable size consistent/comparable to other sizes) and location (footer area or at the bottom of the website designed for the Client) as incorporated by Kernel Industries in the Deliverables, or as otherwise directed by Kernel Industries. Kernel Industries retains the right to reproduce, publish and display the Deliverables in Kernel Industries’ 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.

 

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

 

9. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

 

10. WARRANTIES AND REPRESENTATIONS

By the Client

The Client represents, warrants and covenants to Kernel Industries that:

(a) The Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

(b) To the best of the Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,

(c) The Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and

(d) The Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

 

By Kernel Industries

(a) Kernel Industries hereby represents, warrants and covenants to The Client that Kernel Industries will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Kernel Industries further represents, warrants and covenants to The Client that: (i) except for Third Party Materials and the Client Content, the Final Deliverables shall be the original work of Kernel Industries and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Kernel Industries, Kernel Industries shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Kernel Industries to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Kernel Industries’ knowledge, the Final Art provided by Kernel Industries and Kernel Industries’ subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event the Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Kernel Industries shall be void.

(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, KERNEL INDUSTRIES MAKES NO WARRANTIES WHATSOEVER. KERNEL INDUSTRIES EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

 

11. INDEMNIFICATION/LIABILITY

By the Client

The Client agrees to indemnify, save and hold harmless Kernel Industries from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Kernel Industries shall promptly notify the Client in writing of any claim or suit;

(a) The Client has sole control of the defence and all related settlement negotiations; and

(b) Kernel Industries provides the Client with commercially reasonable assistance, information and authority necessary to perform the Client’s obligations under this section. The Client will reimburse the reasonable expenses (if any) incurred by Kernel Industries in providing such assistance.

 

By Kernel Industries

Subject to the terms, conditions, express representations and warranties provided in this Agreement, Kernel Industries agrees to indemnify, save and hold harmless the Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Kernel Industries’ representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of the Client provided that:

(a) The Client promptly notifies Kernel Industries in writing of the claim;

(b) Kernel Industries shall have sole control of the defence and all related settlement negotiations; and (c) The Client shall provide Kernel Industries with the assistance, information and authority necessary to perform Kernel Industries’ obligations under this section. Notwithstanding the foregoing, Kernel Industries shall have no obligation to defend or otherwise indemnify the Client for any claim or adverse finding of fact arising out of or due to the Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Kernel Industries.

 

Limitation of Liability

THE SERVICES AND THE WORK PRODUCT OF KERNEL INDUSTRIES ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF KERNEL INDUSTRIES, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“KERNEL INDUSTRIES PARTIES”), TO THE CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF KERNEL INDUSTRIES. IN NO EVENT SHALL KERNEL INDUSTRIES BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY KERNEL INDUSTRIES, EVEN IF KERNEL INDUSTRIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

12. TERM AND TERMINATION

 

This Agreement shall commence upon the Effective Date and shall remain effective for as long as the services continue.

 

This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

 

Kernel Industries will not unreasonable terminate this agreement with the Client, and that termination by Kernel industries will be one of the last resorts upon material breaches not remedied by the client within specified time frames and upon reasonable notice from kernel Industries. Services to the Client or the Client account(s) may be suspended if for example, the Client accounts are in arrears in terms of their subscription fees, but suspension of accounts will not constitute Termination of this Agreement

 

In the event of termination, Kernel Industries shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Kernel Industries or Kernel Industries’ agents as of the date of termination, whichever is greater; and the Client shall pay all fees together with any Additional Costs incurred through and up to, the date of cancellation.

 

13. GENERAL

 

Modification/

This Agreement may be modified by the parties. Any modification of this Agreement must be in writing and such modifications must expressly specify and state the extent to which they amend this Agreement. Any such modifications must be signed by both parties to be of any effect to this Agreement. Request for modification of this agreement must be made by either party to the other prior to any work begun by Kernel Industries on the Project.

 

Waiver

Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

 

Notices

All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt.

Notice shall be effective:

• On the same day in the case of email, upon receiving receipt which confirms that transmission is completed.
• On the same day in the case of fax, subject to receiving receipt confirming that transmission is completed and with the original notice is sent by a same-day courier to following postal address: PO Box, 1081, Sifahla, 0957

 

 

Assignment

• By the Client

The Client may not assign, whether in writing or orally, cede, delegate, assign or transfer its rights or obligations under this Agreement, without obtaining prior written consent of Kernel Industries.

Kernel Industries will not unreasonably withhold consent.

 

• By Kernel Industries

Subject to Kernel industries giving reasonable notice to the Client, Kernel Industries may cede, delegate, assign or transfer all or any of our rights, interests or obligations under this agreement.

 

 

Interruption Event/ Force Majeure (“Superior force”)

Kernel Industries shall not be deemed in breach of this Agreement if Kernel Industries is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or incapacity of Kernel Industries or any South African law or international law, governmental order or regulation or any other event beyond Kernel Industries’ control (collectively, “Interruption Event” or “Force Majeure Event”). Upon occurrence of any Interruption Event, Kernel Industries shall give notice to the Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

 

Governing Law and Dispute Resolution

 

The formation, construction, performance, interpretation and enforcement of this Agreement shall be governed in accordance with the laws of the Republic of South Africa. Kernel Industries and the Client agree to submit to the jurisdiction of the Gauteng courts.

 

In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties.

 

If Kernel Industries and the Client are unable to resolve the dispute, both parties agree to meaningfully engage in dispute resolution forums (mutually agreed to by the parties) and exhausting those available forums such as mediation and/ or binding arbitration, prior to seeking assistance from courts.

 

The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs.

 

Severability

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

 

Headings

The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

 

Integration

This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Terms, the terms of the Proposal shall control.

 

 

14. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

 

Rights to Final Deliverables

 

Ownership of the website designed for the Client

Kernel Industries retains ownership of the website designed for use by the Client while granting a non-exclusive License for the Client to use it.

Right of use

After development of the website is complete, transfer of Rights of Use of Service is subject to a disclosed monthly subscription fee, after which Kernel Industries will grant a non-exclusive License for the Client to use the website designed for them.

Every month Kernel Industries will transfer Rights of Use of Service to the Client contingent upon receipt of full subscription payment from the Client for the service.

 

The Client Content

The Client Content, including all pre-existing Trademarks, shall remain the sole property of the Client or its respective suppliers, and the Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to Kernel Industries a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Kernel Industries’ performance of the Services and for promotional uses of the Deliverables as authorized in this Agreement.

 

Third Party Materials

All Third Party Materials are the exclusive property of their respective owners. Kernel Industries shall inform The Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Kernel Industries shall inform the Client of any need to license, at the Client’s expense, and unless otherwise provided for by the Client, the Client shall obtain the license(s) necessary to permit the Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event the Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, the Client hereby indemnifies, saves and holds harmless Kernel Industries from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of the Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.

 

Preliminary Works

Kernel Industries retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to Kernel Industries within thirty (30) days of completion of the Services or if the Preliminary Works were digital as it will be for most instances, the Client shall destroy/delete all such Preliminary Works provided by Kernel Industries and all rights in and to any Preliminary Works shall remain the exclusive property of Kernel Industries.

 

Original Artwork

Kernel Industries retains all rights and title in and to any original artwork comprising Final Art, including all rights to display, redistribute or sell such artwork. The Client shall return all original artwork to Kernel Industries within thirty (30) days of completion of the Services or if the artwork were digital as it will be for most instances, the Client shall destroy/delete all such artwork provided by Kernel Industries.

 

Trademarks

Kernel Industries makes no claim of ownership to Client provided content. All Trademarks and Intellectual Property of any content provided by the Client remains the sole property and belongings of the Client. Client shall have sole responsibility for ensuring that any proposed Trademarks or part of the Deliverables intended to be a Trademark are available for use in commerce and do not otherwise infringe the rights of any third party.

The Client hereby indemnifies, saves and holds harmless Kernel Industries from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of the Client’s use and/or failure to obtain rights to use or use of the Trademark.

 

Kernel Industries’ Tools

All Kernel Industries’ Tools are and shall remain the exclusive property of Kernel Industries. Kernel Industries hereby grants to the Client a nonexclusive, non-transferable, worldwide license to use the Kernel Industries Tools solely to the extent necessary with the Final Deliverables for the Project. The Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Kernel Industries Tools comprising any software or technology of Kernel Industries.

 

 

15. RIGHTS TO FINAL ART

 

 

Assignment:

Upon completion of the Services (not including subscription services), and expressly subject to full payment of all fees/costs due (not including subscription fees) Kernel Industries hereby assigns to the Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art (“Final Art” as described in the DEFINATIONS section of this agreement, and as a divisible component of the Final Deliverables, but not the Final Deliverables in its entirety). Kernel Industries agrees to reasonably cooperate with the Client and shall execute any additional documents (if any) reasonably necessary to evidence such assignment.

 

The Client shall have sole responsibility for ensuring that any proposed Final Art intended to be a Trademark are available for use in commerce do not otherwise infringe the rights of any third party.

 

 

16. SUPPORT SERVICES

 

Support services

Support services will be made available to all Kernel industries’ Clients through Kernel Industries’ channels.

“Support Services” means commercially reasonable technical and non-technical support and assistance to any issues that may arise regarding the usage of Final Deliverables, but shall not include the development of enhancements to the Project and or changes or substantive changes.

 

Updates

Kernel industries will perform updates on its network(s) for performance, security reasons and if any, for keeping up with modern design elements.

Free lifetime warranty of change of copy

“Free lifetime warranty of change of copy” as contained herein refers to the maintenance of copy, that is, modification of any written content that is contained in static elements like web pages that the Client does not have the ability to edit in the Final Deliverables. Kernel Industries will limit modifications on copy to two times a year. If the Client wishes to modify their copy beyond the two free maximum limits as per the free lifetime copy warranty, then for every modification request above the stated limit the client will pay a service fee as per Kernel industries’ standard hourly rate. Our definition of copy does not include pictures and other multimedia.

 

17. ENHANCEMENTS

After Final Deliverables are delivered to and accepted by the Client, there will be no maintenance period except for correcting Deficiencies (“Deficiencies” as defined below) identified within seven days after delivery and acceptance date, and except for the free lifetime warranty of change of copy as defined above. However, The Client may request that Kernel Industries develop enhancements to the Deliverables, and Kernel Industries shall exercise commercially reasonable efforts to prioritize Kernel Industries’ resources to create such enhancements. 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 at Kernel Industries’ standard hourly rate of R300.00 per hour and or on a time and materials basis price for such services.

 

18. ADDITIONAL WARRANTIES AND REPRESENTATIONS

 

Deficiencies

Subject to the representations and warranties of the Client in connection with the Client Content, Kernel Industries represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by the Client Content, modifications, alterations or changes made to Final Deliverables by the Client or any third party after delivery by Kernel Industries, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that the Client’s sole remedy and Kernel Industries’ sole liability for a breach of this Section is the obligation of Kernel Industries to correct any Deficiency identified within the seven days after delivery and acceptance of Final Deliverables. In the event that a Deficiency is caused by Third Party Materials provided or specified by Kernel Industries, Kernel Industries sole obligation shall be to substitute alternative Third Party Materials.

 

Kernel Industries Tools

Subject to the representations and warranties of the Client in connection with the materials supplied by the Client, Kernel Industries represents and warrants that, to the best of Kernel Industries’ knowledge, Kernel Industries’ Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by the Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by the Client or third parties.

 

19. COMPLIANCE WITH LAWS

Kernel Industries shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. The Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating pertaining to their use of the Deliverables.