By entering into any contract or agreement with Sea-Waves Technology for products and/or services including without limitation ordering any products or services through the Sea-Waves Technology web site (hereinafter referred to as your “Contract” with Sea-Waves Technology), you hereby agree to abide by, comply with and be legally bound by the policies, terms and conditions hereinafter set forth (these “Terms and Conditions”).
These Terms and Conditions are hereby incorporated by reference into your Contract. To the extent that any provision of these Terms and Conditions conflicts with any provision of your Contract, the provision set forth herein shall be deemed amended so as to be consistent with the provisions of your Contract.
Sea-Waves Technology reserves the right to modify, amend, update and change these Terms and Conditions from time to time with notice via email or other means. You are responsible for regularly viewing these Terms and Conditions. You acknowledge and agree that Sea-Waves Technology shall not be liable to you or to any third party for any modification, amendment, suspension, discontinuance or other change to these Terms and Conditions.
In this Agreement, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:
- “Agreement” means this agreement between Sea-Waves Technology and the Client (together with the annexures hereto), as amended, supplemented, varied or novated from time to time, incorporating, amongst other things, all Quotes, Invoices, debit order authorizations and any terms and conditions applicable to any promotional offers of Sea-Waves Technology, from time to time.
- “Client”, “You” and “Your” means the party or parties who are authorised to make decisions regarding signing up/registering and understanding / accepting these terms and conditions – who utilize Products and/or Services provided by Sea-Waves Technology.
- “Content” means all materials, information, photography, writings and other creative content.
- “Contract”, “Contract Agreement” and “Terms & Conditions” is all terms used for this Contract Agreement.
- “Deliverables” means the services and work product specified in the Proposal to be delivered by Sea-Waves Technology to the Client, in the form and media specified.
- “Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, trademarks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other intellectual property rights (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals, extensions or revivals of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property)
- “Project” stands for any work Sea-Waves Technology undertake or any service provided by us, described on our website based upon the applicable plan.
- “Services” means all services and the work product to be provided to Client by Sea-Waves Technology as described and otherwise further defined.
- “Specifications” means the specifications in respect of the nature and scope of the Services to be performed by Sea-Waves Technology, as set out in the Quote and/or Invoice
- “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
GRAPHIC DESIGN TECHNICALITIES
- The artwork designed will have a CMYK color model.
- We DO provide (high resolution) image files including .jpeg image files (white background) and .png image files (transparent background)
- We can also provide Vector files (.eps / .svg}.
- We DO NOT provide editable image files such as .psd or .ai. (if you need edits or changes to your graphics in the future, we would be happy to help you for a minimal fee). We would be happy to provide you with each separate element of your graphic(s) in separate image files. For instance, if your logo has both wording and graphics, we can create separate image files for each to be used as you wish.
CLIENT PARTICIPATION AND SPECIFICATIONS AT START OF THE PROJECT, AND THEREAFTER
By agreeing to this, you the Client acknowledge that you have been given the opportunity to provide/describe what are considered initial specifications and guidelines for your graphic project. This is accomplished through the form which is the first step of the order form which includes detailed and specific questions intended to assist the designer in their initial designs.
In any case where you the Client/Customer elect not to answer, or decline to provide details, you are acknowledging a willful waiver of Client input, and give your consent for the designer(s) to exercise full interpretation, being held blameless for any designs which may result, in the unfortunate event that the Client is not satisfied.
SCOPE OF PROJECT
The initial number of designs varies by project, and in no case may the Client request additional new designs, in the event that they do not approve of the ones which were submitted. The number of designs presented is presumed to have satisfied the initial number of designs as stated in the package description.
In the event that the Client requests additional designs, beyond the scope of their package (not including any unlimited revisions, which is a material change to an existing design, and not a redraw, and are not charged or considered to be redesigns), they are subject to additional charges of R100 per designer hour, prepaid in increments of three hour blocks. Any design requests outside of the specific stated scope or quote of the package are also subject to the same hourly charge, in prepaid one hour increments, and are non-refundable.
- You will be sent an invoice from Sea-Waves Technology
- You do NOT need to have a PayFast account in order to make a payment. There is an option on the invoice to pay via credit card, debit card, or electronic check.
- A 50% non-refundable deposit is required before we begin on a project. We do not issue refunds for fees paid in advance. Once a payment or deposit is made, it is non-refundable. If a project is cancelled or postponed, all monies paid are retained by Sea-Waves Technology and if applicable, a fee for all work completed beyond what was already paid for shall be paid by the Client.
- The remaining balance will be invoiced upon completion of the job.
- Original image files will not be emailed until the full balance has been paid.
DELIVERY AND ACCEPTANCE
While Sea-Waves Technology takes all care to avoid errors, Sea-Waves Technology accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to production.
Upon completion of its products and/or Services in accordance with the Terms and Conditions set forth in your Contract, Sea-Waves Technology shall deliver your product and/or service to a temporary location (Client Portal) designated by Sea-Waves Technology for your review.
Sea-Waves Technology will notify you via e-mail of such completion and delivery, and the manner in which you may access the temporary location for purposes of reviewing your product and/or service. You shall have 30 business days from the date of delivery to said temporary location to notify Sea-Waves Technology in writing of your acceptance or rejection of the product and/or service. Your failure to notify Sea-Waves Technology in writing of your rejection of the product and/or service within said 30-day period shall constitute your acceptance of the product and/or service.
The Client is to proofread and approve all final copy before the production of artwork. No refunds are given after a final approved design has been released due oversights by the Client’s proofreading.
In the event you reject the product and/or service, you shall notify Sea-Waves Technology in writing of your rejection within said 30-day period, including a detailed explanation for such rejection, following which Sea-Waves Technology shall use commercially reasonable efforts to provide a substitute or replacement product or service as soon as practicable.
Upon your written acceptance of the product or service, or any substitute or replacement product or service, Sea-Waves Technology shall release and deliver the same to you, to such location and in such format as agreed upon in your Contract.
This project will be determined to be closed if we do not have written, phone or in person contact from 30 days from the last revision. The project may be re-opened only upon Sea-Waves Technology’s discretion.
REVISIONS / CONCEPTS
Our prices include unlimited revisions on the design of your choice. If you sign off on an image once we send you the finalized graphic image files and you see something that needs to be changed or fixed – you will be charged for a revision (this even includes typos that may have been a mistake on our part). Each additional revision or new concept is R100. Be sure to proof read before giving the go to finalize the design.
THIRD-PARTY CONTRACTORS AND STAFF
Sea-Waves Technology may from time to time appoint and/or sub-contract third parties to perform Services or provide Deliverables (in part or in full) provided Sea-Waves Technology shall remain the primary point of contact with the Client.
Sea-Waves Technology shall use due care and skill in the selection and appointment of third parties in accordance with above clause.
The Client hereby undertakes to Sea-Waves Technology, that it shall not for the duration of this Agreement and for a 24-month period thereafter, whether directly or indirectly, nor in any capacity whatsoever, circumvent Sea-Waves Technology by directly engaging a third party supplier appointed by Sea-Waves Technology, to the exclusion of Sea-Waves Technology, in connection with the Services and project. The Client agrees that a breach of this provision shall constitute a material breach of this agreement, entitling Sea-Waves Technology in its discretion, to terminate its services to the Client and/or to claim damages and opportunity loss costs.
The Client will, in its dealings with Sea-Waves Technology, work with various Sea-Waves Technology employees. The Client hereby undertakes to Sea-Waves Technology that it shall not approach any of these employees with offers of direct employment for a 24-month period post-termination of its business dealings with Sea-Waves Technology.
RESENDING COMPLETED FILES
If a Client loses or accidentally deletes the files delivered by Sea-Waves Technology at the completion of the project, Sea-Waves Technology can re-send files for a fee of R50 per request.
We use email and Client Portal as our main means of communication. We like to use the Client Portal correspondence as reference when we are able to begin working on a project. This helps us to keep things in order and to keep track of project details and answers to the many questions that we usually have for Clients.
We will be communicating with you often during the design process. We will need specific feedback and your approval to continue the work. Responding to our questions in a timely manner will allow your design to progress.
Regular communication is critical to the design of your project and those in line behind you. Failure to communicate with us about the design process for a period of 72 hours (whether expectedly or unexpectedly), will result in your project being placed on hold and moved to the end of our current queue. If the design schedule allows, you may pay an additional 25% of the current cost of the project to reschedule at the top of the waiting list.
Should you fail to provide necessary files or pieces of information within 10 days of the date requested, all payments will be forfeited to Sea-Waves Technology and the project will be cancelled without notice.
You represent and warrant that you are the owner of or have the exclusive right to use any and all proprietary information you provide to Sea-Waves Technology in furtherance of or in connection with your contract, including without limitation any and all trade names, trademarks, copyrights, graphics, designs, logos and similar materials or information.
SEA-WAVES TECHNOLOGY MAKES NO REPRESENTATION OR WARRANTY THAT IT HAS THE EXCLUSIVE RIGHT, TITLE AND INTEREST IN AND TO THE PRODUCTS AND/OR SERVICES PROVIDED TO YOU OR THAT SUCH PRODUCTS AND/OR SERVICES DO NOT AND WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. SEA-WAVES TECHNOLOGY WILL NOT TAKE ANY ACTION IN FURTHERANCE OF PROTECTING THE PRODUCTS AND/OR SERVICES TO BE DELIVERED UNDER YOUR CONTRACT, AND WILL DELIVER THE SAME “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY AS TO YOUR ABILITY TO USE SUCH PRODUCTS AND/OR SERVICES OR TO OBTAIN TRADEMARK, COPYRIGHT OR SIMILAR PROTECTION OF SUCH PRODUCTS AND/OR SERVICES, IN SOUTH AFRICA OR ANY OTHER JURISDICTION.
Upon your acceptance of the product or service and Sea-Waves Technology’s receipt of payment in full therefore, Sea-Waves Technology will assign, convey, transfer and deliver all of its right, title and interest in and to the products and/or services developed by Sea-Waves Technology for you under the terms of your Contract. Any products or services, including samples, rejected or otherwise not delivered by Sea-Waves Technology and accepted by you shall at all times remain the property of Sea-Waves Technology and you shall have no right in or to such products or services.
Sea-Waves Technology retains and reserves the perpetual, royalty-free right to use any and all products and/or services developed by Sea-Waves Technology for display and self-promotional purposes, regardless of your acceptance and Sea-Waves Technology’s delivery of the same to you.
From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of the Client cancelling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to Sea-Waves Technology. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more that 50% completed (this is determined by Sea-Waves Technology and the Client by negotiation) a pro-rata payment is payable for time spent up until cancellation notice.
If a project is cancelled by Sea-Waves Technology, due to unforeseen circumstances, the deposit will be refunded in full to the Client in a timely manner.
In the event of cancellation of the project by the Client, ownership of all copyrights and the original artwork shall be returned and retained by the Sea-Waves Technology.
DISCLAIMER OF WARRANTIES
YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INFORMATION, SOFTWARE, CODES, PRODUCTS, SERVICES, TEXT, GRAPHICS OR OTHER ITEMS AND MATERIALS PROVIDED OR MADE AVAILABLE BY SEA-WAVES TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY LAW, SEA-WAVES TECHNOLOGY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SUITABILITY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE. SEA-WAVES TECHNOLOGY MAKES NO WARRANTY THAT ITS PRODUCTS OR SERVICES WILL BE PROVIDED IN A TIMELY AND SECURE MANNER, OR WITHOUT ERRORS OR DEFECTS, OR THAT ITS PRODUCTS OR SERVICES WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. SEA-WAVES TECHNOLOGY DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE PRODUCTS OR SERVICES PROVIDED BY SEA-WAVES TECHNOLOGY WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SEA-WAVES TECHNOLOGY OR ANY SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR, SHAREHOLDER, AGENT, EMPLOYEE OR REPRESENTATIVE THEREOF BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM THROUGH YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION OR LOSS OF INFORMATION OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES), ARISING OUT OF OR RELATED TO YOUR CONTRACT, THESE TERMS AND CONDITIONS, OR THE PRODUCTS OR SERVICES PROVIDED BY SEA-WAVES TECHNOLOGY TO YOU, EVEN IF SEA-WAVES TECHNOLOGY HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN YOUR CONTRACT OR THESE TERMS AND CONDITIONS, SEA-WAVES TECHNOLOGY’S LIABILITY TO YOU FOR ANY DAMAGES RELATED TO OR ARISING OUT OF THE CONTRACT OR SEA-WAVES TECHNOLOGY’S PROVISION OF PRODUCTS OR SERVICES SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO SEA-WAVES TECHNOLOGY UNDER YOUR CONTRACT OR FOR SUCH PRODUCTS OR SERVICES.
Client agrees to defend, indemnify and hold harmless Sea-Waves Technology, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through Sea-Waves Technology services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by Sea-Waves Technology or from Client’s breach or violation of the TOS, including any obligation, representation, or warranty made herein, or Client’s violation of any rights of another.
Client further agrees to defend, indemnify and hold harmless Sea-Waves Technology, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc., made between Client and third parties, or arising from or related to Client’s negligence toward third parties.
Sea-Waves Technology retains full ownership of design concepts and materials it produces. Only finished art files suitable for reproduction will be supplied to the Client. Raw/working/source files remain the property of Sea-Waves Technology unless otherwise negotiated. ‘Finished artwork’ is as defined in the proposal/quotation and is dependent on the scope of work. Raw/working/source files are defined as the files used to create the finished artwork and/or directly editable files unless otherwise specified.
Once a concept is approved, finished artwork is delivered to a Client and full payment is received, the agreed ownership rights to the finished artwork transfer to the Client. Unused concepts remain the property of Sea-Waves Technology and includes design proposals and concepts submitted but not approved for the work outlined.
Until final payment, Sea-Waves Technology retains ownership of all artwork. Sea-Waves Technology reserve the rights to certain elements used to create your artwork including fonts, patterns, stock images, textures, colour palettes, and other non-exclusive items.
Sea-Waves Technology reserve the right to use stock images in the creation of designs if required. Costs of this will be outlined to the Client prior to purchase if not included in the proposal quote.
Sea-Waves Technology reserve the right to use all artwork produced, concepts produced in the course of the project (including those concepts not selected) and revisions for the purposes of promoting Sea-Waves Technology in print or digital media portfolios, social media and blogs, except where the Client has specifically requested in writing otherwise.
Neither this document nor any rights or obligations of this document may be assigned or otherwise transferred by either party without the prior written permission of the other.
If we do not act in relation to a breach by you of this document, this does not waive our right to act with respect to that or subsequent or similar breaches.
Nothing stated in this document constitutes you and us as partners or creates the relationship of employer and employee, master and servant or principal and agent between the parties. Neither party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this document or authorised in writing.
If any provision of this document should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be affected or impaired. This document must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
These Terms and Conditions shall be governed by and subject to the laws of South Africa without regard to its rules concerning conflicts of law. The parties hereto irrevocably consent that all disputes which may arise out of or in connection with this Agreement or the Terms shall be subject to the exclusive jurisdiction of the courts of South Africa.