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| 1. Terms and conditions |
1.1 These terms and conditions together with the order form or letter to which they are attached ("the request") will form a binding contract between the Client named on the Request ("the client") and Nirph Digital (Pty) Ltd.("Nirph Digital (Pty) Ltd.") which shall constitute the entire agreement between client and Nirph Digital (Pty) Ltd. and apply to any trading agreement or other contract or arrangement between client and Nirph Digital (Pty) Ltd.
1.2 These terms apply to the exclusion of all other terms or conditions of contract the client may propose and shall not be varied unless agreed in writing and signed by Nirph Digital (Pty) Ltd. |
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| 2. Client |
| 2.1 The client will co-operate with, and act in good faith towards Nirph Digital (Pty) Ltd. and provide on request such source materials including those listed in the request ("materials") as Nirph Digital (Pty) Ltd. are to incorporate into the software or Nirph Digital (Pty) Ltd. require to carry out its obligations hereunder. |
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| 3. Payment |
3.1 The client shall pay Nirph Digital (Pty) Ltd. the fees without deduction, or set-off (with VAT thereon) within 30 days of the date of invoice unless specified otherwise in the request.
3.2 Nirph Digital (Pty) Ltd. shall be entitled to charge interest on any overdue payment at the rate of 5% over Standard Bank’s base rate prevailing at the time, and such reasonable costs as it incurs in the collection of such overdue payments.
3.4 If the client requires any change or alteration to the software ("change"), Nirph Digital (Pty) Ltd. and client shall, prior to such change being effective or implemented, agree:
• the nature of the change
• the procedures for implementation of such change
• the variation to the fees |
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| 4. Intellectual property rights/confidentiality |
4.1 All copyright, design rights, registered designs, trademarks, patents, database rights, confidential information, ideas, and all other rights whatsoever of a like nature worldwide, whether registered or not, of whatever nature in material devised, created or commissioned by Nirph Digital (Pty) Ltd., in supplying the software and under this agreement will vest in, and belong to Nirph Digital (Pty) Ltd., unless otherwise agreed and specified in writing on the request of, and or otherwise, and signed by both parties.
4.2 In consideration of, and upon payment of the fees in full, the client shall have the Rights of Use set out in the request which shall take effect on receipt by Nirph Digital (Pty) Ltd. of the fees. Where no such rights are specified, the client is granted a non-exclusive license to use the software for the purpose described in the request, proposal or other software documentation. Rights of Use shall be extended only with the consent of Nirph Digital (Pty) Ltd., and payment of additional fees.
4.3 The client shall not modify, adapt or translate the software except with the prior written consent of Nirph Digital (Pty) Ltd. or as otherwise permitted by law where all modifications, adaptations and translations shall belong to, and vest in, Nirph Digital (Pty) Ltd. unless otherwise agreed and specified in writing on the request.
4.4 Nirph Digital (Pty) Ltd. warrants that it will use reasonable efforts to ensure that the software do not infringe the copyright of any third party. |
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| 5. Inspection and acceptance |
5.1 The client shall inspect the software regularly, and shall inform Nirph Digital (Pty) Ltd. immediately if it wishes to reject any part of the software because such do not comply with the proposal, or are defective in material and workmanship.
5.2 If the software do not comply with the proposal, or are defective in material and workmanship, Nirph Digital (Pty) Ltd’s liability shall be limited to correcting such defects within a reasonable time.
5.3 The client shall only be entitled to reject the software because such do not comply with the proposal, or are defective in material and workmanship, and if they are not rejected within 48 hours of delivery then the client shall be deemed to accept the software. Rejection without good reason shall be deemed a breach of these terms. |
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| 6.Liability and warranty |
6.1 Subject to Clause 7.2 below, Nirph Digital (Pty) Ltd’s liability for any loss or damage, direct or otherwise, and howsoever caused whether in tort (including negligence), or contract, or otherwise, shall not exceed the amount invoiced by Nirph Digital (Pty) Ltd. to the client hereunder.
6.2 Nirph Digital (Pty) Ltd. shall not be liable to the client for any consequential loss or damage.
6.3 When instructions or advice are given or received orally by Nirph Digital (Pty) Ltd., it shall have no liability to the client for any misunderstanding or misrepresentation which may arise in relation thereto, except in relation to fraudulent misrepresentations.
6.4 Nirph Digital (Pty) Ltd. shall have no liability to the client in respect of the materials or service. On completion of the software, the client agrees to collect any and all materials within 2 months of completion of the software, failing which, Nirph Digital (Pty) Ltd. may dispose of them on giving the client 14 days notice. |
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| 7. Risk and title |
7.1 Risk in any reports or information delivered to the client will pass to the client on dispatch, and until payment in full has been received in cleared funds by Nirph Digital (Pty) Ltd. in respect of the software title and in any physical products delivered to the client shall remain with Nirph Digital (Pty) Ltd.
7.2 The client shall take out such insurance as shall be prudent, against all risks usually incurred in respect of the work whilst in its possession or control. |
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| 8. Termination |
8.1. Nirph Digital (Pty) Ltd. shall be entitled to immediately restrict, suspend or terminate the software and the client's use of any software, and, or terminate this agreement upon the client's material breach of this agreement (including without limitation the non-payment of any sum as and when due) unless the client remedies such breach within 14 days of its occurrence.
8.2 Nirph Digital (Pty) Ltd. will not be liable in any amount, for failure to perform any obligation under this agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Nirph Digital (Pty) Ltd., including without limitation internet outages, communications outages, fire, flood, war or act of God.
8.3 During the course of this agreement, and for a period of 12 months afterwards, the client shall not solicit the staff of Nirph Digital (Pty) Ltd., or entice them to transfer their employment or services. |
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