Terms of service
1. GENERAL
1.1 These terms and conditions (‘Agreement’) shall govern the provision and use of services made available by Melany Jane, owned and operated by Melany Jane Hodgson, and the individual or entity who requests and accepts the services of Melany Jane (‘Client’).
1.2 By accepting the services of Melany Jane you confirm that you have read this agreement, and accept the provisions contained in full. Accordingly, in the event that you disagree with these terms and conditions or any part thereof, you should not accept any service from Melany Jane.
1.3 By accepting the terms and conditions contained herein you agree to be fully responsible for any loss, claim, expense or liability that may arise from any services provided by Melany Jane, including but not limited to legal fees incurred by Melany Jane as a result of or pursuant to services provided to you, the Client, which may or may not arise from infringement of the terms of this agreement.
2. QUOTATIONS AND ACCEPTANCE OF SERVICE
2.1 All Quotations are issued free of charge and without obligation following receipt of a written brief from the Client outlining their service requirements (‘Service Brief’).
2.2 Quotations are valid for a period of ten (10) business days from date of issue, unless otherwise stated or an alternative arrangement is expressly agreed to by Melany Jane.
2.3 Quotations do not constitute the final invoice, and additional charges and disbursements may be levied to the Client following the issue of a Quotation.
3. COMMENCEMENT OF WORK AND SERVICE BRIEF
3.1 Commencement of work is subject to the Client accepting Melany Jane’s Quotation in writing, together with the Client furnishing Melany Jane with a detailed Service Brief in acceptance thereof, as outlined in Clause 2 above.
3.2 Commencement of work is further subject to payment of a non-refundable deposit / commencement amount of 50% of the total Quotation amount, as outlined in Clause 4.1 below.
3.3 Once Melany Jane has commenced work on a project pursuant to the Service Brief, whether website or otherwise, a certain allowance is made for amendments to the Service Brief, within reason and limited to any functionality, design or other requirement not part of the original Service Brief or initially agreed. Such allowance is however within reason, and at the sole discretion of Melany Jane.
3.4 In the event that the Client wishes to make significant changes to the Service Brief, and where deemed necessary by Melany Jane in her sole discretion, work will be discontinued until a re-costing has taken place and an updated Quotation issued to and approved by the Client. Such amended Quotation and Service Brief would be further subject to the provisions of Clause 2 above, prior to the commencement of any further work or the provision of any further services by Melany Jane.
3.5 No changes to the Service Brief will be undertaken by Melany Jane where such changes to the Service Brief would increase the cost of the work and service provided, without prior written consent and authorisation from the Client.
4. SERVICE FEES, INVOICES AND PAYMENTS
4.1 A commencement fee of 50% of the total Quotation amount is required to be paid by the Client to Melany Jane prior to the commencement of any services or work, unless otherwise arranged and expressly agreed to by Melany Jane.
4.2 The balance of the Invoice is due and payable upon presentation thereof, which presentation shall be effected following completion of the work.
4.3 In the event that any Invoice is not settled in full within 30 days of the date of issue thereof, interest will accrue on the total amount outstanding at a rate of 2% monthly.
4.4 Any Invoice enquiries, disputes and /or errors must be referred to Melany Jane within 30 days of receipt thereof, failing which the Client is deemed to accept the Invoice as correct and accurate.
4.5 Following completion of the Service Brief a formal handover of all work and / or projects completed by Melany Jane for the Client, which may or may not include final illustration files, will only be attended to once payment of the Invoice has been attended to by the Client.
4.6 The project and / or image rights remains the property of Melany Jane until full settlement of the Invoice is attended to by the Client, and final payment is received.
5. PROVISION OF CONTENT & ACCESS
5.1 It is expressly recorded that it is the Client’s responsibility to provide all written content and copy (wording) for the project, together with all images, videos and / or other content as the Client may require, which pertain to the Service Brief and which may be required for the provision of work and services by Melany Jane in accordance with the Service Brief, unless otherwise arranged.
5.2 The Client acknowledges that provision of all Material, including but not limited to graphic design and / or branding material, images, logos and videos to Melany Jane is at the Client’s own risk. While Melany Jane makes every effort to secure and back up all provided and existing data and Material provided by the Client to Melany Jane, the Client warrants that this is to a certain degree beyond the control of Melany Jane, and cannot be guaranteed by Melany Jane.
5.3 In instances where the Service Brief requires Melany Jane to work on a website and / or social media account (including newsletter services through Mailchimp) for the Client, the Client will provide the necessary login details to Melany Jane in order to for the work to commence.
6. COPYRIGHT AND PERMISSIONS
6.1 The Client specifically and expressly confirms that it has the copyright or written permission to use all Material supplied to Melany Jane, including but not limited to images, written content and copy, graphic design, branding and / or logos.
6.2 Melany Jane will under no circumstances be held liable for or party to any disputes that may arise in respect of copyright and / or the necessary permission to use any Material supplied to Melany Jane by the Client.
6.3 In the event that it becomes apparent to Melany Jane that the necessary permission to use any Material supplied by the Client was not obtained, and / or where it is clear that Material was provided to Melany Jane by the Client without the required copyright, and at Melany Jane’s sole discretion, any service amendments and project changes to remove such Material and correct the infringement will be for the Client’s sole expense, and at the Client’s cost.
7. PROJECT COMPLETION, DELIVERY OF WORK AND OWNERSHIP
7.1 Melany Jane will, upon completion of services and / or projects in accordance with the Service Brief, attend to a formal delivery and handover of the work and / or project to the Client, and provided that settlement of all outstanding fees and payment of the final Invoice has been attended to, in accordance with Clause 4.5 above.
7.2 In the event that the handover includes work done on a website, Melany Jane will not be liable for any breakages or issues on the site caused by anyone using the back-end and making changes, by human error, following handover thereof.
7.3 Website backups during the course of the provision of work and /or services by Melany Jane are the responsibility of the Client.
7.4 In the event that any further work and / or services are required in respect of a Client website following handover, such work will be quoted for separately, and only attended to by Melany Jane in the event that the Quotation is accepted by the Client, unless otherwise arranged.
7.5 Once delivery of the work has been made by Melany Jane to the Client, all responsibility and liability of any and all content or any other changes to the website whatsoever is transferred to the Client.
10. PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013
Melany Jane agrees to take all reasonable steps to ensure compliance with the safety of Client’s personal information, including collecting, storing, processing and sharing Client information, in compliance with the Protection of Personal Information Act [POPI]. Melany Jane cannot however be held liable for any loss which the Client may experience, which loss may be as a result of breach, stolen equipment and / or other theft of data.
11. POPI, GDPR OR ANTI-SPAM COMPLIANCE
11.1 The Client, as the website and mailing list owner, is responsible for ensuring that the website, its processes and any newsletters sent are compliant with POPI, the General Data Protection Regulation [GDPR] and both national and international anti-spam laws and regulations. Melany Jane cannot be held liable in this regard.
11.2 By accepting the services of Melany Jane you confirm that you are POPIA and GDPR compliant, have a privacy policy in place and have the consent of any customers or clients whose data you are sharing with Melany Jane or granting Melany Jane access to, by way of an online database (eg Mailchimp) or otherwise, to store their personal information, contact them via email and share their details with Melany Jane.
11.3 Any work required to ensure the Client’s website is compliant with these regulations after the website has been completed, are the sole responsibility of the Client, and for the cost of the Client.
12. EVENTS BEYOND THE CONTROL OF MELANY JANE
Melany Jane will not be liable for breach of contract where that breach was due to events such as but not limited to, late or non-supply of Client deliverables, equipment failure, supplier-side or hosting delays, WordPress, Theme or Plugin development changes, other software, hardware or electrical failure, a Force Majeure event, or other event beyond the control of Melany Jane.
13. TERMINATION AND CANCELLATION OF SERVICES
Should the Client no longer require the Services of Melany Jane, and for any reason whatsoever cancel the Service Brief with Melany Jane, all work in progress whether website or otherwise will be ceased immediately, calculated and Invoiced. Such Invoiced amount will be proportional to the degree of completion and at the sole discretion of Melany Jane. The Client will have no rights in any work and / or projects so cancelled.
14. VARIATION
Melany Jane may from time to time, and in its sole discretion, change or modify these terms and conditions, with or without notice to the Client. Such amendments will be made effective for all Clients upon posting of the amended Agreement to this website address, namely www.melanyjane.com. It is the Clients responsibility to familiarise themselves with the terms and conditions contained herein and read this document from time to time.
15. MISCELLANEOUS
15.1 Implementation and Good Faith
15.1.1 Both the Client and Melany Jane undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or be conducive to the giving of effect to the terms, conditions and import of this Agreement.
15.1.2 At all times during the continuance of this Agreement, the Client and Melany Jane shall observe the principles of good faith towards one another in the performance of their obligations in terms of this Agreement. This implies, without limiting the generality of the foregoing, that they –
15.1.2.1 will at all times during the term of this Agreement act reasonably, honestly and in good faith;
15.1.2.2 will perform their obligations arising from this Agreement diligently and with reasonable care; and
15.1.2.3 make full disclosure to each other of any matter that may affect the execution of this Agreement.
15.2 Whole Agreement
These terms and conditions constitute the whole Agreement between the Client and Melany Jane and no agreement, representations or warranties between the Client and Melany Jane, other than those set out herein, are binding on the Client and Melany Jane.
15.3 Conflict of Provisions
In the event of a conflict arising between these Terms and Conditions, and any other terms and conditions whether of the Client or otherwise, the former shall prevail unless expressly otherwise agreed by Melany Jane in writing.
15.4 Breach
In the event of the Client or Melany Jane breaching any of the terms and conditions contained herein, and remaining in breach after receipt of 14 (fourteen) days’ written notice requesting remedy of the breach, then in such an event the other party shall have the right, without prejudice to any of its other rights, to cancel this agreement.
15.5 Costs
All costs, including attorney and own Client costs arising out of any breach of any provisions of this Agreement shall be borne by the grower.
15.6 Severability
15.6.1 If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
15.6.2 If any unlawful and/or unenforceable provision of these terms and conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
15.7 Applicable law
This Agreement shall be governed and interpreted in accordance with the laws of the Republic of South Africa.