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Falstar Media - Essentials Service Agreement

Falstar Media - Service level agreement for digital services.

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Article 1. INTRODUCTION

The Client appoints the Web Developer to render the Development Services described in Article 5 below and the Scope of Work determined by the package selected during the onboarding process.
The Web Developer and the Client have reached agreement on the terms and conditions regulating the provision of the Development Services and wish to reduce the terms of this consensus to writing in the form of this Agreement.

Article 2. INTERPRETATION

This Agreement contains a number of words and phrases which have specific meanings denoted by such words being capitalised.
Headings are for convenience only and are not intended to be used to interpret this Agreement.
If this Agreement refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then this Agreement will also be applicable to, and binding on, that Party’s liquidator or trustee, as the case may be.
Unless this Agreement indicates to the contrary, any references to:
1. any gender includes the other gender;
2. a natural person includes an artificial person and vice versa; and
3. the singular includes the plural and vice versa.
The contra proferentem rule (interpretation against the drafter) shall not apply in the interpretation of this Agreement.
Any approvals or consents required in terms of this Agreement must be in writing and signed by a duly authorised representative of the Party providing such approval or consent.
The use of the word “including” shall not be construed as limiting the generality of any preceding words.
Any reference to “days” shall be understood as calendar days, provided that where the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, the next succeeding Business Day shall apply.
Any reference to a “Business Day” shall mean any day other than a Saturday, Sunday or public holiday in the Republic of South Africa.
Any reference to time shall be construed with reference to South African Standard Time.
All annexures, schedules, addenda and amendments to this Agreement shall be deemed to form part hereof as if specifically incorporated herein.

Article 3. DEFINITIONS

For the purposes of this Agreement, unless the context indicates otherwise:

“Agreement” means this Web Development, Support & Hosting Agreement, including all annexures, schedules, addenda and amendments.
“Bug” means a failure of the Development Services or Website to perform materially in accordance with the specifications of the selected package.
“Bug Fix” means a correction or modification implemented by the Web Developer to address a Bug.
“Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
“Client” means the legal entity or individual entering into this Agreement with the Web Developer, as specified in the onboarding form.
“Code” means the source code, scripts, and technical architecture underlying the Website.
“Commencement Date” means the date on which the Client completes and submits the onboarding form, including the selection of the relevant package and signature at the bottom of the form.
“Confidential Information” means all confidential, proprietary or sensitive information disclosed by one Party to the other, whether oral, written, electronic or otherwise, but excludes information which:
1. is or becomes publicly available without breach of this Agreement;
2. is lawfully received by the receiving Party from a third party not under a duty of confidentiality; or
3. is independently developed by the receiving Party without use of the disclosing Party’s information.
“Development Services” means the web development, hosting, support, and maintenance services provided by the Web Developer in terms of Article 5, as determined by the Client’s package selection and the Quotation.
“Fees” means the amounts payable by the Client to the Web Developer in accordance with Article 6 and the Quotation.
“Intellectual Property” means all text, images, graphics, code, data, software, multimedia, trade names, trade marks, service marks, logos, patents, designs, copyrights, know-how and all other intellectual property rights, whether registered or not.
“Losses” means all damages, liabilities, fines, penalties, costs, expenses and claims of any nature whatsoever.
“Parties” means the Web Developer and the Client, and “Party” shall mean either of them as the context requires.
“Quotation” means the most recent written quotation, proposal, or package selection form issued by the Web Developer and accepted by the Client, which specifies the applicable Fees, package tier, and any agreed variations to the standard Services.
“Web Developer” means Falstar Media CC, a company with registration number 2011/035433/23, duly incorporated in terms of the laws of the Republic of South Africa, with its principal place of business at 50 Silver Ranch, Keurboomsrivier Road, Plettenberg Bay, 6600, email: [email protected], and telephone number: +27 (0)82 763 3478.
“Website” means the website, platform, or online project developed, supported, or maintained by the Web Developer for the Client under this Agreement.

Article 4. DURATION

This Agreement shall commence on the date the Client completes and submits the onboarding form, including the selection of the relevant package and signature at the bottom of the form (“Commencement Date”).
The Agreement shall continue on a month-to-month basis, unless terminated by either Party with not less than thirty (30) days’ prior written notice, or earlier in accordance with the provisions of this Agreement.
Termination of this Agreement shall not affect any rights, obligations, or liabilities which arose prior to the effective date of termination.

Article 5. THE DEVELOPMENT SERVICES

The Web Developer shall provide web development, hosting, support, and maintenance services in accordance with the package tier selected by the Client and described on the Web Developer’s Services Page (https://www.falstarmedia.com/services/), together with any specific inclusions or variations detailed in the Quotation.
The Client acknowledges that the scope of Development Services is determined by the package tier selected at onboarding, and that inclusions may reasonably vary over time to reflect improvements, updates, or industry standards.
The Client further acknowledges that certain functionalities may require the use of third-party software, plugins, or services that are not included under the Web Developer’s agency licences. The Client shall be responsible for acquiring, maintaining, and paying for such third-party licences or services at their own cost.
The Web Developer shall not be held liable for any interruption, suspension, or unavailability of services resulting from the Client’s failure to obtain or renew any required third-party licences or subscriptions.
Any additional services requested by the Client that fall outside the scope of the selected package and Quotation shall be treated as a Service Variation in terms of Article 12 and may incur additional fees.

Article 6. FEES & PAYMENTS

The Client agrees to pay the monthly subscription fees for the selected package as set out in the applicable Quotation or order form. The subscription covers the scope of services described in this Agreement and on the Web Developer’s services page (https://www.falstarmedia.com/services/), subject to any add-ons, third‑party licences, or services that may be billed separately.
All payments are due monthly in advance by the first (1st) day of each month, unless otherwise agreed in writing.
The Client acknowledges that all packages are subscription‑based and are billed on a recurring monthly basis for the duration of the Agreement.
Development of the Client’s website and provision of related services is subsidised by the subscription model. Accordingly, the Client agrees to a minimum initial commitment period of twelve (12) months from the Commencement Date.
In terms of the Consumer Protection Act (CPA), where applicable, the Client may terminate the Agreement early by providing the Web Developer with at least 20 (twenty) business days’ written notice. However, the Web Developer reserves the right to charge a reasonable cancellation penalty, which may include (without limitation):
1. Recovery of upfront development costs subsidised by the subscription;
2. Recovery of any third‑party licence or plugin costs paid on behalf of the Client; and
3. Adjustments to reflect any discounts provided under the subscription model.
The Web Developer reserves the right to review and adjust fees annually, in line with inflation or increased operating costs, subject to a maximum increase of 10% per year. Clients will be notified at least thirty (30) days in advance.
Late payments may, at the Web Developer’s discretion, attract interest at the maximum rate permitted under the National Credit Act. Services (including hosting) may be suspended until payment is brought up to date.
Where fees are quoted in a currency other than South African Rand (ZAR), exchange rate fluctuations and international transaction costs shall be for the Client’s account.
Additional services, Service Variations, and third‑party costs (including premium plugins not covered by the Web Developer’s agency licences) will be invoiced separately and are payable by the Client.

Article 7. BUG FIXES AND UPDATES

The Web Developer shall use reasonable skill and care to identify and correct Bugs reported by the Client during the term of this Agreement, provided that such Bugs fall within the scope of the Development Services and the Client’s selected package.
Bug Fixes shall be prioritised and resolved in accordance with the severity of the issue and the availability of resources, with the Web Developer making reasonable efforts to restore critical functionality as soon as possible.
Routine updates to the Website, including security patches, plugin updates, and content management system upgrades, will be applied as part of the package selected by the Client.
The Web Developer shall not be responsible for:
1. Bugs or errors introduced by third‑party plugins, themes, software, or services not provided under the Web Developer’s agency licences;
2. Bugs caused by modifications, installations, or access by the Client or third parties; or
3. Fixes or updates outside the scope of the Client’s selected package or Quotation, unless agreed as a Service Variation in terms of Article 12.
The Client acknowledges that certain updates, such as major software or plugin upgrades, may cause temporary incompatibilities or require additional development work. Where such work is beyond the scope of the Client’s package, it will be treated as a Service Variation and may incur additional fees.

Article 8. HOSTING, MAINTENANCE & SUPPORT SERVICES

The Web Developer shall provide hosting, maintenance, and support services in accordance with the package tier selected by the Client and as set out in the Quotation. Such services may include, but are not limited to: secure hosting and server management; monitoring and optimisation; backups and recovery; software, plugin, and security updates; SSL management; support via agreed channels; and limited content/design updates as included in the Client’s package.
Hosting and support services are conditional upon: (a) the Client’s account being in good standing; (b) the Client’s compliance with applicable laws and acceptable use standards; and (c) the Client providing necessary access and cooperation.
The Web Developer makes no warranties that hosting services will be uninterrupted, error‑free, or entirely secure, as such services may be affected by third‑party hosting providers, force majeure events, or broader internet infrastructure.
The Web Developer shall not be liable for any Losses, downtime, or data loss arising from: (a) failures of third‑party hosting providers, internet infrastructure, or utilities; (b) security breaches caused by weak Client passwords or negligent security practices; (c) the Client’s use of unlicensed, outdated, or incompatible third‑party plugins/themes/software; (d) suspension/termination due to late or non‑payment; or (e) circumstances beyond the Web Developer’s reasonable control.
Backups will be performed as included in the Client’s selected package. Backups are a risk‑reduction measure, not a guarantee against all forms of data loss. The Client remains ultimately responsible for independently backing up critical business data.
The Client acknowledges that hosting, maintenance, and support are ongoing services billed monthly (unless otherwise agreed). If such services are suspended or cancelled, the Client’s website and related services may become unavailable.

Article 9. QUALITY OF SERVICES

The Web Developer shall perform the Development Services with reasonable skill, care, and diligence, in accordance with generally accepted industry practices and standards applicable to web development, hosting, and support.
The Web Developer shall make reasonable efforts to ensure that the Website and related services perform substantially in accordance with the scope defined in the Client’s selected package and Quotation.
The Client acknowledges that: (a) no website, hosting environment, or digital service can be guaranteed to be completely error‑free, secure, or available at all times; (b) system performance may be affected by factors outside the Web Developer’s control; and (c) the Web Developer’s obligation is to exercise due skill and care, not to warrant perfect or uninterrupted performance.
Any warranties, conditions, or representations not expressly stated in this Agreement are excluded to the fullest extent permitted by law.

Article 10. CLIENT RESPONSIBILITIES

The Client shall provide all necessary information, materials, and approvals required for the proper performance of the Development Services in a timely manner.
The Client warrants that all content and materials it provides do not infringe third‑party rights and comply with applicable laws, including intellectual property, data protection, and consumer protection laws.
The Client remains responsible for the accuracy, quality, and legality of all content uploaded to or displayed on the Website.
The Client shall maintain its own backups of content and data where such backups fall outside the scope of the Web Developer’s hosting and maintenance services.
The Client shall not use the Website or Development Services for any unlawful purpose, including distributing malicious code, engaging in fraudulent or misleading activity, or infringing the rights of others.
The Client may access and use the Website backend (including adding/editing content, media, and products) without prior approval. However, the Client acknowledges and agrees that: (a) any customisations, installations, or code changes made by the Client or third parties are at the Client’s own risk; (b) the Web Developer shall not be liable for errors, vulnerabilities, downtime, or performance issues arising from such changes; (c) remedial work to restore functionality will be treated as a Service Variation under Article 12 and billed at standard rates; and (d) the Client remains responsible for ensuring that any content uploaded complies with applicable laws and hosting limitations.

Article 11. INTELLECTUAL PROPERTY

Client Materials: All Intellectual Property provided by the Client to the Web Developer, including but not limited to text, images, branding, logos, and trademarks, shall remain the sole and exclusive property of the Client. The Client warrants that it has all necessary rights, licences, and permissions to provide such materials for use in connection with the Development Services.
Developer Materials: All proprietary tools, frameworks, code libraries, plugins, themes, templates, methodologies, know-how, and processes developed or owned by the Web Developer prior to, or independently of, this Agreement (“Developer Materials”) shall remain the sole property of the Web Developer.
Website Deliverables: Upon full payment of all Fees due under this Agreement, the Client shall be granted ownership of the completed Website design, layout, and content created specifically for the Client, excluding:
1. Developer Materials (as defined in 11.2);
2. third-party software, plugins, or licences, which shall remain subject to their own licence terms; and
3. any work not yet paid for in full.
Licence to Developer Materials: To the extent that Developer Materials are incorporated into the Website, the Web Developer grants the Client a non-exclusive, non-transferable licence to use such Developer Materials solely for the purpose of operating the Website, for as long as the Client remains in good standing under this Agreement.
Third-Party Intellectual Property: The Client acknowledges that certain functionalities may require the use of third-party software, plugins, or services. The Client shall be responsible for complying with all applicable third-party licence terms and for paying any related fees not covered by the Web Developer’s agency licences.
Retention of Rights: The Web Developer reserves the right to:
1. reuse general skills, know-how, ideas, concepts, and techniques developed in the course of providing the Development Services; and
2. showcase the completed Website or elements thereof in its portfolio, marketing materials, and case studies, provided that no confidential information of the Client is disclosed.
Agency Licences upon Termination: Where the Website makes use of plugins, themes, or software covered under the Web Developer’s agency licences, the Client acknowledges that such licences are provided only for the duration of this Agreement. In the event of termination, the Client shall be responsible for purchasing and maintaining its own valid licences directly from the third-party providers in order to ensure continued functionality of the Website.

Article 12. SERVICE VARIATIONS & ADDITIONAL WORK

Any services requested by the Client that fall outside the scope of the selected package and Quotation shall be treated as Service Variations.
Service Variations may include, without limitation:
1. additional functionality or features not included in the Client’s package;
2. design or development changes requested after approval of deliverables;
3. integration with third-party systems, plugins, or APIs not included in the package;
4. major version upgrades of platforms, frameworks, or plugins requiring redevelopment work;
5. recovery or repair work required due to unauthorised changes made by the Client or third parties;
6. requests for urgent or out-of-scope support beyond the standard support terms.
All Service Variations shall be documented and communicated to the Client, together with an estimate of additional Fees and timelines, before work commences.
The Client shall be liable for all additional Fees associated with Service Variations. Such Fees shall be invoiced separately or added to the next billing cycle, as agreed between the Parties.
No Service Variations shall be binding on the Web Developer unless confirmed in writing.

Article 13. CONFIDENTIALITY

Each Party (“Receiving Party”) undertakes to keep confidential all Confidential Information disclosed by the other Party (“Disclosing Party”) in connection with this Agreement, whether in writing, electronically, orally, or otherwise.
The Receiving Party shall not disclose, copy, or use the Disclosing Party’s Confidential Information for any purpose other than the proper performance of this Agreement, without the prior written consent of the Disclosing Party.
The obligations in this Article shall not apply to information which:
1. is or becomes publicly available through no fault of the Receiving Party;
2. was lawfully known to the Receiving Party prior to disclosure;
3. is lawfully received from a third party not under a duty of confidentiality; or
4. is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
The Receiving Party may disclose Confidential Information where required by law, regulation, or court order, provided that (where legally permitted) it gives the Disclosing Party prompt notice of such requirement and cooperates in any effort to seek protective measures.
The Parties agree to take reasonable measures to protect the confidentiality of all Confidential Information, including restricting access to employees, contractors, or agents who need to know such information and are bound by equivalent confidentiality obligations.
These confidentiality obligations shall survive termination of this Agreement for a period of three (3) years, or for as long as the Confidential Information remains confidential, whichever is longer.

Article 14. DATA PROTECTION & PRIVACY

Each Party shall comply with all applicable data protection and privacy laws, including but not limited to POPIA, GDPR, and any other applicable legislation.
The Client acknowledges that, in providing the Development Services, the Web Developer may process certain Personal Information on behalf of the Client, including but not limited to customer details, contact information, and user data.
The Web Developer shall:
1. process Personal Information only as necessary for the proper performance of this Agreement and in accordance with the Client’s lawful instructions;
2. implement reasonable technical and organisational measures to safeguard Personal Information against accidental or unlawful destruction, loss, alteration, unauthorised disclosure, or access;
3. not share Personal Information with any unauthorised third parties without the Client’s prior written consent, unless required by law;
4. ensure that its employees, agents, or subcontractors who may process Personal Information are subject to equivalent confidentiality and data protection obligations.
The Client shall:
1. ensure that it has obtained all necessary consents and authorisations from data subjects;
2. remain responsible for the lawfulness, accuracy, and integrity of all Personal Information it provides;
3. indemnify and hold harmless the Web Developer against any claims, fines, or penalties arising from the Client’s failure to comply with applicable data protection laws.
The Parties agree to cooperate in good faith to address any data subject rights requests, regulatory inquiries, or security incidents relating to Personal Information processed under this Agreement.
These obligations shall survive termination of this Agreement for as long as either Party continues to process Personal Information obtained during the term of this Agreement.

Article 15. LIMITATION OF LIABILITY

To the fullest extent permitted by law, the Web Developer shall not be liable to the Client for any indirect, incidental, special, punitive, or consequential damages, including but not limited to loss of profits, revenue, business opportunities, goodwill, data, or anticipated savings.
The Web Developer’s total aggregate liability to the Client for any and all claims shall not exceed the total Fees actually paid by the Client in the three (3) months immediately preceding the event giving rise to the claim.
The Web Developer shall not be liable for any Losses arising from:
1. the Client’s failure to perform its obligations under this Agreement;
2. unauthorised modifications, installations, or access by the Client or third parties;
3. the Client’s failure to obtain or maintain required third-party licences;
4. downtime, interruptions, or failures caused by third-party providers, connectivity, or utilities;
5. security breaches, data loss, or service interruptions caused by weak Client passwords, negligent practices, or failure to follow recommendations.
Nothing in this Agreement shall exclude or limit liability for:
1. death or personal injury caused by a Party’s gross negligence or wilful misconduct;
2. fraud or fraudulent misrepresentation; or
3. any other liability which cannot lawfully be excluded or limited.

Article 16. INDEMNITIES

The Client indemnifies and holds harmless the Web Developer, its directors, employees, contractors, and agents from and against any and all claims, damages, liabilities, costs, fines, penalties, and expenses (including reasonable legal fees) arising out of or in connection with: (a) any content or Intellectual Property supplied by the Client (including infringement of third‑party rights); (b) the Client’s failure to comply with applicable laws (including data protection and consumer protection laws); (c) the Client’s use or misuse of the Website or Development Services; (d) unauthorised modifications, integrations, or access by the Client or third parties; and (e) any breach by the Client of this Agreement.
If any third party makes a claim covered by this indemnity: (a) the Web Developer shall promptly notify the Client (to the extent legally permissible); (b) the Client shall assume and control the defence at its own cost using counsel reasonably acceptable to the Web Developer; and (c) the Web Developer shall provide reasonable assistance at the Client’s expense, provided such assistance does not materially interfere with the Web Developer’s operations.
The Client shall not settle any claim in a manner that imposes any admission of liability, obligation, or restriction on the Web Developer without the Web Developer’s prior written consent.

Article 17. TERMINATION

This Agreement shall continue on a month‑to‑month basis after the initial twelve (12) month minimum commitment period, unless terminated by either Party in accordance with this Article.
The Client may terminate this Agreement by: (a) giving at least 20 (twenty) business days’ written notice, subject to payment of any reasonable cancellation penalty as outlined in Article 6.5; or (b) electing not to renew after the expiry of the initial twelve (12) month minimum term, in which case no penalty shall apply.
The Web Developer may terminate this Agreement with immediate effect if the Client: (a) commits a material breach and fails to remedy such breach within ten (10) business days of written notice; (b) fails to make timely payments; or (c) engages in unlawful, fraudulent, or abusive practices relating to the services.
Upon termination for any reason: (a) hosting, support, and maintenance services will cease; (b) all licences or benefits provided under the Web Developer’s agency licences shall immediately terminate, and the Client shall be responsible for securing its own licences for any third‑party plugins, themes, or software; and (c) the Web Developer reserves the right to withhold transfer of website files or credentials until all outstanding amounts have been settled in full. Upon request and subject to payment of all outstanding amounts, the Web Developer will provide a backup of the Website content and data in a commercially reasonable format.
Termination shall not affect any accrued rights, obligations, or liabilities of either Party up to the effective date of termination.

Article 18. FORCE MAJEURE

Neither Party shall be liable for any failure or delay in performing its obligations (other than payment obligations) if such failure or delay results from an event of Force Majeure.
Force Majeure includes, without limitation: acts of God; natural disasters; fires, floods, storms, earthquakes; war, terrorism, civil unrest, strikes; epidemics/pandemics; power outages, load‑shedding, failures of utilities/telecommunications/internet infrastructure; and governmental actions or restrictions.
The affected Party shall: (a) promptly notify the other Party in writing of the Force Majeure event and its anticipated impact; and (b) use reasonable efforts to mitigate the effects and resume performance as soon as reasonably possible.
If a Force Majeure event continues for more than sixty (60) consecutive days, either Party may terminate this Agreement on written notice without liability, provided the Client remains liable for all Fees accrued up to the effective termination date.

Article 19. DISPUTE RESOLUTION

The Parties shall use their best efforts to resolve any dispute, controversy, or claim arising out of or in connection with this Agreement through good‑faith negotiations.
If the dispute cannot be resolved within fourteen (14) days, either Party may refer it to confidential mediation, to be conducted in Plettenberg Bay, South Africa, or another location (including virtual) agreed by the Parties. Costs of mediation shall be shared equally.
If not resolved by mediation within thirty (30) days, either Party may refer the matter to the courts of competent jurisdiction in South Africa, subject to Article 20.
Nothing in this Article prevents either Party from seeking urgent interim relief from a court of competent jurisdiction where necessary to protect its rights.

Article 20. GOVERNING LAW & JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
Subject to Article 19 (Dispute Resolution), the Parties submit to the exclusive jurisdiction of the courts of South Africa for disputes or claims relating to this Agreement.
Nothing prevents the Web Developer from seeking injunctive or equitable relief in any jurisdiction where the Client or its assets are located, where such action is necessary to protect the Web Developer’s Intellectual Property or enforce its rights.

Article 21. GENERAL / MISCELLANEOUS

Entire Agreement. This Agreement, together with the Quotation and any referenced policies (including the Web Developer’s Terms of Service and Privacy Policy), constitutes the entire agreement between the Parties and supersedes all prior discussions or understandings.
Amendments. No amendment or variation shall be valid unless made in writing and signed by both Parties; provided that the Web Developer may update its Terms of Service and Privacy Policy from time to time by providing notice and a link to the updated version to the Client.
Assignment. The Client may not assign or transfer its rights or obligations without the Web Developer’s prior written consent. The Web Developer may assign or subcontract portions of the services, remaining responsible for performance.
No Partnership or Agency. Nothing creates a partnership, joint venture, or employment relationship between the Parties. Neither Party may bind the other except as expressly provided.
Notices. Notices shall be in writing and delivered by email to the addresses specified in the Quotation (or as updated). Notices are deemed received on the date of transmission, provided no bounce‑back or delivery failure is received.
Severability. If any provision is found invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Waiver. No failure or delay to exercise any right or remedy constitutes a waiver unless expressly confirmed in writing.
Counterparts / Electronic Signature. This Agreement may be executed electronically, including via digital signature tools or online form submission, and may be signed in counterparts, each deemed an original and together constituting one instrument.

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