MISTER WALKER PTY LTD

Standard Terms & Conditions

NOTE:

3.2.3 Checking and Approval of Proofs and Samples
3.2.5 Copyright
3.2.9 Storage & Archiving

1. SCHEDULE OF PROFESSIONAL SERVICES

1.1. STANDARD SCOPE OF THE WORK

1.1.1 STAGE 1 – DESIGN CONCEPT

Receive, appraise and report on the Client’s requirements (develop the Brief).
Advise on, appoint and co-ordinate consultants and service providers on behalf of the Client.
Advise the Client on procedures including design, cost and contracting processes.
Preparation of design to a conceptual level showing design intent, standards of materials and suitability of services.
Advise the Client on project feasibility including estimated cost and program.
Confirm Client’s approval of the design concept & cost structure.

1.1.2 STAGE 2 – FINALIZATION

Develop the design sufficiently to inform the Client as to design intent.
Presentation of Quotation (valid for 30 days)
Acceptance of Quotation
Client may be required to pay a deposit.
Coordinate consultants and service providers.
Review the budget and time schedule.
Confirm approval of the developed design and instructions to proceed in writing.
Orders to be placed.

1.1.3 STAGE 3 – COMPLETION

Administer the contract through liaison and facilitation meetings.
Proof confirmations and instructions.
Client to pay in full prior to delivery, placement or shipping.
Delivery of finished work to the Client

1.2. SUPPLEMENTARY SERVICES

All supplementary services shall be charged for on an hourly basis and shall particularly apply where in the sole and absolute discretion of Mister Walker the Client has varied his brief or delays occur or changes are required which are not occasioned by any act or omission on the part of Mister Walker.
Kindly note that any discounted amounts (howsoever obtained) shall not affect Mister Walker’s fee.

2. DISBURSEMENTS

In addition to the fees stated above the following costs incurred in connection with the work shall be reimbursed to Mister Walker by the Client :

2.1 Printing, reproduction and, photocopies (at current commercial rates).
2.2 Models, photographs including progress photographs necessary for administering the project.
2.3 Telephone (including cellphone) calls, e-Mails and faxes
2.4 Postage, freight and courier charges
2.5 Road travelling expenses charged at the current AA rates.
2.6 Line items will be charged out at suppliers invoice rate.
2.7 In accordance with the prevailing fee guidelines for outwork in accordance with nationally recognised Communication Agencies – Mister Walker will add a flat fee of 25% (gross to net 20%) to all outwork unless otherwise negotiated (with client)
2.8 Others as agreed.

2.4. TERMS AND CONDITIONS OF PAYMENT

Mister Walker shall be entitled to render accounts and be paid on presentation the fees charged and disbursements incurred by him for any standard or supplementary services involved in the work.

2.4.1 The Client undertakes to pay Mister Walker’s account as follows :
(i) A deposit (if any) on account of the work to be performed and the services to be rendered.
(ii) The full balance then remaining prior to delivery, placement or shipment.
2.4.2 The Client will pay the deposit and balance referred to in clauses 1.1.2 and 1.1.3 (above) as well as any and all other amounts owed to Mister Walker from time to time into the following banking account:
Name: MISTER WALKER PTY LTD
Bank: STANDARD BANK OF SOUTH AFRICA LTD
Branch: KINGSMEAD (DURBAN)
Account No.: 240 263 650
Branch Code: 040 127
2.4.3 All accounts are payable strictly on presentation and the Client shall accordingly not have the right to withhold payment or any part thereof on the basis of set-off or for any other reason whatsoever. Mister Walker reserves to himself the right to suspend the work without notice to the Client in the event of non-payment.
2.4.4 Interest shall be charged at 2.5% per month on all overdue accounts.
2.4.5 Delays occasioned by late payments are not the responsibility of Mister Walker.
2.4.6 VAT is levied on all charges, fees and disbursements.
2.4.7 A certificate purporting to be signed by or on behalf of Mister Walker (it not being necessary for Mister Walker to prove the appointment or authority of the person signing such certificate) specifying the amount due to him by the Client including, if applicable, interest and the amount and the rate thereof and the period for which it is payable and further stating that the same is due, owing and payable by the Client to Mister Walker shall be prima facie proof of all matters contained therein including the amount and validity of such indebtedness and the fact that the same is due, owing and payable and shall be prima facie proof of and entitle Mister Walker to obtain provisional sentence, summary judgment or default judgment thereon under this document.
2.4.8 The Client hereby renounces all benefits arising from the legal exceptions non numeratae pecunia, non causa debiti, errore calculi, and beneficium excessionis et divisionis with the force and effect of which they hereby declare themselves to be fully acquainted.
2.4.9 The Client is liable for all untaxed legal costs, charges, collection commission, interest and expenses of whatsoever nature and without limitation calculated on the scale as between attorney and client which Mister Walker incurs in enforcing his rights in terms hereof irrespective of whether any action has actually been instituted.

3. CONDITIONS OF CONTRACT

3.1 CLIENT’S REQUIREMENTS

3.1.1 The Client shall clearly and timeously specify his requirements and provide Mister Walker with all relevant information on the project.
3.1.2 The Client shall, when requested to do so, promptly make decisions and provide Mister Walker with instructions as this will assist Mister Walker in the timeous completion of the work undertaken in terms hereof.
3.1.3 Mister Walker can under the circumstances not be held liable for any loss or damages, be it direct or indirect, which may be suffered by the Client due to work not having been completed timeously, particularly in circumstances where the Client has failed to furnish all necessary information required for the completion of work.

3.2 LIMITS TO MISTER WALKER’S RESPONSIBILITY

3.2.1 Consultanting / Design and Supply Services

3.2.1.1 Although paid by Mister Walker, Consultants and suppliers shall remain liable to the Client for their services.
3.2.1.2 The Client hereby waives any and all rights which he may have against Mister Walker in respect of any loss or damage the Client may sustain through any cause whatsoever such as, but not limited to, negligence, delay, error or omission on the part of Mister Walker or any other person appointed by him in terms hereof.
3.2.1.3 Unless specifically stipulated to the contrary herein :
(i) time shall never be of the essence in respect of the completion of any work undertaken by Mister Walker on behalf of the Client;
(ii) the Client acknowledges and understands that any reference which may at any time be made by Mister Walker in this regard must be regarded merely an approximation;
(iii) the work to be undertaken by Mister Walker in terms hereof will be executed only during normal working hours and all overtime required will be charged for separately.

3.2.2 Failure of Materials

Mister Walker cannot be held responsible for the failure of any material, system or workmanship to perform in accordance with the claims of any of the manufacturers, suppliers or agents appointed hereunder.

3.2.3 Checking and Approval of Proofs and Samples

3.2.3.1 The checking and approving of proofs and samples by Mister Walker is purely precautionary and relates only to design intent.
3.2.3.2 As a result, the Client does not relieve the manufacturer or supplier of responsibility for any errors or defects (whether latent or patent) in the work supplied in terms hereof.

3.2.4 Delivery & Risk

3.2.4.1 Risk in and to the work shall pass to the Client on delivery provided that Mister Walker has received full payment of all the fees and disbursements due to him.
3.2.4.2 The Client will, unless specifically agreed to the contrary in writing, be required to accept and receive delivery of the work from Mister Walker’s business premises.
3.2.4.3 In the event of Mister Walker specifying an alternative place or method of delivery, the Client will be liable for any and all costs and charges occasioned thereby.

3.2.5 Copyright

3.2.5.1 Copyright over all the work such as but not limited to conceptual work, designs, drawings and the like including photographic and publishing rights will remain the property of Mister Walker and any provision to the contrary in terms of the Copyright Act No.63 of 1965 or any other legislation is hereby specifically excluded.
3.2.5.2 The Client hereby acknowledges and confirms that :
(i) any payment made by him hereunder will not affect Mister Walker’s ownership of or any Copyright held in or to the work;
(ii) the copyright in and to and ownership of any portion of the work which may have been outsourced such as, but not limited to, photographs, illustrations, copy (text) or images shall remain with the photographers, illustrators, or authors who created or produced them.
3.2.5.3 Mister Walker reserves the right to cede, assign and make over unto and in favour of the Client any and all rights which he may have in the work on delivery thereof provided that the Client has paid all fees and disbursements due to Mister Walker in respect thereof.
3.2.5.4 Mister Walker shall however be entitled to at any stage make use of any part of the work which does not form part of or is not included in the delivered work and/or is not intended to be used by the Client for a particular project and the Client shall have no claim of whatsoever nature against Mister Walker for any subsequent use by him of that work.
3.2.5.5 The Client shall accordingly and notwithstanding anything to the contrary contained herein, only be entitled to receive delivery of the final physical hard copy of the work executed or produced by Mister Walker in terms hereof and accordingly all work in progress, alternative solutions and generally anything else that might have been used in the preparation of such final copy shall remain the sole and exclusive property of Mister Walker and the Client shall at no time have any claims of whatsoever nature in respect thereof.

3.2.6 Frustration of Performance

3.2.6.1 Should Mister Walker at any time during the currency of this agreement be delayed or prevented from performing any of his obligations hereunder for reasons beyond his control, such as, but not limited to, strikes, shortened working hours, shortage of labour or materials, accidents of any kind, any default or delay by any sub-contractor or supplier, war, political or civil disturbances or unrest, or Vis Major, then Mister Walker shall be relieved of all his obligations to perform such work until such time as the intervening circumstance abates.
3.2.6.2 The Client will be notified in writing of the existence of any such intervening circumstance as well as of the cessation thereof and Mister Walker will use his best endeavours to remove any such impediment as soon as is reasonably possible.
3.2.6.3 The Client acknowledges that :
(i) the completion of the work is almost invariably dependent on and inextricably bound to the availability of goods, services or materials to be provided by the persons appointed by Mister Walker for those purposes;
(ii) he is bound by any agreement Mister Walker has entered into with any such person for the work.

3.2.7 Notification of Defects

3.2.7.1 The Client shall within 3 days of delivery to him of the work inform Mister Walker of any defects therein and the rectification required thereto, failing which same shall for all intents and purposes be deemed to have been satisfactorily completed and to accord with the Client’s instructions and brief.
3.2.7.2 In the event of the Client at any stage expressing the opinion that the work does not necessarily achieve his brief or instructing Mister Walker to suspend or terminate the work after Mister Walker has unsuccessfully attempted to assist the Client to reach a solution, Mister Walker shall in his sole and absolute discretion have the right to require the Client to either pay :
(i) the full amount due for the work; or
(ii) a rejection fee equivalent to 70% (SEVENTY PERCENTUM) of the total contract price together with all disbursements which have been made as at that date.

3.2.8 Limitation of Liability

Neither Mister Walker nor any of his officers, employees, representatives or agents shall at any time be liable for any loss or damage howsoever suffered by the Client, whether direct, indirect, consequential or otherwise arising from any cause in connection with the work, whether such loss or damage results from any breach of contract, delict, negligence of any degree or any other cause without limitation.

3.2.9 Storage & Archiving

It is a material term and condition of this agreement which goes to the root and forms the basis hereof that :
3.2.9.1 Mister Walker shall not be under any duty or obligation to, at any time, store, retain or otherwise archive any of the work delivered to the Client whose responsibility it shall remain from the date of delivery to him of the work in question.
3.2.9.2 The Client agrees to pay Mister Walker’s reasonable costs and charges should it at any stage and for whatever reason be necessary for Mister Walker to provide either the Client or any other person with an additional copy of the work.

3.3 EMPLOYMENT OF CONSULTANTS

Where specialised advice or services are required for the work consultants shall be selected by, fall under the direction of and be appointed by Mister Walker on behalf of the Client. The Client shall be responsible to Mister Walker for the payment of all such consultants’ fees which shall be set out in Mister Walker’s account.

3.4 WITHHOLDING OF FEES

The Client may not under any circumstances withhold any payment or part thereof which is due to Mister Walker for the work. Should the Client allege the existence of a claim against Mister Walker, an agent or any other party involved in a particular project, such claim shall be dealt with separately and on its own merits by way of separate action.

3.5 SPECIALIST SERVICES

3.5.1 Specialist services are defined as all services that fall outside of Mister Walker’s area of expertise (“outwork”) such as but not limited to printing, photography, digital technologies, manufacturing, electrical and mechanical installations, and which attract the 25% (TWENTY-FIVE PERCENTUM) mark up referred to in sub-paragraph 2.7 (above).
3.5.2 Mister Walker will recommend consultants and specialists to the Client to undertake such services and these costs, although paid for by Mister Walker, will be borne by the Client.
3.5.3 Mister Walker accepts no responsibility whatsoever for any failure of such service nor for any loss or damage which the Client may suffer arising from such failure due to any negligence of any kind, delay, error or omission on the part of any person / specialist hired to perform or provide such service, nor for any person directly employed by Mister Walker where this work can be defined as falling into this category and therefore outside of the scope of Mister Walker’s area of expertise.

3.6 SUSPENSION / RESUMPTION OF THE PROJECT

In the event of the Client at any time instructing Mister Walker to suspend work on the project the Client shall forfeit all amounts already paid as rouwkoop or a genuine pre-estimate of the damages suffered by Mister walker as a result thereof alternatively become liable for payment of the Rejection Fee referred to in sub-paragraph 3.2.7.2 (ii) (above).

3.7 TERMINATION

This agreement may be terminated at any time by either party giving the other 30 days written notification thereof in accordance with clause 3.8 (below).
3.7.1 Termination by the Client: All outstanding fees and disbursements due to Mister Walker shall immediately become due and owing and be paid by the Client together with a cancellation fee calculated at 20% (PERCENTUM) of the overall project fee.
3.7.2 Termination by Mister Walker: The Client will only be responsible for the payment of all fees and disbursements incurred by Mister Walker in respect of services rendered up to and including the date of notice of termination.

3.8 DOMICILIUM

3.8.1 The addresses given for the parties herein shall for all purposes under this agreement, including the giving of any notice and the service of any legal process, be their chosen domicilia citandi et executandi.
3.8.2 Any notice sent by either party in terms hereof shall be deemed to have been received by the addressee :
(i) 96 (NINETY-SIX) hours after the date of posting if sent by pre-paid registered post;
(ii) 7 (SEVEN) days after the date of its posting if sent by ordinary post;
(iii) on the date of delivery if delivered by hand;
(iv) on the date of transmission if sent by e-mail.

3.9 NON-FINANCIAL DISPUTES OR DIFFERENCES ARISING OUT OF THIS AGREEMENT

3.9.1 All non-financial disputes shall be referred to arbitration at the request of either party, the intention being to resolve the dispute in question as expeditiously and inexpensively as possible.
3.9.2 The arbitration shall be held in Durban and the arbitrator shall be appointed by the Chairman of the Association of Arbitrators.
3.9.3 Legal representation shall be allowed and the arbitrator’s ruling shall be final and binding on both parties.

3.10 LAW OF THIS AGREEMENT

It is agreed between the parties to this agreement that the law of the Republic of South Africa shall be applicable to this agreement.

3.11 JURISDICTION FOR ALL OTHER DISPUTES OR DIFFERENCES ARISING HEREFROM

The parties hereby confirm that this agreement shall, for all purposes, be deemed to have been concluded in Durban and by their signatures hereto they specifically consent to :
(i) the Durban Magistrate’s Court having jurisdiction under Sections 28 and 45 of the Magistrate’s Court Act No. 32 of 1944, as amended, notwithstanding that such proceedings may otherwise be beyond its jurisdiction, and
(ii) the High Court of South Africa KwaZulu-Natal Durban having the necessary jurisdiction to hear and determine any matter arising herefrom should either party exercise their option to institute proceedings out of this Court.

3.12 ENTIRE AGREEMENT

This agreement, including any annexures hereto, constitutes the whole agreement between the parties and any variation hereof shall have no force or effect unless reduced to writing and signed by both parties.

3.13 MISTER WALKER’S SUPPLIERS

Mister Walker reserves the right to appoint and use the consultants, agents and suppliers of his choice in the manufacture or procurement of the goods or services comprising the work required by the scope of the Client’s brief.

3.14 OWNERSHIP OF GOODS

All goods purchased or ordered by Mister Walker on behalf of the Client, shall remain the property of Mister Walker until such time as the Client has paid Mister Walker in full.

3.16 INDULGENCE

The parties hereby acknowledge that in the event of either of them at any stage granting to the other an indulgence, extension of time or concession for the performance of any term of this Agreement, same shall not in any way prejudice or constitute a waiver of any of their rights to insist at any time thereafter on specific performance of any or all the terms of this Agreement.

3.17 VARIATION

3.17.1 This Agreement constitutes the entire contract between the parties and any acts, representations, announcements, statements, warranties, guarantees or conditions not recorded herein shall be of no force or effect whatsoever, the Client acknowledging that neither Mister Walker nor any person acting on his behalf has made any representation, announcement, statements or warranties inducing the conclusion of this Agreement. In particular, the Client shall have no claim whatsoever against Mister Walker in respect of any statement or representation relating to the work or as to any matter or thing arising in any negotiations prior to the conclusion of this Agreement.
3.17.2 No amendments to or variations of this Agreement shall be binding unless reduced to writing and signed by the parties.

3.18 BREACH

3.18.1 In the event of the Client failing to pay any amounts due in terms of this agreement or sign or deliver any document or furnish information after having been requested to do so or generally committing a breach of any of the other provisions of this agreement, Mister Walker shall be entitled to give written notice requiring the Client to make such payment, furnish such information, deliver or sign such documents or to remedy such breach within SEVEN (7) days after receipt of such notice;
3.18.2 Should the Client remain in default after the expiration of such 7 (SEVEN) day notice period Mister Walker shall at his sole discretion and without prejudice to any of his other rights in law, be entitled notwithstanding any other provisions in this agreement to either :
(i) claim specific performance and enforce the terms of this Agreement and/or to declare the full amount then owed by the Client together with all other amounts referred to herein to be immediately due, owing and payable; or
(ii) cancel this agreement forthwith and without further notice claim and recover damages from the Client.
3.18.3 Any such action shall be without prejudice to Mister Walker’s rights to claim damages.
3.18.4 If Mister Walker is holding any amounts by way of a deposit or on account he is hereby irrevocably and unconditionally authorized and instructed by the Client to off set such funds against the amount then due to him.
3.18.5 In the event of it becoming necessary for Mister Walker to instruct Attorneys to take any form of legal action to give effect to the provisions of this agreement, then the parties agree that he will be entitled to:
(i) proceed out of any Court having the requisite jurisdiction;
(ii) an order for legal costs calculated on the Attorney and own client scale.