3. HAIMSA IT’s Hosting Terms
These General Terms govern the contractual relationship between us, duly supplemented by the Specific Terms.
Unless expressly provided to the contrary in our Hosting Terms, if there is a conflict in meaning, the following precedence ranking will apply (from highest to lowest):
ii. these General Terms;
v. other policies that may be introduced by us from time to time which we notify you of;
vi. any documents incorporated by reference in this Agreement.
4. Amendments to Our Hosting Terms
4.1 HAIMSA IT reserves the right to make changes to Our Hosting Terms at any time without notice. An updated version of our Hosting Terms will be posted on the Website.
4.2 It is your responsibility as a diligent user to check any amended Hosting Terms posted on the Website.
4.3 If you object to any amended Hosting Terms, you are entitled to terminate your relationship with us under clause 14.
5. Customer Status
5.1 The Customer may be an incorporated entity (such as a company or close corporation), trust, partnership, or individual.
5.2 If a person enters into the Agreement:- in a representative capacity on behalf of a Customer who is an incorporated entity;
5.2.1 on behalf of an unincorporated entity; or
5.2.2 in any other representative capacity recognised in South African law,the person warrants that:- they are legally authorised to do so and indemnifies HAIMSA IT against any loss or damage that we may sustain resulting from the person’s lack of authority; and- all the information supplied to HAIMSA IT at any time relating to the entity, trust, partnership, association or other person who they represent is true, accurate, and complete.
5.3 We reserve the right to treat all misrepresentations by you or the person representing you as fraud and the person indemnifies us against any loss or damage that we may sustain resulting from the person’s lack of authority.
5.4 If we discover that you have fraudulently contracted to receive Services or that your representative has contracted without contractual capacity to do so, we may end the Hosting Terms or Services immediately without any further notice to you and you may not claim any restitution or refund of any amount you have already paid, regardless of whether you have used the Services or not.
5.5 When requested, you must give us sufficient proof of the authority of the person who takes any action or executes documents on your behalf for this Agreement. This includes providing proof that the authorised signatory of your bank account has permission to debit your account.
5.6 If there is a dispute between individuals or entities you are involved with (including partners, shareholders, trustees, employees), we may act on the representation of a person claiming to be duly authorised to represent you, without having to independently verify the authority.
5.7 You indemnify us from any action or inaction based on the representation in 5.6. If however we ask you to give HAIMSA IT independent verification of the authority of any individual, you must provide it to us in a format we find reasonably acceptable.
6. Commencement and Duration
6.1 Your application is an offer by you to accept Services from HAIMSA IT. The terms relating to the acceptance of the offer are as follows:- Although the website is configured to confirm receipt of any offer (“Confirmation”), technical or other problems may delay or prevent the Confirmation.
6.1.1 We will only have accepted your offer once you have received confirmation.
6.1.2 Although the website is configured to confirm receipt of any offer (“Confirmation”), technical or other problems may delay or prevent the Confirmation.
6.1.3 You must contact us if you do not receive Confirmation from us within a reasonable time period.
6.1.4 Confirmation will not mean that a transaction has been concluded. It merely confirms that we have received the application.
6.1.5 You can accept that we have sent confirmation to you as soon as this is reflected in our log files.
6.2 We will conclude the agreement in Lenasia South, Johannesburg, Gauteng.
7. Service fees
7.1 You must pay all service fees, as soon as they become due.
7.2 You must pay the service fees, according to the frequency of payment you select, as described on the website.
7.3 Where applicable, we will give you a VAT invoice in electronic format. You agree that by submitting an application form to us when making application for Services, that the application is seen as your confirmation to accept electronic invoices for claiming input tax.
7.4 You must pay the service fees by debit order. You authorise us to make the necessary transfers from your designated bank account at the beginning of the month as per your preferred frequency of payment for the duration of Our Hosting Terms. You must put the debit order in place within seven days of the Commencement Date. A rejected debit order will accrue a handling fee, per rejection.
7.5 We reserve the right to amend or vary the service fees and any amendment or variation of the service fees will be seen as an amendment of Our Hosting Terms. If we amend the service fees, HAIMSA IT will give you at least 30 days prior notice. If you object to any amended service fees, you may terminate your relationship with us under clause 14.
7.6 You will not withhold any payment of any amount you owe us for any reason, (except for an actual breach by HAIMSA IT of Our Hosting Terms). In addition, you may not demand any discount, refund (other than under clause 7.9), or reduction in respect of any service fees you owe us.
7.7 The service fee includes value added tax. You agree to pay any increase in Value Added Tax.
7.8 Additional service fees may incude but not be limited to website support fees, server support fees, remote desktop service fees, call out fees, travel fees, email support fees, email maintenance fees, email setup fees, etc. shall be billed at the prescribed and current hourly rate or per kilometer rate. These rates are made available on the website under the respective services.
7.9 You may terminate the Service within:- seven days after the Commencement Date if you decide not to continue subscribing to the Service; or within 30 days after the Commencement Date if we fail to meet the service levels for hosting services and email services as specified in the Specific Terms, provided that you exercise your right to end the agreement by giving us notice by email to email@example.com. If you terminate the Service for one of the above reasons, HAIMSA IT will refund you any service fees. However you are still liable for any third party costs incurred during this period e.g. domain registration costs (please refer to clause 5 of HAIMSA IT Specific Terms).
8.1 We monitor our hosting facilities, but not your specific activities. Where we have to intercept communications in accordance with the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 (“the Monitoring Act”), we will do this according to the requirements of the Monitoring Act.
8.2 With specific regard to the monitoring of content that is found on a website that belongs to you and which is hosted by HAIMSA IT, we have no knowledge of, nor interest in, Customer content hosted by us or published by us on your behalf using the Services and further we do not in any way contribute to or approve the content.
8.3 If however we determine that any content is in violation of any law (including the Films and Publications Act 65 of 1996) or of the Acceptable Use Policy, or if we receive a takedown notice from ISPA, as contemplated in section 77 of the Electronic Communications and Transactions Act 25 of 2002, we may:- ask you to remove, amend, or modify the content;
8.3.1 terminate access to any Services or suspend or terminate any Services without notice;
8.3.2 delete the offending content without notice;
8.3.3 notify the relevant authorities of the existence of any content, make any back-up, archive, or other copies of any content; or
8.3.4 take any further steps as required or requested by any authorities without notice.
8.4 We may disclose any content, material, or data (including any of your data) if:required by law;
lawfully asked to do so by any authorities, including the South African Police Services pursuant to a subpoena under section 205 of the Criminal Procedure Act 51 of 1977; or
according to a judicial, administrative or governmental order. We do not have to give you notice.
8.5 You will have no recourse against us if we act under this clause and you accordingly waive your right to make any claim or demand, or to institute any legal proceedings against us.
9.1 All Customer Data allocated to you is personal to you and you will be liable for any loss or damage you or third parties have suffered because of your actions or the actions of a person to whom you have disclosed your Customer Data.
9.2 You authorise us to act on any instruction given by or purporting to originate from you even if it becomes clear that both parties have been defrauded by someone else, unless you have notified us under clause 9.4 before we acted on a fraudulent instruction.
9.3 If any security violations are reasonably believed to have occurred in connection with your account, we will investigate and, if necessary, change the relevant Customer Data, including access codes and passwords, and notify you immediately.
9.4 You must tell us immediately if any other person gains access to your Customer Data by following the procedures relating to reporting misuse "Reporting Abuse" and give us your full co-operation in any investigation we carry out.
9.5 You indemnify us (hold us harmless) against any claim arising from:- your disclosure of your Customer Data to a third person;
9.5.1 the use of the Customer Data by a third person; or
9.5.2 any resulting action by you or a third party.
9.6 We reserve the right to take any action we find necessary to preserve the security and reliable operation of our infrastructure. You may not do anything (or permit anything to be done) that will compromise our security.
9.7 We have systems in place to assist our critical technical infrastructure to recover from a natural or human induced disaster. However, we do not specify any recovery time and are not liable for any loss or damage you suffer as a result of a disaster. You must make back-ups of your data. Nothing contained in Our Hosting Terms will be seen as a representation that any back-ups of data we have implemented will be successful or in any way will assist with disaster recovery.
10.1 We warrant that HAIMSA IT has the facilities, infrastructure, capacity, and capability to provide the Services.
10.2 Despite this warranty, the Services are provided “as is” and “as available”. No warranty of any kind is given, whether express or implied, including warranties of merchantability, title, or non-infringement, except where such a warranty is specifically required by law.
11. Intellectual Property Rights
11.1 You must comply with all laws that apply to any intellectual property.
11.2 You must get our prior written approval before using any of our marks.
11.3 You grant us non-exclusive licence to use your marks so that we may exercise our rights or fulfil our obligations under Our Hosting Terms.
11.4 Other than as specifically provided for in Our Hosting Terms, we retain all Intellectual Property Rights employed in or otherwise related to our network infrastructure, business and the provision of any of the Services under Our Hosting Terms, Content supplied to you from our Libraries, including but not limited to Images, Videos, Content Writing, etc.
12. Customer Indemnities
12.1 You indemnify (hold us harmless) from any liability arising from civil or criminal proceedings instituted against us or for any loss or damage you or a third party have suffered because of any interruption or unavailability of the Services.
12.2 You indemnify us and hold us harmless against all losses you have suffered or actions against us as a result of: the use of the Services, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included within the range of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following:- software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services,
non-performance or unavailability of any of the services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail Servers,
12.2.1 non-performance or unavailability of external communications networks to which you or our network infrastructure is connected, and
12.2.2 repairs, maintenance, upgrades, modifications, alterations or replacement of any hardware forming part of the Services, or any faults or defects in the hardware.
12.3 If we are sued for something that you have indemnified us for, you will take our place in the law suit or be liable to pay us back for any costs, damages and expenses including attorneys’ fees on the attorney and own client scale (you will be liable to pay our attorney’s fees finally awarded against us by a court or agreed to in a written settlement agreement, provided that:we notify you in writing as soon as we become aware of the indemnified claim so you can take steps to contest it;
12.3.1 you may assume sole control of the defence of the claim or related settlement negotiations; and
12.3.2 we will give you, at your expense, with the assistance, information, and authority necessary to enable you to perform your obligations under this clause.
12.4 You must pay us any amount due under clause 12.3 as soon as we demand payment. If you contest the amount, you must pay the amount into your attorney’s trust or give us security to cover the amount, until we have resolved the dispute.
12.5 You indemnify us against any loss or damage that HAIMSA IT may suffer because of your actions.
13. Suspension of the Services
HAIMSA IT may temporarily suspend its Service to repair, maintain, upgrade, modify, replace or improve any of its Services. Where circumstances permit, HAIMSA IT will provide prior notice of any service suspension to Customers. However, HAIMSA IT will not be held liable for any resulting loss or damage suffered as a result of the service suspension.
14.1 HAIMSA IT may terminate any Services on five days written notice to you.
14.2 You may terminate any Services on 30 days written notice to HAIMSA IT in one of two way:
• via email to firstname.lastname@example.org;
• or to our address provided in clause 18
14.3 If you give HAIMSA IT notice of termination in any manner other than as specified above you may find that the notice was invalidly given and will not have any effect.
14.4 Breach: If you breach any of Our Hosting Terms, we may, without prejudice to any other rights that HAIMSA IT may have and without notice to you:
14.4.1 claim immediate payment of all outstanding charges due to us,
14.4.2 terminate or suspend your use of the Services, (which may include the deletion of your data)
14.4.3 terminate our relationship with you; or
14.4.4 list you with any credit bureau, Internet service provider list, or the South African Fraud Prevention Service.
By agreeing to our Terms & Conditions, you expressly consent to this. In all instances, we may retain all Services Fees you have already paid and recover all of our costs associated, including legal costs on an attorney and own client scale (you will be liable to pay our attorneys fees) with your breach.
14.5 Return of hardware or software: Where you have in your possession any of HAIMSA IT’s hardware or software as a result of using the Service and the related Service ends, you must immediately return the hardware or software to us.
15. Force Majeure
We will not be responsible for any breach of the Agreement caused by circumstances beyond our control, including fire, earthquake, flood, civil strike, compliance with government orders, failure of any supplier of electricity as well as no electronic communication service etc.
16 Resolving disputes
16.1 Notifying each other. A dispute concerning this Agreement exists once a Party notifies the other in writing, detailing the nature of the dispute, requesting that it be resolved as per this clause. The parties must refer any dispute to be resolved by:
16.1.1 Negotiation (direct talks to try and agree how to end the dispute); failing which
16.1.2 Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
16.1.3 Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
16.2 Negotiation. Each party must make sure that their chosen representatives meet within 10 business days, to negotiate and try to end the dispute by written agreement within a further 15 business days.
16.3 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
16.4 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
17. Exclusion and Limitation of Liability
17.1 HAIMSA IT will not be responsible for any indirect, incidental, special, or consequential damages or losses arising from the Agreement. This includes loss of profits, revenue, anticipated savings, business transactions, goodwill or other contracts. It is irrelevant if this is due to negligence (carelessness) or breach of contract.
17.2 Our total liability to you is for direct damages up to a maximum amount of:
• three months of your base hosting fee; or
• R2,500; whichever is less.
17.3 Our liability for direct damages under clause 17.2 will be excluded where we are held liable because of your use of any third party services or products which you accessed together with the Services, but which we did not provide to you.
17.4This clause will apply even if you advised HAIMSA IT of the possibility of loss of damage prior to its occurrence.
18.1 You must send all notices to HAIMSA IT, whether for court process, notices or other documents or communications, at BiZnet House, Wimbledon Street, Lenasia South, Johannesburg, South Africa, 086 432 9555(fax).
18.2 We may give all notices to you by email to the email address you provided to us on the application form when you first subscribed for the Services.
18.3 Any notice or communication required or permitted to be given under this Agreement will be valid and effective only if in writing.
18.4 All notices you sent to us which are:
18.4.1 sent by prepaid registered post will be deemed to have been received 14 days after date of postage,
18.4.2 delivered by hand and delivered during ordinary business hours at the physical address will be deemed to have been received on the day of delivery.
19.1 Entire agreement: The Agreement constitutes the entire agreement between the Parties.
19.2 No Variation: No changes to the Agreement made by Customer are effective unless in writing and signed by the authorised signatories of both parties.
19.3 Waiver (giving up rights): Any favour we may allow you will not affect [or substitute] any of our rights against you.
19.4 Severability: If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of the Agreement if it does not change its purpose.
19.5 Applicable Law: South African law governs this Agreement.
19.6 Survival: Despite termination of the Agreement, any clause, which, from the context, contemplates on-going rights and obligations of the Parties, will survive the termination and continue to be of full force and effect.
The Specific Terms will apply if there is any conflict of meaning with these General Terms.