1.1 This Agreement will start when we provide you with a username and password.
1.2 This Agreement will be between you and Afford-a-web, hereafter called “the Service Provider”.
1.3 By placing an order through our website, you agree to the terms as set out below and to accept electronic invoices from us for the service we render.
2.1 In this agreement, unless inconsistent with or otherwise indicated by the context –
2.1.1 “the/this agreement” means the agreement contained in this document and the Schedule;
2.1.2 “business day” means a day which is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
2.1.3 “effective date” means the effective date as set out in the Schedule;
2.1.4 “including” (or words of similar meaning) means to include without limitation, and if the expression is used with reference to specific examples the “eiusdem generis” rule shall not apply;
2.1.5 “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;
2.1.6 “parties” means the Customer and the Service Provider;
2.1.7 “payable” means payable to the Service Provider by the Customer as set out in the Schedule;
2.1.8 “person” means any person, company, close corporation, trust, partnership or other entity whether having separate legal personality;
2.1.9 “Schedule” means the Schedule attached hereto which is an integral part of this agreement;
2.1.10 “service” means the service to be rendered by the Service Provider, as set out in the Schedule;
2.1.11 “service charge” means the fee charged for the service rendered to the Customer;
2.1.12 “signature date” means (or words of similar meaning) in relation to this agreement or any other document means the date on which this agreement or other document (as the case may be) is signed by the party signing it last in time;
2.1.13 “termination date” means the date on which this agreement will be terminated;
2.1.14 “time frames” means the periods during which the Service Provider shall render the services as set out in the Schedule;
2.1.15 “writing” (or words of similar meaning) means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, 25 of 2002;
2.1.16 “you” shall mean the Customer.
2.2 Any reference to –
2.2.1 the singular includes the plural and vice versa;
2.2.2 natural persons include juristic persons and vice versa;
2.2.3 any one sex or gender includes the other sexes or genders, as the case may be;
2.2.4 any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment or legislative measure of government (including local or provincial government) statutory or regulatory body which has the force of law means the relevant enactment or legislative measure as at the date of signature of this agreement and as amended or re-enacted from time to time;
2.2.5 a party includes a reference to that party’s successors in title and assigns allowed at law.
2.3 The clause headings in this agreement have been inserted for convenience only and shall not be considered in its interpretation.
2.4 Words and expressions defined in any sub-clause shall, for the purpose of this clause of which that sub-clause forms part, bear that meaning assigned to such words and expressions in that sub-clause.
2.5 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to that provision as if it were a substantive clause in the body of the agreement, notwithstanding that it is only contained in the interpretation clause.
2.6 If any period is referred to in this agreement by way of a reference to a number of days or weeks or months or other intervals, the period shall be reckoned exclusively of the 1st (first) day and inclusively of the last day of the relevant interval, unless the last day falls on a day which is not a business day, in which case the last day shall be the next succeeding business day.
2.7 If any period is referred to in this agreement by way of a reference to a number of days or weeks or months or other intervals, the period shall be reckoned exclusively of the 1st (first) day and inclusively of the last day of the relevant interval, unless the last day falls on a day which is not a business day, in which case the last day shall be the next succeeding business day.
2.8 If the due date for performance of any obligation in terms of this agreement is a day which is not a business day, then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding business day.
2.9 If any obligation or act is required to be performed on a particular day it shall be performed (unless otherwise stipulated) by 16h00 on that day.
2.10 This agreement shall be governed, interpreted and enforced in accordance with the laws of the Republic of South Africa from time to time.
2.11 If amounts or figures are specified in numerals and in words and if there is any discrepancy between the numerals and the words, then the words shall apply.
2.12 The rule of construction that this agreement shall be interpreted against the party responsible for the drafting of this agreement, shall not apply.
3 APPOINTMENT OF SERVICE PROVIDER
3.1 The Customer hereby appoints the Service Provider, who hereby accepts this appointment, to provide the services to the Customer.
4 COMMENCEMENT AND TERMINATION
4.1 This Agreement shall commence on the date that the provision of the Service are first made available to the Customer, and shall endure for an indefinite period thereafter, on the same terms and conditions as set out in this Agreement, until terminated by either Party giving the Service Provider 20 business days prior written notice.
5.1 Service Charges are provided on a monthly basis with payment made in advance by the Customer.
5.2 The Service Provider shall be entitled (without obligation) to suspend the Service on non-payment of the applicable charges which are due and payable by the Customer.
5.3 In the event of a legal dispute between the Service Provider and the Customer the Customer will be obliged to continue payment of the Service Fees as they become payable in terms of this Agreement.
5.4 The Service Provider reserves the right to adjust Service charges at their sole discretion. A change in Service Fees will be effective immediately and will be recovered from the Customer as soon as possible thereafter.
6.1 All fees payable is non-refundable.
7 ACCEPTABLE USE POLICY
7.1 The Customer hereby agree to be bound by the Acceptable Use Policy.
8.1 The Customer recognize and understand that the security of the hosting account is their sole responsibility. You confirm by this that the Service Provider shall be entitled to rely on the fact that any person that has access to the Services via the Customers hosting account shall be deemed to do so in the name of the Customer and with their consent.
8.2 The Customer undertake to notify the Service Provider immediately in writing if you have cause to believe the security of your account has been compromised.
8.3 The Customer shall be held fully responsible for any misuse of or compromise to the hosting account of which the Service Provider is not notified in writing.
8.4 The Service Provider reserves the right to suspend access to the Customer’s account, pending a full investigation and resolution thereof.
8.5 The Service Provider further reserves the right to cooperate with any lawful investigation regarding any aspect of the Customers use of the Service.
9 USER CODE OF CONDUCT
9.1 The Services may only be used in accordance with this Agreement, and for lawful purposes.
9.2 The Customer undertake to abide by all current and future policy decisions as made by the Service Provider.
9.3 The Customer understand and acknowledge that by using the Service to make information available via the Internet information may become available to all Internet users, and that the Service Provider assumes no obligation or liability in limiting or restricting access to such information, or protecting such information from infringement.
9.4 The Customer will assume total responsibility and risk for your use of the Services and the Internet. It is your sole responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, products and services, and any other information, and the quality of all merchandise provided through the Internet generally.
9.5 While using the Service, the Customer may not (nor may the Customer authorize or permit any third party to) knowingly and intentionally:
9.5.1 Use the Service in any manner prohibited by relevant legislation, including the Electronic Communications and Transactions Act 25 of 2002;
9.5.2 Post, access or transmit any unlawful information (including without limitation abusive, defamatory, obscene, or like infringing information of any kind; any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any national or international law, including without limitation laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws);
9.5.3 Post, publish, transmit, reproduce or distribute any information or software which contains a virus or another harmful component;
9.5.4 Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
9.5.5 Cause damage to or otherwise interfere with the proper operation of the Service, including without limitation the fraudulent use, falsification or other circumvention of identification procedures, the obtaining access beyond that which the Customer is authorized for, or impairing the availability, reliability, or quality of the Service;
9.5.6 Cause damage to or otherwise interfere with the proper operation of any other information systems accessible via the Internet, including any attempt at unauthorized access of restricted forums or resources;
9.5.7 Avoid or contravene the Acceptable Use Policy; or
9.5.8 Make use of the Services for the transmission or facilitation of spam (which may be declared so by the Service Provider in its sole and unfettered discretion, following an investigation into the Customers use of the Service for qualities including the transmission or facilitation of the transmission of information which is characterized as being unsolicited (whether of not being of a commercial or promotional nature), or where a single or similar message is transmitted or facilitated in bulk, and considered to be an annoyance or hindrance to others), whether by email, Usenet postings, or any other communication mechanism relying on the Services.
9.6 Any breach of this clause will constitute a material breach of this Agreement, and shall, without derogating from any other right of recourse available to it, entitle the Service Provider to immediately suspend the Services.
10.1 The Customer undertake to indemnify and keep the Service Provider indemnified from any claim howsoever arising (lawful or otherwise), brought by any third party resulting from your use of the Services.
10.2 The Customer undertake to pay all costs, damages, awards, fees (legal fees on an attorney-and-own-client scale, whether incurred prior to, during or after the institution of legal proceedings) and judgments finally awarded against the Service Provider arising from such claims.
10.3 The Customer always undertake to acquaint with and abide by applicable legislation and regulation, and accordingly indemnify the Service Provider against any and all damages or loss occasioned by non-compliance hereof.
11 DOMAIN NAMES
11.1 The Customer hereby confirm and warrant that you are the owner of, or are otherwise authorized or entitled to use a trade or service mark associated with any domain name used or applied for and used in conjunction with the Services.
11.2 The Customer warrant that the application for, and where applicable, use, of a domain name, in connection with the Services, will not infringe the rights of any other person, whether in statute or at common law.
11.3 The Customer indemnify the Service Provider and hold it harmless against any and all claims or losses arising out of any action brought by a third party whose rights in respect of a logo, business name or trademark have been infringed by the Customer.
11.4 If the Customer request the Service Provider to register a domain name for and on the Customers behalf, the Customer acknowledge that:
11.4.1 The Service Provider does not guarantee that the domain name you request is available for registration, or that the use of such a domain name will not infringe any third-party rights;
11.4.2 The Service Provider is not a domain name provider, but a mere third-party agent acting on your instructions, to the extent that those instructions are possible and lawful;
11.4.3 The registration of the domain name and its future availability and use is subject to the terms and conditions of use of the domain name provider;
11.4.4 The Service Provider charges an additional service fee for the administrative processes involved in applying for, and where applicable, maintaining the registration of a domain name on the Customers behalf;
11.4.5 The registration and maintenance of the use of the domain name may be subject to Alternate Dispute Resolution procedures here and internationally, and the Customer acknowledge that your rights in and use of the domain name may be subject to the determinations of juristic Panels constituted in accordance with the terms and conditions of such procedures, and
11.4.6 Any fees and associated charges incurred in the process of applying for, renewal and maintenance of registration of the domain name, including any administrative work performed by the Service Provider following a dispute to the domain name are for your account, and are non-refundable.
11.5 Any Internet Protocol (IP) address allocated by the Service Provider to the Customer shall always remain the sole property of the Service Provider and the Customer will have a non-exclusive, non-transferable license to use such IP address for the duration of this Agreement.
11.6 If this Agreement is terminated, for whatever reason, the Customers license to use the IP address shall immediately, automatically, and without prejudice, terminate.
12 DISCONTINUANCE OF SERVICES, MONITORING, NOTIFICATION
12.1 The Service Provider reserves the right to refuse or discontinue all or part of the Service at its sole discretion if the Customer engage in any conduct or activity that the Service Provider in its sole discretion believes violates any of the terms and conditions in this Agreement, or is detrimental to its interests here under.
12.2 You acknowledge that the Service Provider has the right to monitor the Customers use of the Service from time to time in accordance with applicable legislation, and to disclose any information as is necessary in compliance with the law.
12.3 The Service Provider assumes no obligation to act as an information content monitor, but reserves the right to refuse to post, or to remove from publication, any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of law or of this Agreement.
12.4 The Service Provider shall have no obligation, on discontinuation of provision of the Services, to notify any third-party providers of services, merchandise or information, nor shall it be liable for any consequences resulting from such discontinuance or lack of notification.
13 NO GUARANTEES
13.1 Other than as set out in this Agreement, the Service Provider, its employees and agents make neither express nor implied warranties or representations of any kind in respect of the Service, including without limitation warranties of title, non-infringement, or implied warranties of merchantability or fitness for any particular purpose. The Services are provided on an “as is” and “as available” basis. All warranties that are implied or residual in common law are hereby expressly excluded.
13.2 Without limitation to the generality of the above clause, the Service Provider does not warrant that the Service available to the Customer:
13.2.1 will be preserved or sustained in their entirety;
13.2.2 will be suitable for any purposes;
13.2.3 will be free of errors, defects, bugs or viruses of any kind.
13.3 The Service Provider assumes no liability, responsibility or obligation regarding any of the exclusions as set out in this clause.
14 EXCLUSION OF LIABILITY
14.1 Under no circumstances shall the Service Provider be liable to the Customer or any third party for any direct, indirect, special, punitive, consequential or incidental loss or damage (including without limitation damage to property, business, or goodwill, or loss of profit, revenue or anticipated savings) that result directly or indirectly from the Customers use of or inability to use the Service, or for third parties’ use of the Services, or any third parties’ reliance on or use of information, services, or products provided together with, on or through the Service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
14.2 Subject to the above clause, the entire liability of the Service Provider, and the Customers exclusive remedy for damages related to or arising from this Agreement, whether in contract or in delicti, will not exceed the average aggregate of the charges paid by the Customer to the Service Provider during the three months directly preceding the claim.
14.3 The Service Provider reserves the right from time to time to suspend access to or provision of the Service for maintenance and repair. In such instances and where possible, the Service Provider shall endeavour to provide due notice in advance of any restriction of or limitation to the Service. Any liability for any loss or damage arising from such restriction or limitation, whether direct or consequential, is hereby excluded, and the provisions of the first Exclusion of Liability clause above shall apply with the necessary changes to such restriction or limitation.
15.1 The Customer agrees, without limitation or exception, to indemnify, defend, and hold the Service Provider harmless from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees (on an attorney-and-own-client costs scale basis), causes of action or claims caused by or otherwise resulting indirectly from the Customer’s use of the Service which causes damage, either to the Customer, the Service Provider, or any other third party.
15.2 This indemnification extends to all issues associated with the Customer’s account, including but not limited to domain name selection and web site content.
16 CUSTOMER INFORMATION, FINANCIAL INFORMATION, RIGHT OF USE
16.1 The Customer warrant that all information provided to the Service Provider, including without limitation all your identification and contact information, is true and correct, and that should such information change, you will notify the Service Provider thereof within 20 business days of such change.
17 VIRUS SCANNING, SPAM FILTERING, PERMANENT DELETION AND BACKUP OF DATA
17.1 The Customer use of the Service is at their sole risk. The Service Provider is not responsible for the security or integrity of any information stored with the Service Provider and associated with your account.
17.2 The Customer acknowledge that, upon the termination of this Agreement for whatsoever purpose, the Service Provider shall be entitled to permanently remove your information from its servers within a reasonable period, following notice to you. If you have not made alternative arrangements acceptable to the Service Provider for the safe transfer or further storage of your information, the Service Provider accepts no liability for the permanent deletion thereof.
17.3 As a responsible party facilitating access to the Internet and associated protocols, virus scanning, and spam filter activated by default on your account. In the unlikely event that “false positives” (a legitimate message mistakenly marked as spam) occur, the Service Provider will not be held liable for any direct, indirect or consequential loss, should legitimate information incorrectly be identified as spam or a virus, and filtered out, and the provisions set out in clause 14 of the Exclusion of Liability provision above will apply, with the necessary changes.
18 INTELLECTUAL PROPERTY
18.1 The Customer acknowledge that, by virtue of this Agreement, the Customer acquire no interest or any other right in the Intellectual Property of the Service Provider or its affiliates, and that all such Intellectual Property is and shall remain the exclusive property of the Party to which it belongs.
18.2 If the Customer become aware of any actual, threatened or suspected infringement of such Intellectual Property, you undertake to immediately notify the Service Provider thereupon in writing.
19.1 Choice of Law, Jurisdiction: This Agreement shall be governed in all respects by the laws of the Republic of South Africa. Both Parties consent to the non-exclusive jurisdiction of the Magistrates Court, with regard to any proceedings in connection with the Agreement, but you acknowledge that the Service Provider shall be entitled to institute proceedings in the High Court of South Africa.
19.2 Pre-Contractual Negotiations: This Agreement supersedes any written, electronic, or oral communication You may have had prior to the conclusion of this Agreement with the Service Provider, or any agent or representative thereof, and this Agreement constitutes the complete and total Agreement between the Parties.
19.3 Acting as Principal: Each Party warrants that, in entering into this Agreement, it acts as a principal and not as an agent for any undisclosed principal.
19.4 Domicilium Citandi Et Executandi: The Parties choose their addresses as provided for the purposes of this Agreement as their respective addresses for all purposes, including without limitation for the delivery of notices. Each Party shall be entitled to vary its address in writing to the other Party. Any communication shall be deemed to have been received on the 7th day following dispatch thereof. Notwithstanding anything to the contrary, a communication actually received by a Party shall be adequate notice, notwithstanding that it was not sent to the other Party’s chosen address.
19.5 Unilateral Amendment: the Service Provider shall be entitled to unilaterally amend the terms of this Agreement insofar as they relate to the applicable charges from time to time, which shall then become effective as from the date the Service Provider notifies the Customer thereof. Further, the Service Provider shall be entitled to unilaterally vary the terms of this Agreement upon a change in the law as it applies to the telecommunications sector in general, in order to continue to offer its Services to all then current customers.
19.6 No Variation: Subject to a foregoing provision, no acceptance by the Customer of information offered by the Service Provider, its agents or employees, shall constitute an agreement expanding or diluting the terms and conditions of this Agreement, unless such offer and acceptance is explicitly intended to vary this Agreement in an addendum, and is signed by an authorized representative of the Service Provider.
19.7 Indulgence: An indulgence granted by either Party shall not constitute a waiver or abandonment of any of that Party’s rights in this Agreement, and that Party shall not be precluded from exercising any right against the other Party which may have arisen in the past, or which may arise in the future.
19.8 Waiver: A waiver by either Party of any provision of this Agreement shall not be binding against that Party unless expressed in writing and signed by the Party giving it, and in that event such waiver will only be effective in that specific instance and for that specific purpose.
19.9 Severability: If any provision of this Agreement is determined by a Court of competent jurisdiction to be invalid or unenforceable, all remaining provisions of this Agreement shall remain in full force and effect, said provision shall be performed to the maximum extent possible so as to obtain the intended result, and the Service Provider shall be entitled to review, correct and communicate a reformed provision only to the extent necessary to give intended effect to the original provision.
19.10 Surviving Clauses: Upon the termination or cancellation of this Agreement or any clauses hereof for any reason, those clauses which are intended to continue and survive such termination or cancellation (including without limitation, the clause describing Intellectual Property provisions) shall so continue and survive.
19.11 Assignment: The Customer will not be entitled to cede or assign this Agreement or any part thereof without the prior written consent of the Service Provider, and this Agreement shall be binding on the Customer respective successors and assigns. The Service Provider shall be entitled to assign its rights and obligations without the Customers consent to an entity which acquires all or substantially all of the assets of the Service Provider, provided that such assignment does not relieve such assignee of its obligations under this Agreement.
19.12 Representations: Neither Party shall without the prior written consent of the other Party refer to itself as an authorized representative of the other Party, nor use the other Party’s logos, trade or service marks. Notwithstanding the foregoing, the Service Provider is hereby authorized to identify the Customer as its customer for reasonable marketing and/or publicity announcements.