Last Updated 10 January 2020
1. DEFINITIONS & INTERPRETATION
- “the / this Agreement” shall mean the agreement as contained herein as well as its annexures, if any;
- “Customer” shall mean the person and / or legal entity entering in to this Agreement with NH for the purpose of being supplied the Services, including a person or persons who makes use of the Services with the Customer’s permission;
- “the Effective Date” means the date on which:
1.3.1 the Customer completes an online and / or hard-copy registration form with the SP for the purpose of activating the Services; and
1.3.2 any amount(s) due to the SP in lieu of the Services is paid to the nominated South African bank account of the SP;
resulting in the SP activating the Service thereby giving rise to this Agreement which is governed by the Standard Terms and Conditions as set out in this document;
- “ISPA” shall mean the Internet Service Providers’ Association, it being a non-profit company founded as a voluntary association its members who provides internet access services in South Africa.
- “Nexthost (“NH”) shall mean the Service Provider (“SP”) and vice versa, it being a private company duly incorporated in terms of the company laws of South Africa, with its principal place of business situated at 113 Second Avenue, Edenvale;
- “Parties” shall mean the Customer and NH;
- “Party” shall mean either the Customer of the SP as the context may indicate;
- “Services” shall mean the cloud and email solutions services and / or such other services as NH may offer the Customer as will more fully appear from Annexure “NH1”;
- “Sign / Signature” including any derivative thereof shall include but not be limited to the typewritten names of the Parties at the foot of their respective emails duly constituted as data logically associated with the data in the body of their emails, as envisaged in the definition of an electronic signature in the Electronic Communications and Transactions Act 25 of 2002 (“the Act”), it therefore constituting the Parties’ signatures as contemplated in Sections 13(1) and 13(3) of the Act thereby satisfying the requirement of a signature in terms of this Agreement;
- “Spam” shall mean unsolicited commercial e-mail or junk-mail often used for marketing and similar purposes which is not asked for nor wanted, and which occasionally may contain viruses, worms or Trojans;
- “Spoofing” means a technique used by an intruder to gain unauthorized access to computers, allowing the intruder to send messages to the compromised computer with an IP address indicating that the message is coming from a trusted host;
- “ST&C’s” shall mean the Standard Terms and Conditions as contained in this document and any annexes thereto;
- “Subscriber Fees” means the amount NH invoices the Customer on a monthly basis for rendering the Services for the duration of the Term;
- “Term” shall mean the period of time for which this Agreement shall endure as will more fully appear from Annexure “NH1” which term shall automatically terminate on the termination date recorded in the said Annexure “NH1”;
- “Trojan Horse” means a program which claims to rid a computer of viruses but instead introduces viruses onto such computer(s);
- “Virus” means a malicious software program loaded onto a user’s computer without the user’s knowledge and which performs malicious actions which also has the ability to self-replicate, inserting itself onto other computer programs or files, infecting them in the process;
- “Worm(s)” means a malicious software program(s) or self-replicating malware whose primary function is to infect other computers while remaining active on infected systems;
- Headings utilised in this Agreement are for reference purposes only and are in no way deemed to modify, amplify or aid in the interpretation of this Agreement and are not to be taken into account for the purposes of interpretation;
- If any one or more of the provisions contained in this Agreement or any document executed in connection herewith shall be invalid, illegal or unenforceable, the remaining provisions contained herein shall not in any way be affected or impaired, provided that in such case the Parties oblige themselves to use their best efforts to achieve the purpose of the invalid provision by new legally valid stipulation;
- Words importing one gender shall include the other genders and words importing the singular shall include the plural and vice versa;
- Words importing natural persons shall include a reference to bodies corporate and other legal personae and vice versa;
- Annexes to this Agreement shall be deemed to have been incorporated herein and shall form an integral part hereof;
- A reference to a Party includes that Party’s heir, executor, administration, successors in title or permitted assigns;
- When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Saturday, Sunday or Public Holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or Public Holiday;
- Where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
2. SERVICE, COMMENCEMENT & TERMINATION DATE
2.1 This Agreement shall become of full force and effect and bind the Parties as from the Effective Date.
2.2 This Agreement shall endure for the Term and may be cancelled prior to the termination date by either Party giving the other Party a 20 (twenty) business day written notice of termination. Should such right be exercised by the Customer, then is such event he shall pay an early termination administration fee equal to 2 (two) months’ Subscriber Fees.
2.3 It is expressly recorded that the Customer may only utilise the Service in accordance with the ST&C’s.
The terms and conditions of ISPA’s code of conduct as amended from time to time, which can be viewed on their website (“the Rules”), are to be read into this Agreement as if specifically incorporated.
4. ACCURACY OF PERSONAL INFORMATION:
The Customer is responsible for updating his personal information and ensuring that it is correct at all times. Personal information for the purpose of this Agreement shall include but not be limited to full names, trading as names, identity and / or registration numbers, marital status, contact details, email address(es), and physical street address(es).
5. FAIR USAGE POLICY
5.1 To ensure that all customers have fair and equal use of our services, which includes but is not limited to the Services, as well as ensuring NH’s network integrity, NH reserves the right, and if deemed necessary, will take the necessary steps to prevent excessive usage by the Customer.
5.2 Excessive usage may be calculated differently depending on the service provided, which calculation method is in the sole and absolute discretion of NH.
5.3 Email services are provided by NH for both home and business purposes resulting from which the Customer must adhere to the Rules dictated by ISPA’s code of conduct.
5.4 The Customer is prohibited from:
5.4.1 Bulk mailing;
5.4.2 Unsolicited marketing campaigns; and / or
5.4.3 Purposely Spoofing or sending Viruses, Worms and / or Trojan Horses.
5.5 Spam & virus protection: NH utilizes sophisticated, multi-layer Spam filtering techniques. Spam however poses and ongoing challenge in the industry as a norm and as a result NH cannot guarantee perfection or perfect delivery. Although very uncommon, some emails may be falsely marked as Spam (usually due to sender issues). Due to no fault on our part, Spam emails do occasionally pass NH’s filters in which event we request the Customer to report same to NH’s abuse department without delay to enable NH to take the necessary action.
5.6 Country Blocking: NH blocks all traffic from China, and from time to time limits certain services to “problem” countries as identified in the sole and absolute discretion of NH.
5.7 Reselling of the Services is permitted but must be approved in writing by NH upon such terms and conditions as it in its sole and absolute discretion may impose.
6. AMENDMENT / CANCELLATION
6.1 No consensual cancellation, amendment, deletion, and / or amplification of this Agreement shall be of any force or effect unless reduced to writing and Signed by the Parties.
6.2 The Customer may upgrade or downgrade his Service with the express written consent of NH first being had and obtained. Any additional costs and / or charges resulting therefrom will be for the Customer’s account.
7. LEGAL PERSONAE AND SURETY
In the event of the Customer being a Company, Close Corporation, Trust or other legal entity, the person entering into this Agreement on its behalf, warrants that he is duly authorized to do so, and by his Signature hereto binds himself to NH as surety and co-principal debtor for the obligations of the Customer in terms of this Agreement, the Customer undertaking to sign or procure the signature of any agreement of suretyship or co-principal debtorship or other likewise agreement required by NH which may result from this agreement. Resulting from the aforesaid it is hereby recorded that the signatory will be personally liable for the performance of all the Customer’s obligations in terms of this Agreement.
8.1 NH is committed to providing a secure and reliable service to its customers. In doing so we endeavor to at all times ensure 100% uptime and keep our customers up to date should we encounter any market / industry related issues. NH uses various backup procedures depending on our products, however, it is the Customer’s responsibility to ensure their data is backed up, unless agreed otherwise in writing and Signed by the Parties. NH cannot and will not be held liable for downtime or loss of data due to natural disasters, acts of God and / or any unforeseen catastrophic failures in which NH had no hand whatsoever.
8.2 Offensive, and / or fraudulent, and / or malicious, and / or unlawful, and / use of any of our services contra bonos mores(“against good morals”) will not be tolerated. NH therefore has the right to, in its sole and absolute discretion, suspend any Services that are in violation of this condition. This includes but is not limited to escort services and pornographic material. Sites with over 18’s content must be submitted to NH for verification before publishing. In the event of the Customer violating / breaching this clause 8.2, and without derogating from any of NH’s other remedies in terms of this Agreement or at law, MH may:
8.2.1 Demand the Customer to without delay remove the offensive, unlawful or harmful content; and / or
8.2.2 Demand the Customer to without delay alter the content; and / or
8.2.3 Demand the Customer to delete his website from NH’s server without notice; and / or
8.2.4 Remove or block the Customer’s access to the website and / or Services as a whole without notice.
8.3 Passwords are not stored by NH and NH highly recommends to the Customer to change his default password(s) using the available options immediately after issuing. The Customer is ultimately responsible for safekeeping of his password(s).
8.4 The Customer records and acknowledges that resulting from this Agreement or in the course of carrying on its business in general will be understood or interpreted as NH assuming responsibility for the content of the Customer’s website or the illegal use of software or licenses and their publication, whether NH is aware that such content is being published or not.
8.5 The Customer indemnifies and holds harmless NH against any liability and any claims by any person whatsoever, past, present and / or future for any loss or damage that is suffered because of the hosting or publication of content or software by the Customer or any other data that is on the Customer’s website.
8.6 The Customer is entirely liable for any and all charges that derive from unauthorised use of the Services and / or the theft thereof and / or the deceitful acquiring of sensitive information in their possession and / or under the Customer’s control.
9.1 Invoices for Subscriber Fees as well as all and any amount(s) due by the Customer to NH shall be sent to the Customer’s nominated email address as it appears on Annexure “NH1”. Invoices shall be deemed delivered on the date of sending.
9.2 It is expressly recorded that Subscriber Fees are payable in advance.
9.3 Nothing prohibits the Customer to make payments in advance. Such advance payments will be credited to the Customer’s account.
9.4 The Customer shall make payment of his invoice no later than 7(seven) days from date of sending thereof. NH reserves the right to suspend the Services should the invoice not be paid timeously and will resulting therefrom take no responsibility whatsoever including but not limited to any damages, loss of income, loss of business revenue and / or productivity. In the event of a Customer’s account being suspended due to his failure, and / or neglect, and or refusal to settle his invoice timeously, MH may in its sole and absolute discretion elect to levy a reconnection fee not exceeding R500.00 (five hundred rand).
9.5 The Customer further acknowledges that he is hereby informed of the fact that mora interest will accrue on all outstanding amounts at the rate in accordance with the provisions of the Prescribed Interest Rate Act, No 55 of 1975 as amended from time to time.
9.6 A certificate signed by a director of NH shall be prima facie (face value) evidence of the amounts owing by the Customer to NH.
9.7 In the event that the Customer disputes an invoice rendered by NH and / or its nominee, the Customer shall not be entitled to withhold payment on the grounds of such dispute but shall remain liable for timeous payment thereof. In the event of a dispute the Parties shall act in good faith to resolve same in an amicable fashion within a period of not more than 7 (seven) days of such dispute arising. Should no resolution be found the dispute shall be referred to NH’s auditor for decision, whose decision shall be final and binding upon the Parties. Any costs associated therewith shall be for the account of the Party against whom the auditor ruled.
9.8 The mode of payment (EFT, debit order and the like) of NH’s invoices shall be recorded in Annexure “NH1”.
9.9 The Customer will not be able to claim any discount, refund or other form of credit for any suspension, interruption or delay of the Services, or in the event of the Customer not utilising the full extent of the Services.
9.10 Should a third party(ies) levy increased charges / tariffs on NH for whatever reason thereby causing NH to pay more to enable it to render the Services to the Customer, then in such event the Subscriber Fee shall be increased accordingly. In such event NH shall provide the Customer with a written notice recording such increase and the reason therefore resulting from which the Customer has the right to terminate the Agreement by giving NH a 20 (twenty) business day written notice of termination. Should such right be exercised by the Customer, then is such event he shall not pay an early termination administration fee as recorded in clause 2.2 of the ST&C’s.
9.11 Without derogating from NH’s other remedies contained in this Agreement or at law, it is hereby recorded that should a Customer not adhere to the payment guidelines recorded in this Agreement, then in such event NH may in its sole and absolute discretion:
9.11.1 cancel the Service; or
9.11.2 Refer the Customer to a collection agency of its choice.
In instances where a Customer is referred to a collection agency, collection fees may be incurred. It may further occur that a Customer is blacklisted with any or all the credit bureau agencies within South Africa. If so blacklisted, NH will not be responsible for, or be required to assist with removing or cancelling any adverse information that a credit bureau(s) records.
10. BREACH & COSTS
Should any Party (“the defaulting party”) commit any breach of any term or condition contained in this Agreement and fail to remedy such breach within 7 (seven) days after receipt of written notice to that effect from the other Party (“the non-defaulting party”), the non-defaulting party shall be entitled without prejudice to any other right which he may have in terms of this Agreement or at law, to –
10.1 claim immediate specific performance by the defaulting party of his obligations in terms of this Agreement; or
10.2 claim payment of an amount equal to the extent of the damage resulting to the non-defaulting party from such breach; or
10.3 cancel this Agreement and claim restitution and damages.
The Customer hereby consents to the jurisdiction of the magistrate’s court having jurisdiction over the Customer’s person, notwithstanding that the amount in issue may otherwise exceed the monetary jurisdiction of the aforesaid court. However, it shall be within the discretion of NH to institute action in a competent High Court and to recover costs on the appropriate High Court scale from the Customer.
The Agreement as contained herein or any rights in terms thereof shall not be capable of being alienated and / or pledged and / or ceded by the Customer to any third party without the express written consent of NH first being had and obtained.
12. NOTICES AND DOMICILIUM
12.1 For the purpose of this Agreement the Parties choose as their domicilia citandi et executandi their respective addresses set out in Annexure “NH1” to this Agreement, at which addresses all processes and notices may validly be served upon or delivered to the Parties, or at such other address not being a post office box or poste restante, of which the Party concerned may notify the other(s) in writing.
12.2 Any notice given in terms of this Agreement shall be in writing and shall:
12.2.1 if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
12.2.2 if posted by pre-paid registered post, be deemed to have been received by the addressee on the 5th (fifth) day following the date of such posting;
12.2.3 if sent by email be deemed to have been received by the addressee upon delivery.
12.3 Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from another, including by way of email shall be adequate written notice or communication to such Party.
No relaxation or indulgence which NH may extend to the Customer shall in any way prejudice NH’s rights hereunder and, in particular, no acceptance by NH of Subscriber Fees or any other sums after due date (whether on one or more occasions) shall preclude or estop NH from exercising any rights enjoyed by it hereunder by reason of any subsequent payment not being made on due date.
14. NO WAIVER
Failure by either Party to exercise any rights under this Agreement in any one or more instances will not constitute a waiver of such rights in any other instance. Waiver by such Party of any default under this Agreement will not be deemed a waiver of any other default. No alteration or modification of any provision of this Agreement will be deemed a waiver of any other default.
15. APPLICABLE LAW
The terms and conditions of this Agreement and Annexures relating hereto, shall be determined in accordance with the laws of the Republic of South Africa
16.1 The Customer, by entering into this Agreement declares that he read and fully understands the terms and conditions of the Agreement as contained herein.
16.2 The Customer, by entering into this Agreement, declares and warrants that he has not been unduly influenced in any manner or form to enter into this Agreement upon the ST&C’s as contained herein.
17. WHOLE AGREEMENT
This Agreement and its annexures constitute the whole agreement between the Parties and no warranties or representations, whether express or implied, not stated herein shall be binding on the Parties.