By ordering, installing, connecting or making use of eKaya Web Services’s goods or services from our website www.EziWeb.co.za, for the purposes of reselling, or by indicating your acceptance of these Reseller Terms in any other way, you agree to be bound by them.
Your attention is drawn in particular to clauses rendered in bold capitals in these Reseller Terms. What follows is a summary for your convenience and does not form part of the agreement between you and eKaya Web Services. It is your responsibility to read the clauses referred to.
• You are responsible for your own actions and those of your customers using the services provided by eKaya Web Services (clause 8.1).
• You are responsible for all hardware and software required to make use of the services provided by eKaya Web Services unless otherwise agreed (clause 8.2).
• You agree to comply with eKaya Web Services’s Acceptable Use Policy (clause 8.4).
• You warrant that you and your customer have the right to use any material transmitted, accessed, stored, displayed or reproduced using the service provided by eKaya Web Services (clause 9).
• You consent to eKaya Web Services monitoring your traffic data and will procure the same in respect of your customers for accounting purposes and to ensure that the eKaya Web Services system is operating properly (clause 12.1).
• As soon as equipment provided by eKaya Web Services leaves eKaya Web Services’s possession, risk passes to you (clause 15).
• If any equipment owned by eKaya Web Services is located on premises you do not own, you must reimburse eKaya Web Services if the landlord attaches the equipment as part of a rental dispute (clause 15).
• eKaya Web Services will not be liable to you if you suffer loss as a result of your use or that of your customers of the services provided by eKaya Web Services or which arises from the agreement between you and eKaya Web Services (clause 16).
• You indemnify eKaya Web Services against any claim made against eKaya Web Services as a result of any unlawful act that you or your customer may commit, or your use, or your customer’s use, of the goods or services provided by eKaya Web Services other than as allowed in these Reseller Terms (clause 17).
1. Parties1. "eKaya Web Services" is eKaya Web Services cc also known as www.EziWeb.co.za, a close corporation incorporated in terms of the company laws of the Republic of South Africa with registration number 2005/145133/23. Address: 15 Eugene Marais Drive, Elandspark, Johannesburg, South Africa, 2192 Telephone: 081 364 0948 Email: sales@eKaya.co.za/ support@eKaya.co.za /admin@eKaya.co.za
2. The Reseller” or "You" is the party described as such in these Reseller Terms.
2. DefinitionsThe terms listed in the Standard Terms will have the same meaning in these Reseller Terms and in addition the following terms will have the following meanings in these Reseller Terms:
1. “Charges” means the rates to be paid by the Reseller for the Services as set out in the Charges Schedule of the Standard Terms.
2. “Client” means the customer of the Reseller.
3. “Fees” means the fees and / or charges due to eKaya Web Services by the Reseller in respect of Goods or Services provided by eKaya Web Services to the Reseller in terms of these Reseller Terms.
4. “Party” means either of eKaya Web Services or the Reseller and “Parties” means both collectively. The term also includes their successors and anyone to whom their rights have been assigned (if this is permitted).
5. “Reseller” means You, as the party who has accepted these Reseller Terms.
6. "Reseller Equipment" means any equipment owned by the Reseller, including without limitation servers, peripherals, routers, switches, Software, Databases, data cables, hard drives and uninterruptible power supplies.
7. "Reseller System" means the Reseller Equipment and Software operated together by the Reseller as a system.
8. “Reseller Terms” means this written document, the terms of which You accept by ordering, installing, connecting or making use of eKaya Web Services’s goods or services as a Reseller, or by indicating your acceptance of these Reseller Terms.
9. "Service" means a service provided by eKaya Web Services to the Reseller in terms of these Reseller Terms.
10. “Service Terms” means a schedule describing the terms on which eKaya Web Services will provide a particular Good or Service, as described in the Standard Terms.
11. "Standard Terms" or “eKaya Web Services Standard Terms” means the document of that name that you have agreed to and entered into with eKaya Web Services.
3. Introduction and How these Reseller Terms Work1. eKaya Web Services provides Services and the Reseller is able to market, promote and resell the Services provided by eKaya Web Services.
2. This document together with the Standard Terms forms the Agreement between eKaya Web Services and the Reseller with regard to the reselling of the Services.
3. The Standard Terms, as well as the Service Orders and Service Terms relevant to the resold Services concerned, are incorporated into these Reseller Terms by reference. Unless this document states otherwise, it will be subject to the Standard Terms, including the definitions and rules of interpretation contained in them.
4. If there is any conflict between any of these documents, they will be interpreted in order of precedence as follows: this document (Reseller Terms) and then the Standard Terms, unless otherwise expressly stated in writing.
4. Appointment and Term1. eKaya Web Services appoints the Reseller and the Reseller accepts the appointment to promote, market, and resell the Services, on the terms and conditions of these Reseller Terms.
2. These Reseller Terms will commence on their acceptance by the Reseller, will operate on a month-to-month basis, and will terminate on one calendar months’ written notice by the Reseller to eKaya Web Services. Cancellations by the Reseller must be confirmed by eKaya Web Services to have effect.
3. Upon cancellation of the reseller package all products, subscriptions and / or services that have been discounted to Reseller pricing will be amended back to full retail pricing.
5. Reselling1. The Reseller:
1.1 may generally promote, market and resell the Services for the purpose of facilitating the provision of the Services to its Clients;
1.2 will have a non-exclusive right to resell the Services, and eKaya Web Services will be entitled to appoint other resellers. eKaya Web Services may also itself market the Services and other related services or products; and
1.3 hereby agrees that, and must procure that it agrees in writing with its Clients that its Clients:
1.3.1 enter into a separate agreement with the Reseller with regards to the resale of the Services by the Reseller to its Clients;
1.3.2 are bound in such aforementioned separate agreement by terms no less onerous that the Standard Terms with regards to the Services;
1.3.3 may not in turn resell any Service, or otherwise provide any Service to a third party for consideration without the written consent of eKaya Web Services; and
1.3.4 have in no way contracted with or entered into any agreement with eKaya Web Services, and accordingly will not have any recourse against eKaya Web Services for any reason whatsoever, including but not limited to any claim for damages.
6. Fees and Payment1. The Reseller will be liable for and will pay the Fees in respect of Services supplied in terms of these Reseller Terms on the basis set out in the preferential pricing applicable to the relevant Service Orders, without deduction or set-off.
2. The further provisions of the Standard Terms regarding payment will apply to these Reseller Terms as well.
3. As a reseller of the Services, the Reseller will qualify for preferential rates in respect of the Fees for the Services, subject to the provisions of this clause 6.
4. In order for the Reseller to qualify for the preferential rates described in clause 6.3 during a particular calendar month, the Reseller must accrue a Fee balance in respect of resold Services of no less than R1000.00 (one thousand rand) during that calendar month (the “Minimum Amount”).
4.1 Should the Reseller meet this Minimum Amount, the preferential rates set out in clause 6.3 will be applied to the Fees accrued for the calendar month in question.
4.2 Should the Reseller fail to meet this Minimum Amount, eKaya Web Services will generate an invoice for the shortfall between the minimum amount and the total amount of allowed invoices for services that fall within the Reseller program as set out in clause 6.4
4.3 Should the Reseller require eKaya Web Services to provide technical or any other services not included is fees, this will be covered by our Professional Services Department at additional costs
5. All other provisions relating to payment of Fees to eKaya Web Services as set out in the Standard Terms will apply to these Reseller Terms.
6. For the avoidance of doubt, it is hereby recorded and acknowledged that if the Reseller’s Client fails to make any payment to the Reseller, the Reseller will nevertheless still be liable to make payment to eKaya Web Services for the Services.
7. Applicable Services1. All Services provided by eKaya Web Services to the Reseller in terms of these Reseller Terms will be provided subject to the Service Order and Service Terms applicable to the Service in question.
2. eKaya Web Services will not resell any domain name services in terms of these Reseller Terms and conditions, including domain name registration or renewals. Should these Services be resold, the resale will be subject to separate terms and conditions.
8. Use of Services1. THE RESELLER ACCEPTS THAT IT IS RESPONSIBLE FOR ALL OF THE CONSEQUENCES OF ITS CUSTOMERS’ ACTIVITIES AND THOSE OF ITS EMPLOYEES, OFFICERS, AGENTS, INDEPENDENT CONTRACTORS AND ALL OTHERS UNDER ITS CONTROL WHEN USING THE SERVICES.
2. THE RESELLER IS RESPONSIBLE FOR OBTAINING, INSTALLING AND MAINTAINING ALL HARDWARE AND SOFTWARE REQUIRED FOR ITS CUSTOMERS TO ACCESS THE EKAYA WEB SERVICES SYSTEM AND MAKE USE OF THE SERVICES, UNLESS OTHERWISE AGREED IN WRITING.
3. The Reseller must procure that its Clients make use of the Services in a considerate and lawful way, and advise its Clients that eKaya Web Services has developed an Acceptable Use Policy that contains reasonable rules of conduct for the use of the Service. The Acceptable Use Policy, as amended, is available for viewing on the eKaya Web Services Website.
4. THE RESELLER MUST PROCURE THAT ITS CLIENTS COMPLY WITH THE ACCEPTABLE USE POLICY AND ENSURE THAT ANYONE UNDER ITS CONTROL THAT USES THE SERVICES ALSO DOES SO. A BREACH OF THE ACCEPTABLE USE POLICY IS A BREACH OF THE RESELLER’S DUTY TO ACT IN A CONSIDERATE AND LAWFUL WAY.
5. The Reseller’s Clients’ use of the Services will be governed by the same terms as are applicable to the Reseller in terms of the Standard Terms.
6. A domain name cannot be with held in lieu of any monies owed.
7. The registrant details need to be those of the domain owner and not the reseller.
9. Intellectual Property1. The provisions of the Standard Terms that apply to the Reseller will in turn apply to the Clients.
10. Security1. The measures implemented by eKaya Web Services with respect to security that are applicable to the Reseller as provided for in the Standard Terms will in turn and mutatis mutandis apply to the Reseller’s Clients; the Reseller must accordingly advise its Clients and, the Reseller must contractually bind such Clients to equivalent terms regarding security as are set out therein and procure that such Clients in turn do so as required.
11. Suspension of Service1. eKaya Web Services is entitled to suspend provision of the Service to the Reseller as provided for in the Standard Terms and accordingly the Reseller must advise its Clients of such provisions and that same will apply to them.
12. Data & Content1. The Reseller must advise its Clients of the provisions of the Standard Terms relating to data and content that are applicable to the Reseller, and that same will in turn be applicable to the Reseller’s Clients with the necessary amendments for context.
13. Statutory Compliance1. The Reseller must advise its Clients of the obligations of eKaya Web Services to comply with certain statutory provisions as provided for in the Standard Terms, and that same will in turn and mutatis mutandis apply to the Reseller’s Clients; the Reseller must accordingly advise its Clients and, the Reseller must contractually bind such Clients to equivalent terms.
14. Loss of License1. The Reseller must advise it’s Clients of the implications of the loss of licence and related provisions as set out in the Standard Terms and the implications thereof which will in turn and mutatis mutandis apply to the Reseller’s Clients, with the changes necessary for the context.
15. Risk and Ownership in Equipment & Use and Maintenance of Equipment1. The Reseller must advise its Clients of the provisions of the Standard Terms that relate to Risk and Ownership in Equipment & Use and Maintenance of Equipment, and that same will in turn and mutatis mutandis apply to the Reseller’s Clients, with the changes necessary for the context.
16. LIMITATION OF LIABILITY1. EKAYA WEB SERVICES WILL NOT BE LIABLE TO THE RESELLER OR ITS CUSTOMERS OR ANY THIRD PARTY FOR ANY LOSS THAT RELATES TO OR ARISES FROM THE SERVICES OR THESE RESELLER TERMS, WHETHER EITHER PARTY SHOULD HAVE FORESEEN IT OR NOT. LOSS INCLUDES DAMAGES AND LEGAL OR OTHER COSTS. DIRECT DAMAGES ARE EXCLUDED, AS ARE INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, AND EKAYA WEB SERVICES WILL NOT BE LIABLE WHETHER THE LOSS WAS THE RESULT OF THE ACT OR OMISSION OF AN EKAYA WEB SERVICES EMPLOYEE, BREACH OF CONTRACT, VICARIOUS OR STRICT LIABILITY.
2. IN PARTICULAR, EKAYA WEB SERVICES WILL NOT BE LIABLE FOR LOSS ARISING FROM ANY OF THE FOLLOWING:
2.1 TERMINATION OF THE AGREEMENT OR THESE RESELLER TERMS BEFORE COMMENCEMENT OF A SERVICE, DUE TO TECHNICAL INFEASIBILITY;
2.2 THE RESELLER’S OR THE RESELLER’S CUSTOMERS FAILURE TO TAKE ADEQUATE SECURITY MEASURES;
2.3 ANY ACT OR OMISSION RELATING TO THE TRANSMISSION OF DATA TO AND FROM THE EKAYA WEB SERVICES SYSTEM, ITS STORAGE ON THE EKAYA WEB SERVICES SYSTEM OR ITS PUBLICATION USING THE EKAYA WEB SERVICES SYSTEM TO THIRD PARTIES, INCLUDING FALSE POSITIVES IN SPAM FILTERING;
2.4 ANY ACTION TAKEN BY EKAYA WEB SERVICES IN TERMS OF CLAUSE 10 (SECURITY) OR CLAUSE 11.1 (SUSPENSION OF SERVICE);
2.5 COMPLIANCE WITH ANY STATUTE DESCRIBED IN CLAUSE 13 (STATUTORY COMPLIANCE);
2.6 THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES THROUGH NO FAULT OF EKAYA WEB SERVICES;
2.7 LOSS OF DATA (INCLUDING FAILURE IN BACKUP OR DISASTER RECOVERY), DAMAGED OR CORRUPTED DATA OR A DELAY OR FAILURE IN TRANSMISSIONS; AND/OR
2.8 RESELLER’S BREACH OF THESE RESELLER TERMS OR THE STANDARD TERMS OR OTHER UNLAWFUL ACT OR OMISSION.
3. IF EKAYA WEB SERVICES IS NONETHELESS FOUND TO BE LIABLE FOR LOSS SUFFERED BY THE RESELLER AND / OR THE RESELLER’S CUSTOMER, THE TOTAL AMOUNT OF EKAYA WEB SERVICES’S LIABILITY RELATING TO OR ARISING FROM THE SERVICES OR THESE RESELLER TERMS WILL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY THE RESELLER FOR THE SERVICE FROM WHICH THE DAMAGE AROSE IN THE 3 (THREE) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE.
4. NOTHING CONTAINED IN THIS CLAUSE 16 WILL LIMIT THE RESELLER’S LIABILITY IN RESPECT OF CHARGES INCURRED FOR ONGOING SERVICES.
5. If the CPA is applicable to these Reseller Terms, and any provision of this clause 16 is found by a court or tribunal with jurisdiction over eKaya Web Services to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 16 will have full force and effect.
6. In the case of ambiguity, this clause 16 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in these Reseller Terms.
17. INDEMNITY1. THE RESELLER WILL INDEMNIFY, DEFEND, AND HOLD EKAYA WEB SERVICES HARMLESS FROM ALL CLAIMS BROUGHT AGAINST EKAYA WEB SERVICES BY THE RESELLER OR THE RESELLER’S CUSTOMERS OR ANY THIRD PARTIES AS A RESULT OF:
1.1 THE USE OF THE GOODS OR SERVICES BY THE RESELLER OR THE RESELLER’S CUSTOMERS OTHER THAN AS ALLOWED IN THE STANDARD TERMS OR ACCEPTABLE USE POLICY;
1.2 BREACH OF PRIVACY RIGHTS, OR INFRINGEMENT OF ANY LAW (WHETHER SOUTH AFRICAN OR FOREIGN) GOVERNING DATA PROTECTION OR THE CROSS-BORDER DATA FLOWS BY THE RESELLER OR THE RESELLER’S CLIENT;
1.3 THE INFRINGEMENT OF ANY RIGHT IN INTELLECTUAL PROPERTY BY THE RESELLER OR THE RESELLER’S CUSTOMER, INCLUDING WITHOUT LIMITATION THOSE SET OUT IN THE THESE RESELLER TERMS OR THE STANDARD TERMS; OR
1.4 ANY OTHER WRONGFUL ACT OR OMISSION BY THE RESELLER OR THE RESELLER’S CLIENT.
2. THE INDEMNIFIED CLAIMS WILL INCLUDE LEGAL COSTS ON THE SCALE AS BETWEEN ATTORNEY AND OWN CLIENT AND ANY ADDITIONAL LEGAL COSTS.
3. If the CPA is applicable to these Reseller Terms, and any provision of this clause 17 is found by a court or tribunal with jurisdiction over eKaya Web Services to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 17 will have full force and effect.
18. Warranties1. The warranties set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
19. Assignment, Subcontracting and Reselling1. Neither Party will be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of these Reseller Terms without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.
2. eKaya Web Services may sub-contract its obligations in terms of these Reseller Terms to a third party, provided that:
2.1 such sub-contracting will not absolve eKaya Web Services from responsibility for the provision of the Service or complying with its obligations in terms of these Reseller Terms; and
2.2 eKaya Web Services will at all times remain the sole point of contact for the Reseller.
20. Relationship between the Parties1. The provisions relating to the relationship between the Parties as set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
21. No Solicitation1. The non-solicitation provisions as set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
22. Application of the Consumer Protection Act1. The application of the CPA as provided for the in the Standard Terms will apply in the same way, with the changes as necessary for context.
23. Breach and Termination1. The provisions applicable to breach and termination as provided for in the Standard Terms will in the same way apply to these Reseller Terms.
24. Notices1. The Parties choose their addresses where they will accept service of any notices/documents for all purposes arising from this Agreement (domicilium citandi et executandi) as provided for in the Standard Terms.
2. The provisions applicable to notices as provided for in the Standard Terms will in the same way apply to these Reseller Terms.