Service Level Agreement (SLA)
Important Notice
By ordering, installing, connecting or making use of eKaya Web Services’s goods or services from our website www.EziWeb.co.za, or by indicating your acceptance of this Agreement in any other way, you agree to be bound by eKaya Web Services’s Standard Terms (SLA) as well as eKaya Web Services’s Acceptable Use Policy (AUP) and the specific Service Terms applicable to the good or service concerned.
Your attention is drawn in particular to clauses rendered in bold capitals in the eKaya Web Services Standard Terms (SLA). 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 consent to a credit check and to credit record reporting (clause 7.1), if required.
You are responsible for your own actions using the services provided by eKaya Web Services (clause 9.1).
You are responsible for all hardware and software required to make use of the services provided by eKaya Web Services unless otherwise agreed (clause 9.2).
You agree to comply with eKaya Web Services’s Acceptable Use Policy (AUP) (clause 9.4).
You warrant that you have the right to use any material transmitted, accessed, stored, displayed or reproduced using the service provided by eKaya Web Services (clause 11.7).
You consent to eKaya Web Services monitoring your traffic data for accounting purposes and to ensure that the eKaya Web Services system is operating properly (clause 14.1).
You consent to eKaya Web Services using personal information that you provide to eKaya Web Services only for the purpose of providing the service/s, and you warrant that if you provide a third party’s personal information to eKaya Web Services you have the consent that third party (clause 14.3).
As soon as equipment provided by eKaya Web Services leaves eKaya Web Services’s possession, risk passes to you (clause 16).
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 18).
eKaya Web Services will not be liable to you if you suffer loss as a result of your use of the services provided by eKaya Web Services or which arises from the agreement between you and eKaya Web Services (clause 19).
You indemnify eKaya Web Services against any claim made against eKaya Web Services as a result of any unlawful act that you may commit, or your use of the goods or services provided by eKaya Web Services other than as allowed in the agreement (clause 20).
Contents
1. Parties2. Definitions
3. How the Agreement Works
4. Service Orders
5. Term of Agreement and Renewal
6. Amendment of Terms
7. Initiation
8. Fees and Payment
9. Use of Services
10. Email accounts
11. Intellectual Property
12. Security
13. Suspension of Service
14. Data & Content
15. Statutory Compliance
16. Loss of License
17. Risk and Ownership in Equipment
18. Use and Maintenance of Equipment
19. Limitation of Liability
20. Indemnity
21. Warranties
22. Assignment, Subcontracting and Reselling
23. Relationship between the Parties
24. No Solicitation
25. Application of the Consumer Protection Act
26. Breach and Termination
27. Notices
28. Disputes
29. Force Majeure
30. Interpretation
31. General
32. Domain Registration, Renewal, Redemption, Deletion and Domain Parking
1. Parties
1.1. "eKaya Web Services" is eKaya Web Services cc (2005/145133/23) also known as www.EziWeb.co.za, a company incorporated in terms of the company laws of the Republic of South Africa.• Address: 15 Eugene Marais Street, Elandspark, Johannesburg, Gauteng, South Africa, 2092
• Postal Address: PO Box 83818, South Hills, Johannesburg, Gauteng, South Africa, 2136
• Telephone: +27 081 364 0948
• Emails: abuse@ekaya.co.za, admin@ekaya.co.za, eziweb@ekaya.co.za, sales@ekaya.co.za, support@ekaya.co.za
1.2. "The Customer” or "You" is the party described as such on any Service Order executed between you and eKaya Web Services with contact details as entered on the Service Order.
2. Definitions
2.1. "Acceptable Use Policy" or AUP means the document with that heading available on the eKaya Web Services Website, as amended from time to time.2.2. "Agreement" means these Standard Terms, as well as the relevant Service Order(s), Service Terms and any schedules or annexures relating to them or to this document, which all form part of the Agreement.
2.3. "Affiliate” means, in relation to a Party, the Party’s holding company, its subsidiaries, the subsidiaries of its holding company and any other companies which, directly or indirectly, is controlled by the Party, controls the Party or is under common control with the Party.
2.4. "Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.
2.5. "Business Hour" means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
2.6. "Charges” means the rates to be paid by the Customer for the Services as set out in the Charges Schedule [is it possible to put these in a schedule so details may be updated once instead of in each document]
2.7. "Customer” is defined in section 1.2.
2.8. "Customer Data" means information collected for the purpose of identifying customers as well as photographs, websites, videos, data and email messages that are transmitted via the eKaya Web Services System.
2.9. "Customer Equipment" means any equipment owned by the Customer, including without limitation servers, peripherals, routers, switches, software, databases, data cables, hard drives and uninterruptible power supplies.
2.10. "Customer System" means the Customer Equipment and Software operated together by the Customer as a system.
2.11. "Customer Support Ticket Area” means the online account administration facility provided to Customers at the eKaya Web Services Website, EziWeb.co.za.
2.12. "CPA” means the Consumer Protection Act, 68 of 2008.
2.13. "Data" means electronic representations of information in any form.
2.14. "Database” means a collection of related data including, but not limited to, text, images sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
2.15. "eKaya Web Services Equipment" means any equipment supplied to the Customer by eKaya Web Services in terms of this Agreement but which the Customer does not own, or any equipment possessed by eKaya Web Services.
2.16. "eKaya Web Services Premises" means any premises where equipment used by eKaya Web Services to provide the Services is located, and which is not owned or occupied by the Customer, and includes reference to data centres both in South Africa and elsewhere.
2.17. "eKaya Web Services System" means equipment operated together as a system by eKaya Web Services to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.
2.18. "eKaya Web Services Website" means the Internet website published at the URL www.eKaya.co.za or "www.EziWeb.co.za" or another URL that eKaya Web Services notifies the Customer of from time to time.
2.19. "Domain" means an Internet subdomain registered with an authorised registrar appropriate to its top-level domain ("TLD") and comprising its constituent domain name server records including, but not limited to, host names, aliases and mail exchange ("MX") records.
2.20. "Emergency Maintenance" means maintenance to the eKaya Web Services System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Services, or substantial loss to eKaya Web Services, the Customer or any third party.
2.21. "Fees" means the fees and/or charges due to eKaya Web Services by the Customer in respect of Goods or Services provided by eKaya Web Services to the Customer in terms of this Agreement.
2.22. "Goods" means any and all goods to be provided by eKaya Web Services to the Customer in terms of this Agreement, including without limitation equipment, hardware and third party software.
2.23. "Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
2.24. "Hosting Service" means the type of hosting service selected by the Customer, either Website Hosting or Cloud Server Hosting as described in the Schedule and the Service Order.
2.25. "Intellectual Property Rights" means patents, registered designs, trade marks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, that grant similar rights.
2.26. "Malicious Code" means anything that contains any computer software routine or code intended to:
2.26.1. allow unauthorised access or use of a computer system by any party, or
2.26.2. disable, damage, erase, disrupt or impair the normal operation of a computer system,
and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
2.27. "Party" means either of eKaya Web Services or the Customer and "Parties" means both of them collectively. The term also includes their successors and anyone to whom their rights have been assigned (if this is permitted).
2.28. "Personnel" means any director, employee, agent, consultant, contractor or other representative of a Party.
2.29. "Personal Information" has the meaning set out in POPI.
2.30. "POPI" means the Protection of Personal Information Act, 4 of 2013.
2.31. "Privacy Policy" means the document with that heading available on the eKaya Web Services Website, as amended from time to time.
2.32. "Provider" means eKaya Web Services or EziWeb.co.za.
2.33. "RICA" means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2003.
2.34. "Service" means a service provided by eKaya Web Services to the Customer in terms of this Agreement.
2.35. "Service Level Availability" means a Service Schedule with that heading defining levels of service to be met by eKaya Web Services under the Agreement.
2.36. "SLA Ticket" means the reporting of a service outage or complaint regarding a Service or the Service Level Availability either via the service provider’s online portal.
2.37. "Service Order/ Order" means a goods, license, services and/or work order agreed to in writing or by subscription on website (which includes reference to email or via the eKaya Web Services Website) by both the Parties in terms of this Agreement and relevant Service Terms listing the specific Goods or Services to be provided by eKaya Web Services to the particular Customer.
2.38. "Service Terms" means a schedule describing the terms on which eKaya Web Services will provide a particular Good or Service, as amended from time to time, read with the General terms, such as the Hosting terms , Domains, Connectivity, AUP.
2.39. "Standard Terms" or "eKaya Web Services Standard Terms" means this document.
2.40. "Software" means any computer programme (whether source- or object code), as well as any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
2.41. "Supplier" means a supplier of goods and/or services to eKaya Web Services.
2.42. "Time and Materials Rate" means eKaya Web Services's standard time and materials fees and charges applicable from time to time, including all expenses reasonably and actually incurred by eKaya Web Services, including for travel, accommodation and subsistence.
3. How the Agreement Works
3.1. The Goods and Services that eKaya Web Services will provide to the Customer will be described in Service Orders and specific Service Term(s) schedules.3.2. These Standard Terms apply to all Service Orders.
3.3. More details of particular Goods or Services may be contained in Service Term(s) Schedules.
3.4. The Service Order(s), Service Terms, and this document together form the Agreement between eKaya Web Services and the Customer. If the Parties enter into a Service Level Availability or agree to an annexure to any of these documents, these will also form part of the Agreement.
3.5. If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: Standard Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Availability, unless otherwise expressly stated in writing.
3.6. The meanings of any capitalised words in this document are found under the Glossary at the end of this document.
4. Service Orders/ Orders
4.1. eKaya Web Services will provide the Services to the Customer as described in Service Orders in terms of the Agreement.4.2. A Service Order may be signed in hard copy (in counterparts or not), entered into via the eKaya Web Services Website, per email or by another method if confirmed by eKaya Web Services.
4.3. Each Service Order (read with the other documents mentioned above) will be a separate contract between the Customer and eKaya Web Services (unless the Service Order is amended or renewed by another Service Order).
4.4. The terms of one Service Order will not apply to another, unless a Service Order amends or renews an existing Service Order or adds Goods or Services to an existing Service Order.
5. Term of Agreement and Renewal
5.1. The Agreement will be in force from the date on which the Customer signs or indicates acceptance of a Service Order in some other way, and will continue in force for the period stated on the Service Order, where after it will automatically renew for further periods equal to the initial period until terminated as described in clause 5.3. If the Service Order does not specify a time period, the Agreement will operate on a month-to-month basis.5.2. Where the commencement of a Service is delayed, the termination date of the Agreement will be calculated from the date that the Service commenced.
5.3. Unless otherwise stated in the Service Order, either Party may terminate the Agreement on 1 (one) calendar months’ notice in writing to the other. Cancellations by the Customer must be confirmed by eKaya Web Services to have effect.
6. Amendment of Terms
6.1. eKaya Web Services may amend the Standard Terms and Service Terms at any time. The amended versions will be posted on the eKaya Web Services Website, and eKaya Web Services will as soon as possible after posting the amendments make reasonable efforts to advise the Customer of them by email and via the Customer Support Ticket Area.6.2. eKaya Web Services must give at least 14 days or immediate notice under extreme conditions written notice of the amendments.
6.2.1. In the case of a fixed-term Agreement (which includes services renewed monthly), the amendments will become effective at the end of the then current contractual period.
6.2.2. In the case of an indefinite period, the amendments will become effective at the beginning of the first calendar month after the notice period has expired, and the Customer may terminate the Agreement before the end of the notice period if it objects to the amendments. The termination will take effect at the end of the notice period.
6.3. If eKaya Web Services increases its Fees, notice of the change must take place as described in clause 6.2
7. Initiation
7. Initiation7.1. THE CUSTOMER CONSENTS TO EKAYA WEB SERVICES CARRYING OUT A CREDIT CHECK ON THE CUSTOMER AT ANY APPLICABLE CREDIT BUREAU IF REQUIRED, AND MAY MAKE THE PROVISION OF THE GOODS OR SERVICES DEPENDANT ON ITS SATISFACTION WITH THE RESULTS. EKAYA WEB SERVICES MAY ALSO PROVIDE INFORMATION ON THE CUSTOMER’S PAYMENT RECORD TO A CREDIT BUREAU.
7.2. If the Customer is a juristic person, eKaya Web Services may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, eKaya Web Services may withhold providing the Services until the surety has been signed.
7.3. Depending upon the Service provided to the Customer, eKaya Web Services may be obliged under RICA to obtain certain information from the Customer, and eKaya Web Services may withhold or suspend provision of Services until the Customer has provided the necessary information to eKaya Web Services.
7.4. If the Customer has not complied with a requirement of this clause 7, eKaya Web Services may delay providing the Services until the Customer has complied. If the Customer does not comply within a reasonable period, eKaya Web Services may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result.
8. Fees and Payment
8.1. The Customer will be liable for and will pay the Fees in respect of Services supplied in terms of this Agreement on the basis set out in the Service Orders, without deduction or set-off.8.2. eKaya Web Services may at its sole instance require the Customer to make payment by way of debit order.
8.3. Unless otherwise agreed:
8.3.1. Billing will commence on the date that Service provision commences.
8.3.2. Partial months (if applicable) will be charged pro rata, and this Fee may be included in the following month’s charge for convenience’ sake.
8.3.3. All other invoices must be paid by the Customer within ten (10) calendar days of the date of eKaya Web Services’s invoice.
8.3.4. Pre-paid Fees must be paid by the 7th day of the relevant month.
8.3.5. All Fees and other amounts payable are quoted exclusive of VAT. At this stage eKaya Web Services is not VAT registered and therefore need not to charge VAT.
8.3.6. All transactions are processed in South African Rands (ZAR) unless otherwise agreed upon in writing from the Accounts department or Management.
8.3.7. Should the Customer elect to pay via Cash or Cheque payments, services shall only be activated once the proof of payment has been emailed through to the Provider and said amounts are cleared by the bank. The Provider is not responsible for domains being lost, or taken by a third party during the transition period between the registration and the receipt and clearing of the payment for said domains.
8.3.8. All cash, ATM and Teller, deposits will be subject to the bank fees as set out by the bank.
8.4. Interest will be charged on any amount that remains unpaid by the Customer beyond the due date of payment:
8.4.1. The interest rate will be 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month with a minimum amount of R25.00, whichever is the highest figure.
8.4.2. The prime overdraft rate will be as charged by eKaya Web Services’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.
8.4.3. The interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest.
8.5. eKaya Web Services may at its sole discretion suspend the provision of Services in respect of which any amount is outstanding:
8.5.1. immediately where a debit order fails due to incorrect information or insufficient funds (with a delay in reconnection of up to 72 hours in the case of multiple bounces), or
8.5.2. on 5 (five) Business Days written notice to the Customer in any other case,
8.5.3 unless the amount is the subject of a legitimate billing complaint by the Customer. Such suspension will not relieve the duty upon the Customer to make payment of subsequent Fees for that service or any other amounts due to eKaya Web Services.
8.6. Reconnection of any Service suspended in terms of clause 8.4 will be subject to a reasonable reconnection fee which will be published on the eKaya Web Services Website from time to time.
8.7. Termination of any annual or bi-annual account before its pre-paid term ends will be subject to a reasonable administration fee which will be published on the eKaya Web Services Website, eziweb.co.za, from time to time.
8.8. Should any amount be outstanding by more than 60 Business Days, eKaya Web Services may refer the matter to a debt collection agency or attorney for collection. Should it do so, the Customer will be liable for a reasonable administration fee which will be published on the eKaya Web Services Website from time to time, as well as any legal costs arising from collection of the debt.
8.9. If a particular Service is provided by calendar month, and the commencement date for that Service is not the beginning of a calendar month, the Fee for that first month will be reduced proportionately.
8.10. eKaya Web Services may increase or decrease the Fee for any Service from time to time, and this will be done in the same way as an amendment of this Agreement (see clause 6).
8.11. The Customer will reimburse all reasonable expenses that are necessarily and actually incurred by eKaya Web Services and eKaya Web Services’s Personnel in fulfilling eKaya Web Services’s obligations in terms of this Agreement. Such expenses include, but are not limited to, travelling, subsistence, goods and services purchased on the Customer’s behalf, communications, stationery, reports and presentation material. Travelling and subsistence expenses will be agreed between the parties from time to time.
8.12. The Parties agree that in the event of any dispute in respect of monies owing to eKaya Web Services which have not been paid by the due date; eKaya Web Services:
8.12.1. may retain any Customer Equipment which is in its possession in pursuance of any Service Order as security for payment of any disputed amount, and
8.12.2. will be entitled, but not obliged, to dispose of such Customer Equipment in order to recover any amounts so owing should such amounts have been outstanding for a period of more than 60 (sixty) days from due date.
8.13. If a Customer has been given a discount as a result of referring a third party to eKaya Web Services, the discount will be forfeited if the referee terminates its agreement with eKaya Web Services within three (3) months of commencement.
9. Use of Services
9.1. THE CUSTOMER ACCEPTS THAT IT IS RESPONSIBLE FOR ALL OF THE CONSEQUENCES OF ITS OWN ACTIVITIES AND THOSE OF ITS EMPLOYEES, OFFICERS, AGENTS, INDEPENDENT CONTRACTORS AND ALL OTHERS UNDER ITS CONTROL WHEN USING THE SERVICES.9.2. THE CUSTOMER IS RESPONSIBLE FOR OBTAINING, INSTALLING AND MAINTAINING ALL HARDWARE AND SOFTWARE REQUIRED TO ACCESS THE EKAYA WEB SERVICES SYSTEM AND MAKE USE OF THE SERVICES, UNLESS OTHERWISE AGREED IN WRITING.
9.3. The Customer must make use of the Services in a considerate and lawful way, and 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.
9.4. THE CUSTOMER MUST 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 CUSTOMER’S DUTY TO ACT IN A CONSIDERATE AND LAWFUL WAY.
9.5. Network security threats evolve quickly and behaviours change as technology changes. As a result, eKaya Web Services must be able to amend the Acceptable Use Policy at any time, and reserves the right to do so. The Customer has a general duty to act in a considerate and lawful way; an amendment to the Acceptable Use Policy does not constitute an amendment of this Agreement.
9.6. eKaya Web Services may use upstream Suppliers in providing certain Services, which may maintain their own acceptable use policies. eKaya Web Services will inform the Customer if this is the case. The Customer agrees to abide by these policies in using the relevant Services. eKaya Web Services may treat a breach of a Supplier’s acceptable use policy as if it were a breach of eKaya Web Services’s Acceptable Use Policy.
10. Email accounts
If email accounts are made available to the Customer, they will be provided on the following terms:10.1. eKaya Web Services may filter incoming email for unsolicited bulk email (Spam), Virus and Malicious Code. This filtering will be done on a best effort basis without any warranty of any kind.
10.2. The servers used to provide an email Service will be subject to the same level of security as the rest of the eKaya Web Services System.
10.3. The Customer may send bulk email, but may not send unsolicited bulk email, as described in the Acceptable Use Policy.
10.4. eKaya Web Services will be entitled to take whatever steps it deems necessary to prevent the sending of unsolicited bulk email using the eKaya Web Services System.
10.5. eKaya Web Services will be entitled to take whatever steps it deems necessary to prevent an IP address allocated to eKaya Web Services from being blocked as result of the transmission of bulk unsolicited email, and may amongst other measures:
10.5.1. suspend the Customer's email account, and
10.5.2. suspend access to a domain name hosted on the eKaya Web Services System.
10.6. If eKaya Web Services incurs costs in unblocking any of its IP addresses as a result of a Customer sending bulk unsolicited email using the eKaya Web Services System, the Customer will be liable for those costs, including time and materials at eKaya Web Services’s standard rates.
10.7. If email accounts are held on eKaya Web Services’s servers:
10.7.1. eKaya Web Services may delete emails received or sent more than 90 days before a given date;
10.7.2. If the mailbox size specified in the relevant Service Order is exceeded, no further emails will be received into the Customer’s account;
10.7.3. No emails larger than 20MB will be sent or received;
10.7.4. Upon termination of the Service all email will be deleted and email addresses associated with the Customer’s account will cease to function;
10.7.5. eKaya Web Services has no responsibility for backing up email stored on its servers; and
10.7.6. "Webmail" is provided as a complimentary service and eKaya Web Services gives no warranty that it will be accessible by the Customer at any given time.
10.7.7. Individual mail sent to the Customer's POP3/ IMAP box or forwarded to the Customer's existing email address may be limited to 5MB in size each.
10.8. eKaya Web Services reserves the right to refuse domain and hosting services based on network, domain and/or equipment identifiers and at our sole discretion.
11. Intellectual Property
11.1. Nothing in this Agreement will be interpreted as granting either eKaya Web Services or the Customer a license to deal in any way with any Intellectual Property owned by the other, nor will anything be construed as an assignment of Intellectual Property to the other, unless otherwise agreed in writing.11.2. If eKaya Web Services provides the Customer with Software as part of providing a Service, and it holds Intellectual Property rights to the Software, it grants the Customer a non-exclusive, non-transferable licence to use that Software:
11.2.1. only for the Customer’s own purposes;
11.2.2. for making use of the Services; and
11.2.3. for the duration of this Agreement and subject to its terms.
11.3. If eKaya Web Services provides the Customer with Software owned by a third party, the Customer must comply with all license terms imposed by the third party when it uses the Software. These terms include any terms appended to a Service Order.
11.4. Copyright in any Software or other works created by eKaya Web Services in terms of this Agreement will vest in eKaya Web Services.
11.5. The Customer is specifically prohibited from reverse engineering, disassembling, decompiling or using any method to discover the source code of any Software provided in terms of this Agreement (or attempting to do so), where the Intellectual Property is not owned by the Customer.
11.6. The Customer undertakes to comply with all intellectual property laws, and to do nothing related to or connected with this Agreement or its use of the eKaya Web Services System which may infringe the Intellectual Property rights of eKaya Web Services or any third party.
11.7. THE CUSTOMER WARRANTS THAT IT EITHER OWNS THE INTELLECTUAL PROPERTY RIGHTS TO ALL MATERIAL TRANSMITTED, ACCESSED, STORED, DISPLAYED OR REPRODUCED USING THE EKAYA WEB SERVICES SYSTEM, OR THAT IT HAS THE PERMISSION OF THE OWNER OF THE MATERIAL TO MAKE USE OF THAT MATERIAL IN THAT WAY.
11.8. eKaya Web Services will have the right to make copies of the Customer Data if this is necessary to provide a Service.
11.9. While providing the Services, eKaya Web Services may have one or more Internet Protocol ("IP") addresses allocated to the Customer.
11.9.1. The Customer must put the assigned IPs to the use specified or implied in the Service Order, and will not put them to another use without the express written consent of eKaya Web Services.
11.9.2. The Customer acknowledges that IP addresses are not property and cannot be owned. As a result the Customer has no right or expectation of a right to ownership of any IP address assigned to it.
11.9.3. On termination of this Agreement or the relevant Service Order, any IP Addresses assigned to the Customer may be removed from the Customer, and the Customer will have no recourse against eKaya Web Services or any third party as a result of any loss sustained as a result.
12. Security
12.1. eKaya Web Services will implement measures in line with Good Industry Practice and its Acceptable Use Policy to ensure the security of the eKaya Web Services System and the physical security of the eKaya Web Services Premises and or Data Centres, but gives no warranty that breaches of security will not take place.12.2. If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify eKaya Web Services.
12.3. If the Customer suffers damage as a result of loss or corruption of Customer Data through a security violation or breach of the Acceptable Use Policy, the Customer will be liable for the damage if the violation was the Customer’s fault.
12.4. The Customer must not do anything that may prejudice the security of the eKaya Web Services System, and must take all reasonable measures necessary to ensure that:
12.4.1. no unlawful access is gained to the eKaya Web Services Premises, the eKaya Web Services System, or the Customer System;
12.4.2. no Malicious Code is introduced into the eKaya Web Services System;
12.4.3. the Customer Data is safeguarded; and
12.4.4. any Internet Protocol ("IP") address range assigned to the Customer cannot be attacked by third parties;
12.4.5. all use of the Services occurs in compliance with the Acceptable Use Policy.
12.5. If a security violation occurs, or eKaya Web Services is of the view that a security violation is imminent, eKaya Web Services may take whatever steps it considers necessary to maintain the proper functioning of the eKaya Web Services System including without limitation:
12.5.1. changing the Customer’s access codes and passwords (or those of any user of the eKaya Web Services System),
12.5.2. preventing access to the Customer System, and
12.5.3. preventing access to the eKaya Web Services System.
12.6. eKaya Web Services takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.
12.7. The Customer must give its full cooperation to eKaya Web Services in any investigation that may be carried out by eKaya Web Services regarding a security violation. If it is found that the Customer has violated the Acceptable Use Policy, the Customer shall pay Investigation fees to recover the costs per hour that the Provider’s personnel must spend to investigate any violations as set out in the Fee Schedule.
12.8. If the Customer is providing any service to third parties that makes use of the eKaya Web Services System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 12.
13. Suspension of Service
13.1. eKaya Web Services is entitled to suspend provision of the Service(s) to the Customer where:13.1.1. the Customer is found to be in breach of the Acceptable Use Policy,
13.1.2. the Customer has not made payment of monies owing to Service Provider by due date, subject to clause 8.4,
13.1.3. such suspension is necessary to maintain security as set out in clause 12,
13.1.4. eKaya Web Services or its contractors need to carry out Emergency Maintenance,
13.1.5. the Customer has failed to co-operate in an investigation as set out in clause 12.7 or otherwise has breached its duties set out in clause 12 such that its continued access to the Service Provider System constitutes a threat to security, and/or
13.1.6. where so ordered by a court having jurisdiction over Service Provider.
13.2. eKaya Web Services is entitled to suspend Service as set out in clause 13.1 immediately and without notice. In the case of grounds set out in clauses 13.1.1 to 13.1.3. eKaya Web Services must provide the Customer with at least seven (7) days’ notice of such suspension, unless the circumstances are such that immediate suspension is necessary to avoid loss to eKaya Web Services, the Customer or any third party.
13.3. Should the Customer’s account be suspended for non-payment, the Provider reserves the right to place a non-payment page on the Customer’s domain.
13.4. The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
13.5. Reconnection of any Service suspended in terms of clauses 13.1.1 to 13.1.6 will be subject to a reasonable reconnection Fee.
14. Data and Content
14.1. WHILE EKAYA WEB SERVICES RECOGNISES THE CUSTOMER'S RIGHT TO PRIVACY OF ITS DATA, THE CUSTOMER CONSENTS TO EKAYA WEB SERVICES MONITORING THE CUSTOMER'S TRAFFIC DATA USING THE EKAYA WEB SERVICES SYSTEM FOR ACCOUNTING PURPOSES AND TO ENSURE THAT THE EKAYA WEB SERVICES SYSTEM IS OPERATING PROPERLY.14.2. The Customer must not upload to, store on or transmit any data or content via the eKaya Web Services System that is unlawful, harmful, or in breach of the Acceptable Use Policy.
14.3. THE CUSTOMER CONSENTS TO EKAYA WEB SERVICES PROCESSING PERSONAL INFORMATION TRANSMITTED TO THE EKAYA WEB SERVICES SYSTEM IN A WAY WHICH IS CONSISTENT WITH THE SERVICE BEING PROVIDED. WHERE THE CUSTOMER'S USE OF A SERVICE LEADS TO THE TRANSMISSION OF PERSONAL INFORMATION TO OR FROM THE REPUBLIC OF SOUTH AFRICA, THE CUSTOMER ACKNOWLEDGES THAT IT HAS A DUTY TO COMPLY WITH ANY RELEVANT STATUTORY PROVISIONS DEALING WITH DATA PRIVACY EITHER IN THE REPUBLIC OF SOUTH AFRICA OR IN ANY FOREIGN COUNTRY TO WHICH THE PERSONAL INFORMATION IS TRANSMITTED. THE CUSTOMER WARRANTS THAT IT HAS OBTAINED THE CONSENT OF ANY THIRD PARTY FOR THE USE OF THAT PARTY’S PERSONAL INFORMATION IN THIS WAY.
14.4. eKaya Web Services has no knowledge of or interest in data that the Customer may transmit via, store on or access from the eKaya Web Services System. eKaya Web Services also has no duty to monitor any content made available or published through the eKaya Web Services System, unless required under clause 15 (Statutory Compliance).
15. Statutory Compliance
15.1. eKaya Web Services is obliged to comply with certain statutory provisions including, but not limited to, those set out in the following Acts (and their associated regulations):15.1.1. the Films and Publications Act 65 of 1996;
15.1.2. the Electronic Communications and Transactions Act 25 of 2002;
15.1.3. the Regulation of Interception of Communications and Provision of Communication-related Information Act (Act 70 of 2002), and
15.1.4. the Electronic Communications Act 36 of 2005 and
15.1.5. the Protection of Personal Information Act 4 of 2013.
15.2. eKaya Web Services's compliance with these statutory provisions may require measures that would otherwise be infringements of the Customer's privacy, such as interception of the Customer's communications or the examination of Customer Data. No action will lie against eKaya Web Services for any damages that it may suffer as a result of these measures.
16. Loss of License
16.1. If eKaya Web Services cannot continue with provision of any Service because any license, permit, certificate consent, exemption or other necessary legal requirement is withdrawn, eKaya Web Services must make best endeavours to provide an alternative service to the Customer within 10 (ten) Business Days. It may do this either by utilising another of its own services, or by having a Supplier or third party provide the Service in its place.16.2. If the Customer is not satisfied with the steps taken by eKaya Web Services in clause 16.1, eKaya Web Services must cease provision of the Service in question and reduce the Fee accordingly.
16.3. If eKaya Web Services cannot provide the other Services provided under this Agreement because they depend upon a Service that has been terminated in terms of clause 16.2, the Customer may terminate this Agreement.
16.4. eKaya Web Services must provide the Customer with timely notice of the circumstances described in clause 16, if reasonably possible.
17. Risk and Ownership in Equipment
17.1. Ownership. Ownership of all Equipment is retained by eKaya Web Services (or the supplier of the Equipment as the case may be) and nothing in this Agreement must be interpreted as creating any expectation with regard to the transfer of ownership to the Customer.17.2. Purchase of Equipment. The Customer may purchase Equipment only by agreeing to do so in writing in a Service Order or by way of a separate agreement, in which case ownership in the Equipment will pass to the Customer only once payment has been made for it in full.
17.3. Delivery. Delivery of Equipment, if any, will take place when eKaya Web Services passes possession of the Equipment to the Customer, its Freight Forwarder, or a third party nominated by the Customer, or when eKaya Web Services delivers it to any location indicated in writing by the Customer where the Equipment is not under the control of eKaya Web Services.
17.4. RISK. RISK IN THE EQUIPMENT (IF ANY) WILL PASS TO THE CUSTOMER ON DELIVERY, FROM WHICH MOMENT ALL RISK OF DAMAGE AND LOSS IN THE EQUIPMENT WILL FALL ON THE CUSTOMER, WHICH MUST TAKE RELEVANT STEPS TO INSURE THE EQUIPMENT AND OTHERWISE MITIGATE ITS RISK OF LOSS THEREIN.
17.5. Delivery to 3rd Parties. If the Customer requires that the Equipment set out in a Purchase Order be delivered directly to a Customer or third party as the case may be, the Customer must procure the services of an appropriate Freight Forwarder for the purpose, and risk of loss or damage to the Equipment will pass to the Customer upon eKaya Web Services’s delivery of such Equipment to the nominated Freight Forwarder.
18. Use and Maintenance of Equipment
18.1. Only Applicable if Customer not the Owner. This clause 18 applies only where Customer is not the owner of the Equipment but risk has passed to the Customer as described in clause 17.4, for example where eKaya Web Services has leased the Equipment to the Customer, or the Customer is paying for the Equipment in instalments.18.2. Customer’s Duties. The Customer must:
18.2.1. ensure that the Equipment remains in a safe environment that is conducive to its continued operation;
18.2.2. ensure that the Equipment is used with care and that reasonable precautions are taken to avoid accidents and to safeguard it from loss or damage and excessive wear and tear;
18.2.3. notify eKaya Web Services immediately of any loss of, or damage to, the Equipment or part thereof or any failure of the Equipment to function;
18.2.4. ensure that no part or component for the Equipment is used which has not been supplied by eKaya Web Services or its authorised subcontractors;
18.2.5. ensure that the Equipment is insured at a reasonable value against any damage or loss;
18.2.6. not rent, sell, mortgage or otherwise encumber the Equipment without the prior written consent of eKaya Web Services;
18.2.7. provide eKaya Web Services with all such information as it may reasonably require to protect its right of ownership in the Equipment;
18.2.8. ensure that the Equipment does not leave the Customer’s possession, and no person other than its Personnel is permitted to use the Equipment without eKaya Web Services’s prior written consent;
18.2.9. provide reasonable access to the Equipment by eKaya Web Services or its agents (upon request) for maintenance and/or repairs; and
18.2.10. reimburse eKaya Web Services for any repairs and/or maintenance needed to the Equipment at the Time and Materials Rate, provided that the Customer authorises the cost of such repairs and/or maintenance prior to implementation.
18.3. Third Party Premises. Where Equipment is installed or stored on or at a premises which is leased from a third party or otherwise not owned by the Customer then the Customer undertakes to:
18.3.1. obtain all such consents and permissions as may be necessary so as to allow the installation and maintenance of the Equipment; and
18.3.2. in the case of a dispute with the landlord or owner of the premises, inform the landlord or owner of the premises in writing of the fact that the Equipment is the property of eKaya Web Services and does not belong to the Customer. The Customer specifically indemnifies and holds harmless eKaya Web Services in respect of any breach of this clause.
18.4. Maintenance of Equipment. Under no circumstances is the Customer permitted to authorise or carry out technical maintenance on any Equipment without the prior written permission of eKaya Web Services. Any modification or re-configuration carried out or attempted by the Customer or any third party authorised to do so by the Customer without the express prior written approval of eKaya Web Services is strictly prohibited and eKaya Web Services specifically reserves its right to claim damages should this clause be breached.
19. LIMITATION OF LIABILITY
19.1. EKAYA WEB SERVICES WILL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS THAT RELATES TO OR ARISES FROM THE SERVICES OR THIS AGREEMENT, 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.19.2. IN PARTICULAR, EKAYA WEB SERVICES WILL NOT BE LIABLE FOR LOSS ARISING FROM ANY OF THE FOLLOWING:
19.2.1. TERMINATION OF THE AGREEMENT BEFORE COMMENCEMENT OF A SERVICE, DUE TO TECHNICAL INFEASIBILITY;
19.2.2. THE CUSTOMER’S FAILURE TO TAKE ADEQUATE SECURITY MEASURES;
19.2.3. 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;
19.2.4. ANY ACTION TAKEN BY EKAYA WEB SERVICES IN TERMS OF CLAUSE 12 (SECURITY) OR CLAUSE 13.1 (SUSPENSION OF SERVICE);
19.2.5. COMPLIANCE WITH ANY STATUTE DESCRIBED IN CLAUSE 15 (STATUTORY COMPLIANCE);
19.2.6. THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES THROUGH NO FAULT OF THE EKAYA WEB SERVICES;
19.2.7. LOSS OF DATA (INCLUDING FAILURE IN BACKUP OR DISASTER RECOVERY), DAMAGED OR CORRUPTED DATA OR A DELAY OR FAILURE IN TRANSMISSIONS; AND/OR
19.2.8. CUSTOMER’S BREACH OF THIS AGREEMENT OR OTHER UNLAWFUL ACT OR OMISSION.
19.3. IF EKAYA WEB SERVICES IS NONETHELESS FOUND TO BE LIABLE FOR LOSS SUFFERED BY THE CUSTOMER, THE TOTAL AMOUNT OF EKAYA WEB SERVICES’S LIABILITY RELATING TO OR ARISING FROM THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY THE CUSTOMER FOR THE SERVICE FROM WHICH THE DAMAGE AROSE IN THE 3 (THREE) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE.
19.4. NOTHING CONTAINED IN THIS CLAUSE 19 WILL LIMIT THE CUSTOMER’S LIABILITY IN RESPECT OF CHARGES INCURRED FOR ONGOING SERVICES.
19.5. If the CPA is applicable to this Agreement, and any provision of this clause 19 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 19 will have full force and effect.
19.6. In the case of ambiguity, this clause 19 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
20. INDEMNITY
20.1. THE CUSTOMER WILL INDEMNIFY, DEFEND, AND HOLD EKAYA WEB SERVICES HARMLESS FROM ALL CLAIMS BROUGHT AGAINST EKAYA WEB SERVICES BY THIRD PARTIES AS A RESULT OF:20.1.1. THE CUSTOMER’S USE OF THE GOODS OR SERVICES OTHER THAN AS ALLOWED IN THIS AGREEMENT OR ACCEPTABLE USE POLICY;
20.1.2. 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 CUSTOMER;
20.1.3. THE INFRINGEMENT OF ANY RIGHT IN INTELLECTUAL PROPERTY BY THE CUSTOMER, INCLUDING WITHOUT LIMITATION THOSE SET OUT IN CLAUSE 10; OR
20.1.4. ANY OTHER WRONGFUL ACT OR OMISSION BY THE CUSTOMER.
20.2. THE INDEMNIFIED CLAIMS WILL INCLUDE LEGAL COSTS ON THE SCALE AS BETWEEN ATTORNEY AND OWN CUSTOMER AND ANY ADDITIONAL LEGAL COSTS.
20.3. If the CPA is applicable to this Agreement, and any provision of this clause 20 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 20 will have full force and effect.
21. Warranties
21.1. eKaya Web Services warrants that:21.1.1. it has the facilities, infrastructure, capacity and capability to provide the Services;
21.1.2. it will employ a sufficient number of suitably trained staff to provide the Services;
21.1.3. it will provide the Services:
21.1.3.1. with promptness and diligence and in a workmanlike manner and in accordance with the practices and professional standards of well-managed companies performing services similar to the Services; and
21.1.3.2. in accordance with all applicable laws and regulations.
21.2. Equipment is guaranteed under the manufacturer’s product specific warranties only, and all other guarantees and warranties including common law guarantees and warranties in relation to Equipment are hereby specifically excluded by eKaya Web Services.
21.3. Unless expressly set out in this clause and elsewhere in this Agreement or in any Service Level Availability and to the maximum extent permitted by law, eKaya Web Services does not make any representations nor does it give any warranties or guarantees of any nature whatsoever in respect of the eKaya Web Services Equipment or Services, which are provided on a "reasonable effort" basis, and all warranties which are implied or residual at common law are hereby expressly excluded.
21.4. For the avoidance of doubt, eKaya Web Services does not warrant any of the following:
21.4.1. connection quality (including throughput, availability, jitter, latency and packet loss);
21.4.2. the confidentiality, integrity and/or availability of any Customer Data;
21.4.3. the correctness of the identification of any email as spam; or
21.4.4. the success of any backup or disaster recovery service offered.
21.5. If the CPA applies to this Agreement, the provisions of this Agreement or of this clause 21 will not be interpreted in such a way as to exclude the Customer’s rights under sections 54 (Right to quality service), 55 (Right to safe, good quality goods), or 56 (Implied warranty of quality) of the CPA. These sections however apply only to the minimum possible extent. Unless the contrary is stated elsewhere in this Agreement, the Customer will have no rights in respect of quality of service, safe and good quality goods or implied warranty of quality beyond those explicitly stated in the those sections.
22. Assignment, Subcontracting and Reselling
22.1. Neither Party will be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.22.2. eKaya Web Services may sub-contract its obligations in terms of this Agreement to a third party, provided that:
22.2.1. 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 this Agreement; and
22.2.2. eKaya Web Services will at all times remain the sole point of contact for the Customer.
22.3. The Customer may not resell any Service, or otherwise provide any Service to a third party for consideration, unless otherwise specified in a Service Order.
23. Relationship between the Parties
23.1. The Parties agree that the relationship between them is one of commissioner and independent contractor, and nothing in this Agreement will be construed as giving rise to a relationship of employer and employee, whether between Customer and eKaya Web Services or between Customer and any officer, employee or agent of eKaya Web Services.23.2. This Agreement does not give rise to a relationship of principal and agent. Neither Party will not be entitled to conclude any agreement on behalf of the other, nor to sign any document on behalf of the other, unless this is specifically authorised in writing by the other.
23.3. eKaya Web Services's right to terminate this Agreement will be regulated by the law of contract alone and neither eKaya Web Services or its employees, officers or agents is "an employee" of the Customer as defined in the Labour Relations Act 66 of 1995, s1 of the Basic Conditions of Employment Act 75 of 1997 or any similar statute.
23.4. The relationship between the Parties will not be an exclusive one and both Parties will be free to enter into agreements similar to this one with third parties.
23.5. Both Parties to this Agreement (including the employees, officers and agents of the Parties) undertake to use their best endeavours and exercise good faith in implementing the provisions of this Agreement according to its intent and purpose and they further undertake to pass such resolutions and do all such acts and deeds as may be necessary, to this end.
23.6. In order to facilitate the effective provision of the Services, the Customer will:
23.6.1. allow eKaya Web Services reasonable access to its premises in order for eKaya Web Services to provide the Services, and the Customer will procure that its employees, officers and agents co-operate with and give eKaya Web Services any necessary assistance in the provision of the Services;
23.6.2. comply with any reasonable instructions given by eKaya Web Services relating to the provision of the Services, as well as eKaya Web Services’s relevant policies and procedures, which will be made available to the Customer on request;
23.6.3. enter into any agreement with a supplier necessary to allow eKaya Web Services to provide the Services; and
23.6.4. respond to any request for information, access or authorisation as soon as reasonably possible, having regard to the circumstances of the request, and eKaya Web Services may suspend or withhold provision of the Services should the Customer fail to comply with the above.
24. No Solicitation
24.1. Both Parties undertake that they will not employ any employee of the other, or any person who was an employee of the other during the previous 12 (twelve) months. This restriction applies during the term of this Agreement and for a period of 6 (six) months after its termination for any reason. "Employ" includes persuading, encouraging or procuring the employee to be employed by or through the guilty Party or any of its subsidiaries, and by doing so directly or indirectly. The restriction also applies to inducing an employee to terminate his or her employment.24.2. The provisions of clause 24 do not prohibit either of the Parties from considering any application for employment submitted on an unsolicited basis or in response to a general advertisement of employment opportunities.
25. Application of the Consumer Protection Act
25.1. If the Customer is a juristic person then the CPA applies to this Agreement only if both the Customer’s asset value and annual turnover (the "Business Values") are less than R 2 000 000 (two million Rand) (the "Threshold Value") on the date the applicable Service Order is executed. Both the Business Values and the Threshold Value may be amended in terms of the CPA.25.2. eKaya Web Services's duties under this Agreement may vary depending upon whether the CPA applies to this Agreement, and eKaya Web Services will act upon the information given by the Customer in this regard. Consequently:
25.2.1. the Customer warrants that any statement made to eKaya Web Services in respect of its Business Values is accurate.
25.2.2. If the Customer claims that all the Business Values are below the Threshold Value, or otherwise that the CPA applies to this Agreement, eKaya Web Services may at its instance require the Customer to provide it with financial statements as proof thereof.
25.2.3. If the Customer misstates the Business Values (whether negligently or otherwise) in such a way that eKaya Web Services believes that this Agreement is subject to the CPA when it is not, then eKaya Web Services may retroactively apply any provisions of this Agreement that were not applied as a result of this belief.
25.2.4. The Customer will be liable for any costs or damage sustained by eKaya Web Services resulting from such misstatement.
25.3. If the CPA is applicable to this Agreement, the provisions of the CPA will be applied and take precedence where they contradict any provision of this Agreement.
26. Breach and Termination
26.1. If the either Party:26.1.1. fails to comply with any of its obligations or commits a breach of this Agreement and fails to remedy the default or breach within 5 (five) Business Days after having received a written notice to do so,
26.1.2. resolves to begin business rescue proceedings as contemplated in chapter 6 of the Companies’ Act 71 of 2008,
26.1.3. is placed in provisional or final liquidation or sequestration, or judicial management,
26.1.4. enters into any compromise arrangements with its creditors,
26.1.5. fails to satisfy a judgment taken against it within ten (10) Business Days, or
26.1.6. falls under the controlling interest or ownership of a competitor of the other Party (for the purpose of this clause, the Party which makes this allegation will carry the burden to prove it), the other Party will be entitled either:
26.1.6.1. to hold the Party in breach to the Agreement; or
26.1.6.2. to cancel the Agreement.
26.2. The provisions of this clause will not affect the rights of either Party to claim damages in respect of a breach of any of the provisions of this Agreement.
27. Notices
27.1. 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):27.1.1. in the case of eKaya Web Services, as set out in clause 1.1 of this document, and
27.1.2. in the case of the Customer the addresses set out in the most recent Service Order agreed between the Parties.
27.2. Either Party may vary its given postal address or other contact details by notifying the other Party in writing. Postal addresses must be located within the Republic of South Africa.
27.3. Any notice given in terms of this Agreement must be in writing and any notice given by any Party to another ("the addressee") which:
27.3.1. is delivered by hand will be deemed to have been received by the addressee on the date of delivery; or
27.3.2. if sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax and if outside such Business Hours then at the beginning of the next Business Day; or
27.3.3. is transmitted by email will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee; or
27.3.4. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its chosen postal will be deemed to have been received by the addressee on the 7th (seventh) day after the date of posting.
27.4. Despite the above:
27.4.1. any notice that eKaya Web Services sends by email to an email account hosted on the eKaya Web Services System by the Customer will be deemed to have been received by the Customer on the date of transmission; and
27.4.2. if a written notice or communication is actually received by one of the Parties from the other, this will be adequate written notice or communication to that Party.
28. Disputes
28.1. In the event of any dispute arising between the Parties regarding this Agreement or any Service, the Parties will act in good faith to attempt to settle the dispute through discussions between the relevant representatives of the Parties within 30 (thirty) days of a Party giving the other Party notice of the issue in dispute. The Parties will follow any dispute or complaints resolution process that eKaya Web Services may have in place.28.2. Any dispute which cannot be resolved by the Parties within the 30 (thirty) days period, as provided in this clause 28, will be resolved by arbitration in the English language by a single arbitrator appointed by the Arbitration Foundation of South Africa and in accordance with the Rules of the Arbitration Foundation of South Africa.
28.3. Notwithstanding the provisions of this clause 28, either Party will have the right to seek relief by way of interim relief from any court of competent jurisdiction.
28.4. Pending final settlement or determination of a dispute, the Parties will continue to perform their subsisting obligations hereunder.
28.5. Notwithstanding the above, the Customer consents to the jurisdiction of the Magistrate’s Court in respect of any action initiated for the recovery of overdue payments, notwithstanding that the amount summonsed for exceeds such jurisdiction, the decision on which Court to proceed being in the sole discretion of eKaya Web Services.
28.6. Nothing in this clause 28 must be interpreted so as to restrict the Customer’s right to approach the tribunal of its choice in terms of the CPA, if it is applicable.
28.7. This clause is separate from the rest of the Agreement and will remain effective between the parties if this Agreement is terminated.
29. Force Majeure
29.1. Neither Party will be liable for any delay or failure in performing any obligation under this Agreement due to any cause beyond its reasonable control, including without limitation: industrial action, sabotage, terrorism, civil commotion, riot, war, fire, explosion, storm, flood, or other natural physical disaster, any act or policy of any state or government or other authority having jurisdiction over either Party, sanctions, boycott or embargo, termination or suspension of upstream service.29.2. If a delay or failure referred to in clause 29.1 occurs, this Agreement will be suspended for as long as the cause of the delay or failure lasts. If the suspension is longer than three months, either Party may terminate this Agreement by written notice to the other.
30. Interpretation
30.1. This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa.30.2. In this Agreement, unless the context requires otherwise: words importing any one gender will include the other gender; the singular will include the plural and vice versa; a reference to natural persons will include created entities (corporate or unincorporate) and vice versa.
30.3. Words and expressions defined in any clause will, for the purposes of that clause, bear the meanings assigned to such words and expressions in such clause.
30.4. If any provision is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in a definitions clause, effect will be given to it as if it were a substantive provision in the body of the agreement.
30.5. Clause headings have been inserted for convenience only and will not be used for nor assist or affect its interpretation; where a clause number is cited, it will be deemed to include reference to all subclauses of that numbered clause.
30.6. The rule of construction that an agreement will be interpreted against the Party responsible for its drafting or preparation will not apply.
31. General
31.1. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to and signed by both parties will be of any effect.31.2. If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still be enforceable.
31.3. The signatories/ parties hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under this Agreement should they prove not to be so authorised.
31.4. In the event that any part of this Agreement is found to be partially or fully unenforceable for any reason, this will not affect the application or enforceability of the remainder of this Agreement.
31.5. By using the Products and Services, you are consenting to receive communications from the Provider. The Provider may send the Customer newsletters concerning new features, specials, promotions and other related services that the Provider may offer.
32. Domain Registration, Renewal, Redemption, Deletion and Domain Parking
32.1. The Registered Name Holder agrees to enter into a Registrar Registrant Agreement with the Provider when registering or transferring a domain with/to the Provider.32.2. Ownership of the domain is the Customer’s, only after full payment has been received.
32.3. Payments for a domain name registration are non-refundable. Once a domain name is registered, the WHOIS database stores the information and it is kept there for a period of one year, until the date of renewal (‘Domain Parking’). Payment will NOT be credited back.
32.4. Domain Parking does NOT include Disc Space, Hosting, or Email facilities.
32.5. The Provider shall be indemnified and held harmless by the Customer if the Customer uses any Domain Name that infringes on any rights of any person, or company.
32.6. The Provider does not guarantee that a Domain Name requested by a Customer will be available. Provider’s systems may reflect that the Domain Name requested is available; however, this domain may have been already taken, as the Provider’s system is reliant on server updates from both local and international WHOIS servers.
32.7. As the Provider is a reseller of various domains, the Customer agrees to abide by the terms and conditions of the various domain registries/ registrars worldwide, when registering a domain with the Provider.
32.8. As Domain registries/ registrars charge a Registration Fee, Renewal Fee and Redemption Fee (This is the period after suspension by the Registry), the Customer agrees to pay the Provider the fees that relate to the registration, renewal, redemption, maintenance, or administration, of the Domain Name. These fees are not refundable.
32.9. The Registrant Name Holder has up to 10 days after the Domain Expiry date to renew the domain. After which time the domain will enter the redemption Grace Period.
32.10. Once the Domain has entered the Redemption Grace Period, The Domain will be suspended at the Registry and have a status of RGP (Redemption Grace Period). The registrant name holder has 20 days restore their domain at a fee of R650.00.
32.11. Once the Redemption Grace Period has passed, the domain will be deleted from the Registry and is available to anyone to register as a brand new name.
32.12. Should the Registered Name Holder activate auto-renewal on their domain name, the Registered Name Holder will be invoiced 30 days prior to the expiry of the domain. Once the Invoice has been paid, the domain will automatically be renewed for an additional year at the Registry.
32.13. Should the Customer misspell a Domain Name and the misspelt domain is registered, the Customer will be held liable for payment of the misspelt domain. No domain registration fee will be credited, and the Customer will then have to register the correctly spelled domain name at the cost of a new domain registration.
32.14. The Provider, through eKaya Web Services, is an official accredited Registrar of UniForum SA and as such all .co.za domains names are registered via the new accredited EPP system. Any domain registrations registered with the Provider, on the EPP system, cannot be transferred back to the legacy system, or be transferred to any other company that uses the legacy system; domains can only be transferred between Registrars.
32.15. Should a Customer request the Provider register a new .co.za domain on their behalf, and do not want to use the EPP system, the Customer must notify the Provider of this prior to registration.
32.16. Should a Domain Name be registered on the EPP system and a Customer requests to move their hosting, the Provider can point all DNSs (name servers) elsewhere, allowing the Customer, in effect, to host their domain elsewhere. Should the name servers point to another ISP that is not accredited, or whom does not have EPP, the domain can/ will be released at a later date, by written instruction from the client to the ISP/ hosting provider, once they are EPP enabled.
32.17. Front-end consumer clients will receive email based domain renewal notifications 60, 30, 14, 7 and 1 day prior expiry.
32.18. Resellers or clients of resellers will receive email based domain renewal notifications 60, 30, 14 and 7 days prior expiry.
32.19. Premium domains: As various registries worldwide mark high value domains as premium domains, these domains cost more. The provider will make every effort to apply pricing of a premium domain prior to checkout however this may not always be possible. Should the client have paid for domain which will marked/ reflected as premium a full refund of the regular price will be given.
32.20. Domain Availability: While the provider makes every effort to display accurate domain availability data and every attempt to secure a domain for the customer. On searching for a domain name via our/the registry WHOIS, the WHOIS service may show the domain as available however said domain may already be reserved/ allocated/ registered by another registrar or by another client. The provider shall not be held responsible in the event of a client registering/ paying for a domain while the WHOIS reflects different information. The provider shall remit a full refund to the client in cases where this happens.
32.21. Time lapse between domain availability search and payment: As there is a time delays between the domain availability search, and the payment of the said domain, it may be possible that multiple parties are registering the same domain at the same time, the domain will be provisioned to the party that has paid first and the registry will reflect this party as the registrant.
In visiting this website the Customer and/or End User is/are required to provide information (a) to register a domain name, (b) to update information about a domain name previously registered, or (c) to submit questions about the Provider’s products and/or services.
To register a domain name, the Customer and/or End User are required to provide the following:
• the name they are registering,
• their name and address (or those of the person for whom the Customer and/or End User are registering the domain name),
• technical information with which the domain name will be associated,
• the name, address, email address, telephone number, and where available, a fax number for the technical, administrative, billing, and zone contact information for the domain name.
Once the domain name has been registered, the Customer and/or End User maybe be asked to correct and/or update said information periodically, in order to ensure the WHOIS information is correct. Any administration, billing, and technical contact information that is added to a domain name may be available on the WHOIS server for public viewing.
In terms of the Provider’s ZACR accreditation, the Provider will provide information the Customer and/or End User submitted in registering a domain name, or updating related information, to the Provider’s own employees and consultants, to the administrator of the registries, to operators and users of the Internet, whom may request Whois information related to the Customer and/or End User’s domain-name registration. This information may be provided to the ZA Central Regsitry (ZACR), which provides technical coordination for the Internet, and to escrow agents, auditors, Whois service providers, and replacement registrars that ZACR may designate.
Information the Customer and/or End User provides, in asking questions related to the Provider’s service, may be given to the Provider’s employees and consultants and, upon its request, to ZACR.
