Between: DiaMatrix ("the Provider") and (the "Customer")
This agreement is between DiaMatrix, whom shall hereafter be referred to as ("the Provider"), and the Authorized Person / Company / Entity as mentioned above. The Duly Authorized Person / Company / Entity / Signatory mentioned above shall hereafter be referred to as the "Customer". By using the Provider’s website, hosting, design, list management & SMS facilities, the Customer agrees to the following terms and conditions.
Conduct that violates South African Law, regulatory conditions, and / or the accepted Netiquette on internet, is expressly prohibited.
1. ACCOUNT INFORMATION:
- Subject to the provisions hereof, the account will be opened upon receipt of an initial Customer Details Form and Debit Order Instruction, or completed Order Form from the DiaMatrix websites.
- This term of the agreement shall remain in force for successive monthly / quarterly / bi-annually / yearly periods as agreed at the then applicable rates or fees, unless Written Notice of Cancellation is received from the Customer giving 1 (one) calendar month’s notice for services offered.
- This amount is non-refundable and applicable to all services supplied by the Provider, other than the Hosting Service - refer Money Back Guarantee
- A refund is only applicable should the services be cancelled within our Money Back Guarantee period. The refund is only applicable to certain of the Provider's services and NOT the Provider’s Domain Registration service.
- The agreement for services rendered shall continue indefinitely and shall terminate on the expiry of the said written notice (refer above).
- Should the Customer enter into a specified fixed contract for web development services rendered, then that agreement shall terminate after said period and the regular hosting pricing structure shall continue thereafter.
- Fees for monthly / quarterly / bi-annually / yearly periods of services rendered are payable prior to the beginning of each relative period i.e. monthly, quarterly, bi-annually, or yearly.
- The Customer hereby agrees to pay any and all legal fees, and related expenses incurred by the Provider in the collection of any outstanding amount due the Provider.
- Should any Customer register for any product/s, or service/s in the name of the Company and such product / service not be paid by the Company, for any reason whatsoever, the Customer shall be held responsible and liable in their personal capacity for the payment of any / all products / services, as registered for. Should any Customer register for any product/s or service/s in the name of the Company and the Company declares insolvency, then the Customer shall be held responsible and liable in their personal capacity for the payment of any / all products / services. Should a Customer apply for Debt Relief while subscribed to the services of the Provider, the Customer will still be held liable for any funds owed to the Provider based on the Debt Relief agreement. Should the Customer at any point fail to pay the Provider any amounts owed according to the Debt Relief agreement, the Customer shall then be immediately liable for the all full outstanding amounts owed. The Provider reserves all rights to take legal action against the Customer in this regard.
- Generally, Customers are given a 7-day grace period, i.e. up until the 7th of each month, after which, the Customer’s account may be suspended automatically by DiaMatrix’s Billing System. Any Customer’s account whose payment status is not deemed ‘current’ by the 7th of the following calendar month will be deemed as ‘late’.
- If the amount due for services charged is declined or dishonoured, the Provider has the right to immediately suspend / cancel the Customer’s account and close the account without notice.
- Re-activation of suspended accounts will incur a reactivation fee of R75.00 Ex Vat.
- Subscription payments may be made by any of the following methods:
- Credit Card (Instant Activation)
- Debit Order (Only once we have this information will your account go live)
- Direct Transfer (Once proof of payment is received will your account go live)
Only a Credit Card payment, or the receipt of a signed Debit Instruction, will allow services to be made live. Payments via Electronic Transfer (EFT), or Cheque, will only be made live once the payment has been cleared.
- The Provider reserves the right to adjust service charges at their sole discretion. Price changes shall be based on a combination of CPI and electronic communications industry pricing / rate adjustments. Existing Customers will receive 30 days written notice relating to any price adjustments for any such services offered.
- In the event of a dispute between the Provider and the Customer, the Customer is obliged to continue paying the charges as they become due and payable in terms of this agreement. The Customer may not withhold payment for any reason.
- The Provider reserves the right to provide services to any Customer. Should the Provider not wish for any reason to provide said services, the Provider may ask the Customer to move said services to another provider with immediate effect.
- All transactions are processed in South African Rands (ZAR).
- Payments via Cash or Cheque: Payments using these methods are only accepted for bi-annually and annually services.
- Should the Customer elect to pay via Cash or Cheque payments, services shall only be activated once the proof of payment has been faxed through to the Provider and the said amounts cleared by the bank. The Provider is not responsible for domains being lost / taken by another party during the period between the registration and the receipt and clearing of payment for said domains.
- Ownership of goods or services provided by the Provider will only transfer to the Customer once full payment has been received.
- Costs incurred by the Provider that are either directly, or indirectly, related to services used by the Customer, shall not be refunded. (e.g. Domain Registrations, Modems etc.)
- 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.
- The Customer agrees that the Domain / DNS details shall not be changed / modified or moved away from the Provider until full payment is made to the Provider for all services where outstanding monies are owed.
- If the Customer’s account has not been paid in full, the account and all relevant information will be handed over to an external collection agency.
- The Customer warrants that any and all information (e.g. Banking details / Credit Card details / Contact people) supplied to the Provider is correct and that the Customer has the right use said information. Should the Customer use information illegally, the Provider
- has the right to take appropriate action against the Customer.
- The Customer agrees that the Domain / DNS details shall not be changed / modified or moved away from the Provider until full payment is made to the Provider for all services where outstanding monies are owed.
- If the Customer’s account has not been paid in full, the account and all relevant information will be handed over to an external collection agency.
- Redemption Period: should a .co.za or any other TLD enter the redemption period (This is the period after suspension by the Registry) there will be an addition cost to renew / take out of redemption of R275.00. This value includes the cost of renewal of the said domain for the next year.
2. APPLICATION OF THE CONSUMER PROTECTION ACT
- Notwithstanding the provisions of clause 1.2, in the event that the Customer is not a juristic person, the Provider must give written notice to the Customer not more than 80 and not less than 40 business days before the expiry of the current period. This notice must inform the Customer of:
- the expiry date,
- any material changes that will apply to the Services beyond the expiry date, and
- the Customer's right to either terminate the Service or renew for a further fixed period.
- Should the Customer not either terminate or renew the Service, the Service shall automatically renew on a month-by-month basis after the expiry of the initial period or any successive period, subject to any material changes set out by the Provider in its notice to the Customer.
- Should the Consumer Protection Act (“CPA”) be applicable to this agreement, the provisions of this agreement shall not be interpreted so as to exclude the Customer’s rights under sections 54, 55, and 56 of the CPA, which are admitted only to the minimum possible extent. Unless the contrary is stated elsewhere in this agreement, the Consumer shall 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 aforementioned sections.
- A transaction (as defined in the CPA) between the Customer and the Provider may or may not fall under the provisions of the CPA depending upon whether certain values set out in clause 2.4 in respect of the Customer (“Threshold Values”) are below a certain value at the time the transaction is entered into.
- The Threshold Values are the Customer's asset value or annual turnover (or such other measurement as may be dictated by the CPA as amended from time to time), and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
- Should the CPA be applicable to this agreement or to the relevant Service Order, the provisions of this agreement or of this clause, shall not be interpreted so as to exclude the Customer’s rights under sections 54, 55, and 56 of the CPA, which are admitted only to the minimum possible extent. Unless the contrary is stated elsewhere in this agreement, the Consumer shall 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 aforementioned sections.
- The Provider's duties under a particular Service Order may vary depending upon whether the transaction in question is subject to the CPA, and the Provider will act upon the information given to it by the Customer in this regard. Consequently:
- The Customer warrants that any statement made to the Provider in respect of its Threshold Values is accurate;
- If the Customer claims that all the Threshold Values are below the relevant value, or otherwise, that the CPA applies to the transaction in question, the Provider may at its instance require the Customer to provide it with financial statements as proof thereof;
- If the Customer misstates the Threshold Values in such a way that the Provider considers for a period that the transaction is subject the CPA when it is not, all provisions of this agreement, that do not apply to transactions subject to the CPA, shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by the Provider resulting from such misstatement.
- The Customer agrees not to use any server side programs that require an unusual amount of resources.
- If and when the Customer’s website processing usage exceeds what is considered usual, the Provider shall submit a new pricing structure based on usage, additional server requirements and possible additional hardware needed to the Customer that may be deemed appropriate for such usage by the Provider.
- If the Customer declines the said structure, then the Provider may limit the Customer’s utilisation of processing time, suggest an alternative solution or cancel the ‘User's’ account at the discretion of the Provider.
- The Provider shall be the sole arbiter of what constitutes unusual amount of server usage.
- Violation may result in termination of access to the Provider's services.
- Websites designed to distribute software and/or multimedia files are subject to special pricing.
- CGI usage limits are in place to protect other Users that may be utilising the same servers as the Customer, commonly known as Shared Hosting. Any Customer that uses abnormal amounts of resources may be throttled, or limited, by the Provider at the Provider’s discretion.
- The Provider reserves the right to move the Customer’s domain to a different server / infrastructure should the Provider deem this necessary.
- The Provider reserves the right not to provide services to any Customer that provides any type of gaming, sex, chat, illegal services or online service that may abuse bandwidth / server resources, or may infringe on the quality, or service, provided to other users, on the same infrastructure.
- The following have been limited by the Provider: Crons, CGI Scripts, etc.
- The Customer will not run a mail server, or send out bulk mailings, using scripts within their account.
- The Provider has limited the size of mail boxes dependant on the type of account the Customer has subscribed to.
- Should another person within the company, or entity, of the Customer require login and / or password details and said person is not known by the Provider, the Provider can request authorization from the Customer who has setup the account before giving out such information. Only when such notification is received in writing from the Customer, will said information be given out.
- It is the Customer’s sole responsibility to whom they give out their User name and Passwords to. Should the Customer believe such information has been compromised, it is the Customer’s duty to change said information from within their control panel and notify the Provider immediately of said compromise.
- The Customer agrees to use all the Provider's services at the Customer's own risk.
- The Provider specifically disclaims all warranties of merchantability and fitness for a particular purpose of quality accuracy and privacy.
- The services, products and information obtained on, or found through, or in conjunction with, the website are provided ‘voetstoets’ (as is), without warranty of any kind, either express or implied.
- Use of any information obtained via the Provider's facilities / services is at your own risk. The Provider specifically denies any responsibility for the accuracy, or quality, of information obtained through its services.
- In no event shall the Provider be liable for any loss, or loss of data, or any other damages.
- The Customer shall hold the Provider harmless against any claims that the Customer may have against the Provider for any services that the Provider may provide.
- Should the Customer have any domain related issues for services that the Provider provides to another User, the Provider will abide by the decisions made by the South African Court of Law.
- The Customer agrees to protect and indemnify the Provider against any and all liability, loss, or expenses, arising from claims of defamation, unfair competition, unfair trademarks, trade names or patents, violations of rights, and privacy and infringement of copyrights and property, resulting from the Provider's or any Customer’s use of the Provider’s services.
- The Provider will not be responsible for any damage the Customer may suffer, this includes loss of data resulting from delays, non-deliveries, or service interruptions caused by its own negligence or the Customer’s errors and / or omissions.
- Use of any information obtained via the Provider's services is at your own risk. The Provider specifically denies any responsibility for the accuracy or quality of information obtained through its services.
- The Customer subscribed to the Provider's services, agrees to indemnify and hold harmless the Provider from any claims resulting from the use of the service that damages the Customer or any other party
5. USE OF SERVICES:
- The Customer will make use of the services as set out in the Acceptable Use Policy (“AUP”) which forms part of these terms and conditions. All complaints shall be investigated and if the Customer is found to be contravening the AUP, the Provider may take such action against the Customer as set out in the AUP, including suspension, or termination, of service.
- The Customer is prohibited from allowing any other party access to any services through the Customer's unique internet address, User Name and / or Password.
- The subscriber may not at any time use the service in contravention of any South African Law, and consents to the jurisdiction of the High Court of South Africa sitting in Pretoria.
- The use of the e-mail system by the Customer to send unsolicited e-mail is not permitted;
- All complaints shall be investigated and Customers abusing these services shall have their contracts suspended, or terminated, immediately.
- The Customer specifically agrees not to use the Provider's services in any manner that is illegal, libellous, or against any the Provider's policies.
- The Provider does not permit adult material of any form (including but not limited to images, text, sound, video, etc.) to be published through this site.
- The Customer is NOT permitted to distribute material promoting hatred against individuals or groups, or any content, which may be deemed to be illegal, or offensive, according to the laws of South Africa.
- The Provider reserves the right to decline requests for services at its discretion.
- Use of any information obtained via the Provider's services is at the Customer’s own risk. The Provider specifically denies any responsibility for the accuracy, or quality, of information obtained through its services.
- The Customer agrees not to post, or transmit, any file that contains a virus, worm, ‘Trojan Horse’, or any other destructive feature, regardless of whether damage is intended, or unintended, by the Customer.
- The Provider's servers / services may be used for lawful purposes only.
- Transmission, storage, or distribution of any information, data, or material, in violation of any applicable law or regulation is prohibited. This includes, but is not limited to: copyrighted material, trademark, trade secret, or other intellectual property right, used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of non-acceptable content or links: Pirated software, Hackers programs or archives, Warez sites, MP3, and IRC bots.
- The subscribed Customer to the Provider's services agrees to indemnify and hold harmless the Provider from any claims resulting from the use of the service that damages the Customer or any other party.
- The Provider will be the sole arbiter as to what constitutes a violation of this provision.
- Pornography is not allowed at the Provider’s services and any material of this nature will cause the Customer’s account to be shut down immediately and without financial refund.
- Should any dispute between the Customer and a 3rd party result over a domain name, website, website content or anything else related to the Customer, the Provider shall either at its own discretion or that of a Court Order, suspend, remove or cancel the Customer’s services and or account.
6. TECHNICAL SUPPORT & USAGE
- The Provider does not provide technical support for website design, html, cgi or any other scripting that may have been developed by the Customer, or 3rd party, etc.
- It is the Customer's responsibility to know at least the basics of web development (of whatever nature) and how FTP and/or publishing of a website functions.
- You may not compile or install binary files other than the ones provided for on the Provider’s system.
- The Provider does not make C compilers available for Customers, and the PERL binaries provided will not have networking support (for example, socket.ph, ftp.pl, etc.).
- Should there be any program which the Customer would like added to the available system binaries, or scripts, please contact the Provider for approval.
- Violations of the Provider's system, or network security, are strictly prohibited and may result in criminal and civil liability. Examples include, but are not limited to, the following: unauthorized access, use, probe, or scan of a system’s security, or authentication measures, data or traffic. Interference with services to any Customer, host or network including, without limitation, mail bombarding, flooding of e-mail, or any spam mail, deliberate attempts to overload a system and broadcast attacks.
- The Provider does not allow the sharing of cgi-scripting with domains not hosted by itself.
- Any cgi-scripts deemed to be adversely affecting the server performance, or the network integrity, will be shut down without prior notice.
- The Provider will not allow any Customer to undermine, or cause any damage in any format what-so-ever, to another Customer of the Provider's services, this is strictly prohibited.
- Any sub-networks of the Provider and dedicated servers must adhere to the above policies.
- The failure to meet, or follow, any of the above guidelines, are grounds for the cancellation of the Customer’s account.
- The Provider reserves the right to remove any Customer’s account without prior notice.
- The Provider will not be held liable for any content that a Customer, using the Provider’s services, displays on the Customer’s website, etc.
- Should the Customer rent an IP address from the Provider this IP address remains the sole property of the Provider. The Provider may request, from the Customer, as to why the Customer requires additional IP addresses and for what these additional IP Addresses will be used. The Provider reserves the right to provide additional IP Addresses as these are in short supply worldwide.
- Should the Customer cancel its services with the Provider the IP address will automatically return to the Provider and the Customer shall have no rights or entitlement to the IP address thereafter.
7. DOMAIN REGISTRATION & PARKING
- Ownership of the domain is the Customer’s, only after full payment has been received.
- Payments for a domain name registration are non-refundable. Once a domain name is registered, the WHOIS database stores the information and is kept there for a period of one year, until the date of renewal (‘Domain Parking’). Payment will NOT be credited back.
- Domain Parking does NOT include Web Space, Virtual Hosting or E-mail facilities.
- 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 / company.
- The Provider does not guarantee that a domain name requested by a Customer will be available. Should the Provider’s systems may reflect that the domain name requested is available, however, this domain may have been taken already, as the Provider’s system is reliant on server updates from both local and international WHOIS servers.
- As the Provider is a reseller of various domains, the Customer agrees to abide by the terms and conditions of the various domain registrars worldwide, when registering a domain with the Provider.
- As Domain registrars charge both a registration fee and a renewal fee, the Customer agrees to pay the Provider the fees that relate to the registration, renewal, maintenance, or administration, of the domain name. These fees are not refundable.
- Should the Customer misspell a domain name and the said domain is registered, the Customer will be held liable for payment of the misspelt domain. No domain registration fee will be credited. The Customer will then have to register the correctly spelled domain name at the cost of a new domain registration.
- Once an account has been created the DNS entries are created and the ticket for the domain is sent off, this may take up to 24 hours to complete.
- The Provider (DiaMatrix) 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.
- 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.
- Should a domain name be registered on the EPP system and a Customer requests to move their hosting away, 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.
8. HOSTING SERVICE
- Each web hosting plan allows for a specific amount of monthly transfer for bandwidth utilization purposes, a month is defined as one calendar month.
- Bandwidth utilization is dynamically and continuously measured, sites exceeding their allotted rate will be charged at the prescribed rate per MB / GB bandwidth, or automatically suspended, depending on the Customer’s account type (Refer to Customer’s hosting package for further details).
- Should the Customer not opt to add additional bandwidth to their account, the billing system will automatically suspend said account, including, but not limited to, the website and e-mail accounts.
- It is the Customer’s responsibility to choose the level of transfer rate that their site requires.
- The Customer shall be responsible for backing up their data / files at all times. The Provider will not be held liable for any data / information loss.
- Upon termination of the Customer’s agreement with the Provider, it is the Customer’s responsibility to backup and or move all the Customer’s files from the Provider’s servers.
- The Provider shall delete all files, content, information, scripts, etc. from its servers upon the acceptance of transfer request of a Customer’s domain/s to another service provider. The Customer shall have no recourse against the Provider should there be any loss, or damage, of whatsoever nature, to any files that were not backed up as per the above clause.
9. EMAIL SERVICE
- E-Mail Accounts are restricted to a maximum size, dependant on the Customer’s account option. If this space is exceeded, this may result in e-mails being lost, e-mails being bounced, or the Customer’s account being suspended.
- If any Customer’s account is generating web traffic considered unusually high, the Provider may require the site to be placed on a Heavy User server, either locally or internationally, at the discretion of the Provider.
- The Provider provides e-mail anti-virus on the Provider’s servers, this anti-virus is updated automatically every 6 hours, the Provider will do its best to ensure that no viruses are passed through its infrastructure. However, due to the nature and pace at which viruses are transmitted, the Provider will not be held responsible should a virus pass through its anti-virus system.
- The Provider provides a Spam Filtering system on its servers. It may happen that occasionally legitimate e-mail may be defined as spam or vice versa, the Customer may at any time de-activate this within the Customer’s account. The Provider will not be held responsible should e-mails be deleted or tagged as spam.
10. WEBSITE DESIGN TERMS
- The Quotations sent out by the Provider are general CMS quotations and do not include any specific coding customizations, unless specified in the said quotation. Any Custom Development will be specified to the Customer and the Customer will have the opportunity to reject the Custom development. Should the Customer reject such a quotation no Custom Development will be included in the website development. Website ‘Content’ shall include all content to be included in the website, including but not limited to, textual materials, logos, photographs, sound files, databases, video files and other website content. All Website Content required to be included in the website, as defined in the specifications, but excluding those items that shall be the responsibility of the Customer to supply.
- Logo files and photographs shall be supplied in the following formats: GIF, JPEG, TIFF, PNG, and BMP, written text shall be in a Microsoft Word, or .txt formats, video files shall be in .AVI, .MOV, .FLV, MPEG format, and sound files shall be in Mp3 file format.
- The Customer shall be responsible for delivering all Website Content except for those items that the Provider has specifically agreed to create. Customer is to supply all Content (in the indicated formats above), as well as all Meta Tags and Meta Keywords, for all website pages created by the Provider. Should the Customer not supply the respective information, the Provider will insert Global Keywords and Meta Tags. The Provider will not be held responsible should the said Global Keywords and Meta Tags not be suitable for the Customer. The Customer will be shown how to add, edit and replace such content at their own leisure.
- The Provider is hereby authorized to utilize any such subcontractors as may be reasonably required without the express permission of the Customer. The Provider shall use its reasonable efforts to meet the completion schedule, if such a schedule is agreed upon with the Customer, however, the Customer acknowledges and agrees that any changes or deviations in the specifications, site plan, mock-ups, graphics, or any other element of the Website, Customer delays in fulfilling Customer’s responsibilities, include delivering Site Content and promptly reviewing and commenting on completed work, will lead to delays in the completion schedule. The Provider will not be held liable in any way whatsoever, should any delays be a a result of the Customer, as defined, but not limited to, the above.
- The Customer shall have a period of 14 days following delivery of the final Website during which the Customer may engage in the testing of said Website. The Customer shall notify the Provider, no later than the 14 days following delivery of any items contained in the Website, which do not conform to specifications, or are not deemed to be working. In the event that the Customer does not so notify the Provider within the specified 14 day period, the Customer shall be deemed to have accepted the Website in all respects and aspects thereof.
- The Provider shall retain a backup of the Website files relative to the accepted Website for a period of 14 days following the final acceptance by the Customer. Thereafter, the Provider shall destroy all copies of the Customer’s Website, unless the Provider is also providing the hosting of the Customer’s Website and pursuant to a separate hosting agreement.
- In consideration of the services to be performed by the Provider hereunder, the following are the payment Terms and Conditions. Upon achievement of the various stages of development that require an additional payment to be made to the Provider, the Provider shall notify the Customer in writing that said stage of development has been reached and shall deliver such deliverables that corresponds to that stage of development to the Customer, together with an e-mail notification for the amount due at said stage of development. The Customer shall make payment on said invoice within 7 days after receipt of such e-mail notification. The Provider reserves the right not to continue development of said Customer’s website until such payment is made. Should the Customer delay payment, any and all Time Schedules for the website, will automatically become obsolete.
- 50% deposit is required upon commencement of the development process.
- 30% payment on accepting the template, layout or Design.
- The balance of 20%, is due 14 days after acceptance of template, layout or Design
- Payment Terms are strictly Cash on Delivery.
- Any quotations are valid for 14 days from the date stated.
- Should the Customer want the website to go ‘live’ prior to a hand-over, or completion from the Provider, or if the Customer specifically would like the website to go ‘live’, the full outstanding payment will be deemed due immediately. Should the Customer require the login details to the Administrator section of the website, the Provider will not be held responsible, or liable, for any faults and / or errors on the website as the Customer will be deemed to have effectively taken over said website. Should the Provider have completed their portion of the website and the Customer has yet to furnish content, the Provider may request that all outstanding monies be paid in full and the website will be completed as per the quotation when the Customer furnishes the Provider with the outstanding content.
- Once the job completion form has been signed-off, the website will be deemed completed and all payments will immediately fall due. The Customer has 14 days after sign-off to inform the Provider of any issues there may be with the website, thereafter, the Provider cannot be held responsible. Should the Provider NOT be hosting the Customer’s website, immediately after the website has been uploaded on the Customer’s hosting service, the website payment will become due. The Provider will not be held responsible should the website be hacked in any shape, or form.
- The parties acknowledge and agree that all expenses associated with the development process, including but not limited to payment of any licensing fees, software procurement, costs of purchasing graphics, photographs and other web content, materials, supplies, and all other elements of the website development shall be absorbed by the Customer. These costs if any will be explained to the Customer and should the Customer not agree to such costs the respective content, etc., mentioned above, will not be purchased.
- In the event that this agreement is terminated prior to completion of the Website, the Provider shall be compensated for any and all work that has been completed prior to the date of termination. If no set price is given for work completed, the Provider reserves the right to cost the work completed based on its standard hourly rate for any work completed prior to termination. This may include, but is not limited to, the design of layouts, templates, graphics, Flash Animation, etc.
- Following completion of the Website, and final acceptance by the Customer and at the Provider’s discretion, for a period of 12 months after the Website is launched, the Customer shall include a credit to the Provider on all pages of the Website. The credit to the Provider shall be designed and placed in a way that has form and substance, and that is reasonably acceptable to the Customer. The credit shall also include a hypertext link to the Provider’s Website.
- It is the responsibility of the Customer to Proof Read ALL content supplied, the Provider does not, and will not, proof read any content, as everybody has their own writing styles.
- It is the Customer’s responsibility to pay all outstanding monies within the agreed upon time-frame. It is not the responsibility of the Provider to supply content for the Customer’s website. The Provider reserves the right to take further action against the Customer for the failure to pay any outstanding monies for the website design, within the agreed upon time frame.
- It is the responsibility of the client to ensure to the maintenance of their CMS website after its completion, in whatever form, i.r.o. updating of information, CMS software upgrades, patches, etc.. The Provider offers a CMS service plan on request.
- Should the Client not choose to use the Provider’s CMS maintenance plan, the Client will NOT hold the Provider responsible at any point in the future for the following issues, but not limited to: data loss, technical support, CMS software errors, updates, hacks, bugs and security.
- The Provider reserves the right to offer an upgrade path at a per hourly basis rate, or at a fixed cost, in the event of any of the above issues. Should there be no CMS maintenance on a site, the Client’s release version may not have an upgrade path available due to the major release changes in the software. Should this be the case, the Provider may have to quote for a new CMS website.
- Should the Client reject either the upgrade path, or the new website quotations, the Client will not hold the Provider liable, or responsible, for any issues relating to the Client’s website. Should the Provider have to repair, or fix any issues relating to any of the afore-mentioned issues, it shall reserve the right to bill the Client for said repairs.
- Any person that delivers or attempts to deliver any damaging code to the Provider’s websites, or attempts to gain unauthorised access to any page on the website, shall be prosecuted and civil damages shall be claimed in the event that the Provider suffers any damage or loss.
- All Credit Card transactions are Secure Socket Layers encrypted.
- Customers may click on the SSL, or Credit Card Merchant logo, to view their security certificate.
- NO user login or e-mail or any passwords will be issued, unless the Provider knows the party, or has received written authorisation directly from the Customer.
- Should an employee of a company require such information this will only be provided once this request has been received in writing from a Customer’s contact person, which the Provider has on record, or somebody suitably authorised within the company.
12. SERVICE LEVEL AGREEMENT
- The uptime guarantees and the resulting SLA (Service Level agreement) credits are applied in monthly terms unless otherwise specified. All SLA guarantees and information listed below are made in good faith and are subject to standard contract remedies.
- SLA Credit Claim: To properly claim an SLA credit due, the dedicated server customer must open an SLA ticket, located at http://support.diamatrix.co.za, within seven days of the purported outage. The Customer must include service type, IP Address, contact information, and full description of the service interruption including logs if applicable. The SLA claim will be researched by the appropriate department and any credit issued will be issued to accounting and the ticket will be updated. SLA credits are issued as service credits on future billing cycles. SLA credits shall not be bartered, or traded with other DiaMatrix customers. Please allow up to fourteen (14) days for the process of SLA claims.
- Service Levels and Omissions: For the purpose of this section, service availability shall mean the availability of the data traffic, sufficient power, and HVAC services, measured from 0:00 to 0:00 each day over a one month period, provided that no one month period shall be used more than once for the purpose of calculating penalties in terms of the section below.
- Customers shall be entitled to service availability of 99.9 % uptime, subject to the exclusion of:
- Customers currently in arrears for monthly services, do not qualify for SLA claims.
- Customers who have been in payment arrears three or more times in the previous twelve months, do not qualify for SLA claims.
- Network or Power maintenance, enhancements, upgrades and modifications thereto do not qualify for SLA claims.
- Downtime, outage, interruption in, or unavailability of, the services arising out of, or caused by, malicious or aggressive internet activities by the customer, thereby causing attacks or counter-attacks.
- Downtime, outage, interruption in, or unavailability of, the services arising out of, or caused by, Telkom’s network or telecommunication facilities.
- Downtime, outage, interruption in, or unavailability of, the services arising out of, or caused by, any network, or telecommunication facilities, which do not reside inside the Provider’s network.
- Downtime, outage, interruption in, or unavailability of, the services arising out of any force majeure.
- Downtime, outage, interruption in, or unavailability of, the services caused by any action, or omission of the Customer, including but without limitation to, operating errors, abnormal operating conditions, improper use, misuse, neglect or abuse of the services. The liability of the Provider for failing to achieve the minimum service availability in terms of the section above, will be limited to the Providers issuing a SLA credit to the Customer, as defined in section SLA Credit Claim and shall never exceed a single month’s billing paid by the Customer.
- Infrastructure: The Provider guarantees 99.9% uptime on service availability to Customers located in its hosting facilities. All computer equipment and related services are served by redundant UPS power units, with backup onsite diesel generators. All servers are connected to the Provider’s redundant gigabit network infrastructure. Specific guarantees with SLA information are listed in the table below.
- Hardware: The Provider guarantees the replacement of failed hardware, and hardware components, located within its hosting facilities. The Provider guarantees a failed hardware component will be replaced within four hours of Customer notification in the trouble ticketing system. Replacement of failed hardware does not include time required to reload the operating system or applications. Specific guarantees with SLA information are listed below.
- Support: The Provider’s support methodology utilizes the emergency room approach, where problems are graded for severity and responded to accordingly. Service outages of any type always receive top priority, followed by service-degrading factors, and general questions about server management. This ensures every Customer will receive the best support during the appropriate situation. The Provider’s experienced support team is available via e-mail and telephone from 08h00 - 17h00 SAST, Monday through Friday. Support issues reported via e-mail or via the Provider’s trouble ticketing system outside of the Provider’s standard support hours are responded to and resolved as quickly as possible. The Provider’s infrastructure is monitored by its advanced monitoring system, which checks the integrity and stability of the entire infrastructure every 30 seconds. Should a fault occur, the Provider’s technical staff are notified by sms and e-mail.
4 hours or less
4 to 8 hours
8 to 12 hours
12 to 16 hours
16 to 20 hours
20 hours +
13. GOVERNING LAW
- The Provider’s sites are controlled and operated from the Republic of South Africa and therefore this agreement is governed by South African Law.
- The Customer may not at any time use the service in contravention of any South African Law , and consents to the jurisdiction of the High Court of South Africa sitting in Pretoria.
14. GENERAL CONDITIONS
- The Customer agrees to abide by the generally accepted terms of Netiquette.
- These Terms and Conditions supersede all previous representations, understandings, or agreements, and shall prevail notwithstanding any variance with terms and conditions of any order submitted.
- Use of the Provider’s services constitutes acceptance of these Terms and Conditions.
- The Provider owns the content, graphics, trade-marks, meta tags, domain names, hyperlinks, patents and source code for its websites. The content may not be copied, modified, redistributed, or republished, from any of the Provider’s websites, without the express written consent of an authorized person, as designated by the Provider.
- No person may use, reproduce or distribute the intellectual property of the websites, or the Provider, in any manner whatsoever, without the prior written consent of the Provider.
- Should the Provider fail to enforce any condition of this agreement, all other conditions of this agreement shall remain in force within the provisions of South African Law.
- This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. The Provider reserves the right to add, delete, or modify any provision of this Policy at any time without notice. This agreement may not be modified except by the written consent of the Provider.
15. TAKE DOWN NOTICE
The Provider have appointed Internet Service Providers' Association (ISPA) as its Agent for the receipt of Take Down Notices, please contact them in this regard per the contact information below: