1. Defined Terms
1.1 The following expressions shall bear the meanings assigned to them below and related expressions shall bear corresponding meanings -
1.1.1 "Agreement" means these terms and conditions, as amended from time to time;
1.1.2 "New User Signup form" means the signup form on the Website which the Customer is required to complete and submit in order to make use of the Service/s;
1.2 "Confidential Information" includes, but is not limited to -
1.2.1 clients and business associates of IS;
1.2.2 the contractual arrangements between IS, its suppliers, business associates, clients, agents and employees;
1.2.3 the financial details of IS's relationships with its suppliers, business associates, clients, agents and employees;
1.2.4 prospective clients of IS and their requirements;
1.2.5 IS's financial structure, operating results, financial statements and income tax returns;
1.2.6 the remuneration paid by IS to its various employees and their duties;
1.2.7 management know-how, processes and techniques;
1.2.8 other matters which relate to the business of IS, which information is not readily available in the ordinary course of business to a competitor of IS;
1.3 "Content" means all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which the Customer or Users may have access to as part of, or through their use of, the Service/s;
1.4 "Costs" means the fees and charges payable for the Service/s from time to time;
1.5 "CPA" means the Consumer Protection Act No. 68 of 2008, as amended from time to time;
1.6 "Customer" means the Party specified as Customer on the New User Signup form which these terms and conditions apply to;
1.7 "ECT" means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;
1.8 "Effective Date" means the date on which the Customer accepted the Agreement, be that in writing or by way of electronic medium such as clicking on "I agree" on the web page or telephonic acceptance;
1.9 "Equipment" means equipment supplied by IS to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilise the Services;
1.10 "IS" means Dimension Data (Proprietary) Limited (company registration number 1987/006597/07) trading through its division Internet Solutions;
1.11 "IS' Associates" means officers, servants, agents or contractors or other persons in respect of whose actions IS may be held to be vicariously liable;
1.12 "Intellectual Property" means, collectively, the patents, copyrights (and moral rights), trademarks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, know-how, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same);
1.13 "Intellectual Property Rights" means rights in Intellectual Property which are recognised and/or protected by South African Law;
1.14 "Losses" means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees, whether on the scale as between attorney and own client or otherwise, tracing and collection charges, costs of investigation, interest and penalties);
1.15 "Monthly Costs" means the monthly fee payable by the Customer to IS in consideration for the provision of the Service/s;
1.16 "Once Off Costs" means the once off initial costs charged to the Customer for the set up and/or installation of the Software, Equipment and/or Services;
1.17 "Parties" means the Parties to these Standard Terms and Conditions and "Party" means any one of them as the context may indicate;
1.19 "Proprietary Information" means any and all trade secrets and data/information of a proprietary and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential;
1.21 "RIC" means Regulation of Interception of Communications and Provision of Communication Related Information No. 70 of 2002, as amended from time to time;
1.22 "Service/s" means all the service/s provided by IS to the Customer, including all software and Equipment necessary for the provision of the Service/s;
1.23 "Software" means any computer program or software installed or provided by IS for the purposes of using the Services;
1.24 "South African Law" means all and any laws and regulations of the Republic of South Africa, including but not limited to the Constitution of the Republic of South Africa, the ECT, CPA or any other legislative enactment or regulation in force from time to time applicable codes of conduct, as may be promulgated or amended from time to time;
1.25 "Third Party Websites" means websites other than the Website;
1.26 "use" when used in the context of -
1.26.1 the Service/s, means to visit or load the Website in a web browser, mobile phone or similar software application or device and access or otherwise engage with the Service/s;
1.26.2 Content, means to copy, download, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate such content;
1.27 "User" means a person who is authorised by the Customer to make use of the Service/s the Customer has elected to make use of in terms of this Agreement, alternatively, anyone who registers with and uses the Service/s under the auspices of the Customer ("Users" has a corresponding meaning);
1.28 "VAT" means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991;
1.29 "Website" means the Service/s website located at http://www.isignite.co.za
2. Binding Contract
2.1 This Agreement is a contract between the Customer and IS and govern the Customer's and its Users' use of this Service/s. The Customer warrants that, to the extent necessary, it is authorised to bind its Users to this Agreement and that such Users have given the Customer such authority.
2.2 The Customer agrees that it shall not use the Service/s unless it agrees to abide by the terms and conditions set out in this Agreement.
2.3 The Customer signifies its agreement with this Agreement and to regards itself as bound by them if it does either of the following:
2.3.1 Click to accept or agree to this Agreement where IS presents an option to do so, either on the Website or otherwise; or
2.3.2 By using the Service/s in any way, in which case the Customer understands and agree that IS will treat its Service/s use as acceptance of this Agreement from the moment it first begins to access the Service.
2.4.2 It is the Customer's responsibility to review this Agreement regularly and to ensure that the Customer agrees with any amendments to this Agreement. The Customer further agrees that it will no longer access the Service/s if it does not agree with such amendments.
2.5 Application of the Consumer Protection Act
2.5.1 A transaction (as defined in the CPA) between the Customer and IS may or may not fall under the provisions of the CPA depending upon whether certain of the Customer's metrics and values ("Threshold Values") are below a certain value at the time the transaction is entered into.
2.5.2 The Threshold Values are the Customer's asset value or annual turnover, 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.
2.5.3 IS' duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and IS will act upon the information given to it by the Customer in this regard. Consequently:
220.127.116.11 The Customer warrants that any statement made to IS in respect of its Threshold Values is accurate.
18.104.22.168 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, IS may at its instance require the Customer to provide it with financial statements as proof thereof.
22.214.171.124 If the Customer misstates the Threshold Values in such a way that IS considers for a period that the transaction is subject to 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 IS resulting from such misstatement.
3.1 Users are required to register if they wish to use the Service/s.
3.1.1 Users are required to register with the Service/s using a registration form available on the Website.
3.1.2 When Users register to use the Service/s, they will be asked to select a username and password in order to secure Users' accounts.
3.1.3 Users may only register once to use the Service/s.
3.1.4 Users may not impersonate another person and Users are be required to use their real identities as identifiers associated with their account.
3.1.5 Once registered Users will be able to log into their accounts using their usernames and passwords.
3.2 In order to successfully complete the registration process, Users are required to submit the Registration Data to IS.
3.2.1 Users warrant that the Registration Data is accurate, current and complete. The Customer agrees that Users will be denied access to the Service/s should those Users breach this warranty or subsequently be found to have breached this warranty.
3.2.2 IS may take steps to verify Users' Registration Data once Users have completed the requisite registration process. The Customer and Users agree to this verification process and irrevocably consent to IS gaining access to relevant information held by third parties which may be required to reasonably complete the verification process. The Customer and Users acknowledge and agree that their access to the Service/s may be limited until such time as this verification process has been successfully completed.
3.2.3 Should Users not agree to the verification process as contemplated above or withhold their consent, Users' access to the Service/s, generally, may be suspended or terminated.
3.2.4 Users waive any claims Users may have against IS or IS's Associates arising out of IS's denial of access to Users to the Service/s.
3.3 Passwords and Account Security
3.3.1 Users agree that the security of Users' account is solely Users' own responsibility. Users further agree that -
126.96.36.199 Users are responsible for maintaining and promptly updating the Registration Data and any other information Users furnish IS with, thereby keeping it accurate, current and complete;
188.8.131.52 if Users believe their Service/s account security has been compromised in any way, Users will notify IS immediately;
184.108.40.206 Users shall be held fully responsible for any misuse or compromise to Users' account which IS is not adequately notified about; and
220.127.116.11 IS reserves the right to suspend Users' access to their Service/s accounts pending an investigation and resolution if any security violations are believed to have occurred in association with Users' Service/s account.
4. Commencement and Duration
4.1 The Agreement shall commence upon the Effective Date and shall endure until the termination date of the last of the Services.
4.2 The duration of each of the Services shall be for 1 (one) month rolling until terminated by either Party on 30 (thirty) days' notice.
5. Charges and Payment
5.1 Costs shall be payable to IS monthly in advance by way of credit card or debit order deducted on the last day of the month (unless otherwise agreed).
5.2 The Costs specified on the Website exclude VAT and any other any taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement.
5.3 The Costs specified on the Website may change from time to time without notice to the Customer. The Customer should visit the Website on a regular basis in order to take notice of such changes.
5.4 Invoices will be emailed to the Customer's designated email address (for billing purposes) indicated in the New User Signup form unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed.
5.5 Debit Order and Service/s Cancellation
5.5.1 By the act of the Customer supplying its banking details and agreeing to the terms and conditions of the Agreement the Customer accepts and agrees to the following:
18.104.22.168 The request and authorisation of IS to draw against the bank account of the Customer (or any other bank or branch to which the Customer may transfer its account) the due amount or any variable amount pertaining to this Agreement, on the first working day of each month. This being the amount necessary for the settlement of the monthly invoice and/or any overdue amounts, due to IS in respect of the Customers purchases or in terms of this Agreement.
22.214.171.124 The Customer agrees that all withdrawals from its account by IS shall be treated as though they had been signed by the Customer itself. The Customer specifically instructs and authorizes the relevant duly authorised IS agent or by computer through a system provided by the South African Banks to draw against the account of the Customer.
126.96.36.199 The Customer hereby agrees to pay any banking charges relating to this debit order instruction.
188.8.131.52 The authority and Service/s may be cancelled by the Customer by clicking and accepting the cancellation of services link as displayed on the website before the 25th of the current month. Failure to do so will result in the product being activated and the monthly subscription being debited from the Customer bank account. If the Customer cancels on or after the 25th of the month, cancellation of the service will be actioned for the end of the following month.
184.108.40.206 Debit orders will be processed on the first working day of every month. The debit order fails, the Customer Service/s will be disabled immediately and you will be required to pay the outstanding amount by way of credit card or electronic bank transfer in order to reactivate the Service/s.
220.127.116.11 All other debit order instructions (new account sign ups, top ups, upgrades), besides the monthly subscription debit orders, will be processed on a daily basis. Should a change be made on your account after the monthly debit order run, the balance will be processed on the 1st working day of the month.
6. Service/s Provision
6.1 To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against IS, is to require IS to remedy the defect in the quality of the Services performed.
6.2 If IS has supplied Equipment to enable the Customer to utilise the Service/s, defects in the Equipment will be dealt with as described in clause 6.5 below.
6.3 IS may add new features to the Service/s and modify or even discontinue existing features on reasonable notice to the Customer and in IS' sole discretion. The Customer agrees to this.
6.4 Risk and Ownership
6.4.1 All rights of ownership in and to any Equipment:
18.104.22.168 supplied by IS on a loan or rental basis, shall remain vested in IS;
22.214.171.124 acquired by the Customer from IS either free of charge or at a subsidised price shall remain vested in IS for the duration of the Initial Period of the Schedule in terms of which it is supplied; and
126.96.36.199 acquired at IS's listed price shall remain vested in IS until the Customer has made payment therefor in full to IS.
6.4.2 All risk in and to the Equipment shall pass to the Customer on delivery thereof at the premises of the Customer. Upon the signature of a proof of delivery by the Customer, the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
6.4.3 In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after the signature of a proof of delivery, the Customer shall be obliged to replace and/or repair or to pay to IS the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
6.4.4 The Customer undertakes:
188.8.131.52 to display in relation to the Equipment no lesser degree of care than it would had if the Equipment belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;
184.108.40.206 not, in any manner, to alienate, encumber or otherwise dispose of the Equipment;
220.127.116.11 not to procure repair or maintenance of the Equipment by any third party without the prior written consent of IS (which shall not be unreasonably withheld) or in any other manner tamper with the Equipment.
6.5 Returns and Refunds
6.5.1 If the provisions of the CPA are applicable to this Agreement, to the extent that Equipment is supplied to a Customer, the Equipment is warranted in respect of quality, suitability and durability for a period of 6 (six) months of the Effective Date in respect of the Equipment concerned. Provided the Customer is not in breach of the Agreement, Customer may within this period return the Equipment to IS without penalty if the Equipment fails to satisfy the requirements and standards contemplated and IS shall repair or replace the failed, unsafe or defective Equipment.
6.5.2 If Customer elects to enforce the provisions of clause 6.5 and, within 3 (three) months of any repair undertaken by IS, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered by Customer, IS shall, in its sole and absolute discretion:
18.104.22.168 replace the Equipment; or
22.214.171.124 refund to Customer the Once Off Cost applicable thereto.
7. Customer's Obligations
7.1 IS is obliged to protect its technical infrastructure against security threats and to protect the interests of its customers by ensuring that the conduct of no one customer prejudices the user experience of the other customers. Accordingly, IS imposes certain reasonable rules relating to the Customer's conduct while using the Services which are contained in IS' Acceptable Use Policy. Because security threats can be fluid and acceptable usage can change, IS may from time to time amend this AUP by publication on its website. These amendments will not materially affect the Agreement, but will merely update the limits of the Customer's existing duty to use the Services in a safe and responsible manner.
7.2 Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
7.2.1 damages in any way IS' technical infrastructure or any part thereof;
7.2.2 impedes, impairs or precludes IS from being able to provide the Service/s in a reasonable and businesslike manner;
7.2.3 constitutes an abuse or malicious misuse of the Service/s;
7.2.4 or is calculated to have any of the abovementioned effects. In such an event, should IS incur expenses to remedy the situation, IS reserves the right to charge the Customer the amount necessary to cover IS' additional expenditure. Notwithstanding the above, IS reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
7.3 Customer is prohibited from unauthorised selling, reselling or otherwise dealing with the Service/s which are proprietary to IS in any manner whatsoever. Without limitation to the aforegoing, the Customer agrees that any consideration which it may receive whilst acting in breach of this prohibition shall be deemed to be IS' damages suffered as a result of the Customer's breach of this prohibition and payable to IS.
7.4 Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service/s through any of Customer's Equipment, personnel and/or address.
7.5 Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against IS or IS' Associates if IS interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to IS.
7.6 Customer may not at any time use the Service in contravention of any South African Law. Customer acknowledges that IS has no obligation to assist Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
8.1 Any specifications, descriptive matter, drawings and other documents which may be furnished by IS to Customer from time to time:
8.1.1 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement by way of a Schedule;
8.1.2 shall remain the property of IS and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in IS. Such documents shall be returned to IS on demand.
9.1 Liability Limitation
9.1.1 IS shall not be liable for any Losses of whatsoever nature and howsoever arising where IS's failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
126.96.36.199 the Customer's failure to perform, or delay in performing its obligations in terms of this Agreement; or
188.8.131.52 circumstances that constitute an event of force majeure as contemplated in clause 16 hereof; or
184.108.40.206 all telecommunications infrastructure and communication line faults; or
220.127.116.11 failure or unreasonable delay by the Customer to report faults/problems to IS; or
18.104.22.168 the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which IS relies to provide the Service/s.
9.1.2 IS shall not be responsible for any Losses of whatsoever nature and howsoever arising if such Losses is caused by any defect or failure in the Equipment due to:
22.214.171.124 compliance by IS with any applicable legislation; and/or
126.96.36.199 any alteration to the Software and Equipment by the Customer; and/or
188.8.131.52 any defect and/or hazard in any third party equipment required by the Customer to be used in the provision of the Services.
9.1.3 In addition to 9.1.1 and 9.1.2 above, and to the extent permitted by South African Law, IS shall not be responsible for Losses of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
9.1.4 Subject to clause 9.1.1 to 9.1.3 above, the entire liability of IS and Customer's exclusive remedy for direct damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 1 (one) month preceding Customer's written notice to IS in respect of such claim.
9.1.5 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of IS of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
9.2.1 The Customer indemnifies IS and IS' Associates from any Losses which arise as a result of the Customer's use of the Services or the Customer's breach of this Agreement.
9.2.2 The Customer shall indemnify and hold IS and IS' Associates harmless against all Losses, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 9.2.1 above.
9.2.3 Customer hereby indemnifies IS against and holds IS harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of IS is excluded in terms of clause 9.1.1 to 9.1.3 above.
9.3 Third Party websites
9.3.2 IS has no control over Linked Websites and the Customer agrees that IS is not responsible or liable for any content, information, goods or services available on or through any such Linked Websites or for any Losses caused or alleged to be caused by or in connection with the Customer's use of or reliance on any such content, information, goods or services available on or through any such Linked Websites. The Customer agrees that where it or its Users access Linked Websites, they do so entirely at the Customer's or, where appropriate, the Users' own risk.
9.3.3 Interaction, correspondence or business dealings with Third Parties which are referred to or linked from or to the service is similarly entirely at the Customer's or, where appropriate, the Users' own risk.
9.4.1 IS warrants and represents that:
184.108.40.206 it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
220.127.116.11 it is the owner of or has the right to use under licence any intellectual property employed by it during or as part of the Services;
18.104.22.168 it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
22.214.171.124 the Services shall be performed in compliance with South African Law;
126.96.36.199 the Services shall be provided in accordance with the provisions of this Agreement;
188.8.131.52 the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with the highest standard of its industry.
9.4.2 Save as expressly set out in clauses 10.1 above, IS does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
9.4.3 IS does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
184.108.40.206 will be preserved or sustained in its entirety;
220.127.116.11 will be delivered to any or all of the intended recipients; or
18.104.22.168 will be suitable for any purpose;
22.214.171.124 will be free of inaccuracies or defects or bugs or viruses of any kind; or
126.96.36.199 will be secured against intrusion by unauthorised third parties;
188.8.131.52 and IS assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 9.4.
9.5.1 Notwithstanding anything to the contrary contained in this Agreement, IS reserves the right in its absolute discretion and after the receipt by IS of any take-down notice in terms of the ECT or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer's web site contains information that infringes against any third party's rights in terms of South African Law, or is defamatory in nature, to immediately give written notice to Customer of IS' intention to remove the offending information or any portion thereof from Customer's web site.
9.5.2 Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, IS shall be entitled to immediately remove the offending information or any portion thereof from Customer's web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by IS shall in no way constitute a breach by IS of this Agreement.
9.5.3 In the event a Customer is believed to be infringing on any person's rights in terms of South African Law, any person affected by such infringements may report the matter to IS by visiting IS' Abuse page at http://www.is.co.za/Abuse/Pages/default.aspx
10.1 Should the Customer breach any of the terms and conditions of this Agreement, without prejudice to any other rights that it may have, IS shall be permitted to either:
10.1.1 afford the Customer reasonable opportunity to remedy the breach;
10.1.2 suspend access to or terminate the Services;
10.1.3 cancel this Agreement;
10.1.4 in any event without prejudice to IS' right to claim damages and/or specific performance.
10.2 The Customer shall be liable for all costs incurred by IS in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
11. Intellectual Property
11.1 The Customer acknowledges that all Intellectual Property Rights relating to or used in connection with the Service/s provided under this Agreement vest in IS, either as owner or licensee of such Intellectual Property Rights.
11.2 Except as provided in this clause 11, the Customer does not acquire any rights under this Agreement from IS or IS' licensors to the Service/s, including any related Intellectual Property Rights. Some Service/s may be provided to the Customer under a separate license, in which case that license will govern the Customer's use of the Service/s concerned.
11.3 IS grants the Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Service/s solely in accordance with this Agreement; and
11.4 Customer hereby indemnifies and holds IS and IS' Associates harmless against all Losses suffered or incurred by them as a result of any Intellectual Property Rights claim by any third party.
12. Interception and Monitoring
12.1 Subject to the provisions of the RIC Act, the Customer and Users agree to permit IS to intercept, block, filter, read, delete, disclose and use all communications the Customer and Users send or post to or using the Service/s and/or to IS' staff.
12.2 The Customer and Users agree and acknowledge that the consent they provide above satisfies the "writing" requirement specified in ECT and RIC.
13. Protection of Confidential Information
13.1 Each Party will keep confidential and protect Confidential Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement.
13.2 Either Party acknowledges that unauthorised disclosure or use of Proprietary Information may cause substantial economic loss. All materials containing Confidential Information will be marked with "Proprietary" or "Confidential", or in a manner which gives notice of its proprietary nature. Confidential Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Confidential Information for either Party's authorised use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
13.3 Each Party shall ensure that its employees comply with its obligations under this clause 13.
13.4 This clause 13 shall survive termination or cancellation of this Agreement.
13.5 This Agreement does not transfer to either Party title to any Intellectual Property Rights contained in any Confidential Information of the other Party.
14. Cession and Assignment
14.1. The Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by IS prior to such cession and/or assignment.
15. Force Majeure
15.1 IS shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of IS, provided that IS makes all reasonable efforts to perform.
15.2 It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of IS and the force majeure provisions shall apply:-
15.2.1 a fault on the part of an IS supplier that affects the Service/s; and/or
15.2.2 the non-performance, inability to perform or delay in performance by a supplier to IS relating to the provisioning of equipment, services and/or facilities to IS that affects the Service/s; and/or
15.2.3 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm or fire.
16.1 If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.
17. Dispute Resolution and Arbitration
17.1 Any dispute which arises between the Parties relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to a committee consisting of two (2) members appointed by the Customer, and two (2) members appointed by IS, or alternates appointed by them, who will use their best efforts to resolve the dispute within fourteen (14) calendar days of the dispute having been referred to them.
17.2 Should the committee be unable to resolve a dispute, the parties agree to have the dispute resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed in terms of such Rules.
17.3 In the case of litigation -
17.3.1 the Parties consent to the jurisdiction of the appropriate division of the High Court of South Africa in respect of all proceedings which may arise out of or in connection with this Agreement;
17.3.2 all costs of litigation, on an attorney and own client scale and including any value added tax, charges and disbursements and fees of a like nature, incurred by the successful Party in successfully enforcing or defending any of the provisions of this Agreement, or any claim hereunder and shall be for the account of the unsuccessful Party.
17.4 Where the Customer instigates the dispute and where the provisions of the CPA are applicable to this Agreement, and the Customer does not use the Services under dispute wholly or mainly for his business or profession, then the provisions of clauses 17.2 shall be voluntary, and the Customer may choose such other means of resolving the dispute as are set out in the CPA.
18. Governing Law and Jurisdiction
18.1 This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
19. Place for Delivery of Notices
19.1 The Customer chooses its place for delivery of notices ("domicilium") at the physical address appearing on the New User Signup form for all purposes, including but not by way of limitation, receiving notice from IS, communicating with IS and the receiving service of process.
19.2 IS chooses its domicilium at The Campus, 57 Sloane Street, Bryanston, Johannesburg, South Africa.
19.3 Either Party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within ten 10 (ten) days of the intended domicilium change.
19.4 Any notice which either Party may give to the other shall be posted by prepaid registered post or hand delivered to the other Party's domicilium and shall be presumed, unless the contrary is proved by the Party to whom it is addressed, to have been received by that Party on the 10th (tenth) day after the date of posting or on the day of delivery as the case may be.
20.1 Notwithstanding that which is contained herein, in addition hereto the following terms shall apply to resellers of the Service/s:
20.1.1 The Services shall be sold as described and presented on the website, resellers shall not attempt to alter or customise such Service/s without the consent of IS;
20.1.2 The reseller shall be responsible for all support calls from its direct customers, IS shall however assist only the reseller through the existing IS support channels.
20.1.3 The reseller is responsible for onward invoicing and collection of monies from its customers. Failure to collect such monies shall in no manner be an excuse or reason for the resellers' failure to make payment of the Service/s provided by IS and may lead to suspension of the Service/s at the discretion of IS.
21. Service Level
21.1 Notwithstanding clause 9.4.3 above, the Service/s provided should be viewed as "best-effort", "as is" or "as available". IS cannot guaranteed or warrant that the Service/s will at all times be free of errors or interruptions. During any technical failure, modification or maintenance of the Service/s provided, IS will use its reasonable endeavours to notify the Customer of such maintenance and to resume the Service/s as soon as possible.
22.1 No variation, amendment or consensual cancellation of this Agreement, or this clause, shall be binding unless recorded in a written document signed by a duly authorised IS representative or published by an authorised IS representative to the Website.
22.2 The parties acknowledge having read and understood this Agreement and are not entering into this Agreement on the basis of any representations not expressly set forth in it.
22.3 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between Customer and IS or not.
22.4 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement shall operate as an estoppel against either Party hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
22.5 In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
22.6 Nothing in the Agreement shall constitute a partnership, joint venture, agency or employment between the Parties hereto, and neither Party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other in any way for any purpose.
22.7 Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
22.8 In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive. In particular, termination or cancellation of this Agreement shall not affect any rights or duties arising under it with respect to Confidential Information as set out in clause 13 above.
22.9 These terms and conditions, together with the New User Signup form, constitute the whole of the Agreement between IS and Customer relating to the subject matter hereof.
These Terms and Conditions were last updated on 1 June 2013.
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