** Cloud backup with the ability of replication to local storage.
** 3 Month Data Retention
STANDARD TERMS AND CONDITIONS
1.1 For purposes of these Conditions, unless the context indicates otherwise, the words and expressions below shall have the following meanings, and cognate expressions shall have a corresponding meaning, namely:
the directors, managers, shareholders or members, agents, representatives, holding companies and subsidiary companies (as those terms are defined in the Companies Act, 2008) of the Service Provider;
1.1.2 Applicable Laws
all applicable (in the circumstances and context concerned) laws (statutory or common), rules, ordinances, regulations, grants, concessions, franchises, licences, orders, directives, judgments, decrees, and other governmental restrictions, including permits and other similar requirements, whether national, provincial, territorial, municipal, foreign or local, and whether legislative, administrative or judicial in nature;
1.1.3 Application Document
the quotation document generated by the Service Provider’s CRM system, containing a unique quotation number and provided to the Customer by the Service Provider and which document is subject to these Conditions, and/or the support services agreement entered into between the Customer and the Service Provider;
1.1.4 Business Day
any day other than a Saturday, Sunday or public holiday in the RSA, within the meaning of the Public Holidays Act, 1994;
1.1.5 Commencement Date
the earlier of the date on which the Service Provider:
18.104.22.168 accepts the order as set out in the Application Document; or
22.214.171.124 supplies the Services to the Customer;
these terms and conditions, and the schedules to it, for the provision and use of the Services (including all rules, policies, procedures, and notices applicable thereto) which are set out in this document and which may be amended by the Service Provider from time to time without notice to any third party or user;
the Party to which the Service Provider provides the Services in terms of these Conditions, being the party to the Application Document, whose details are set out in in item 1 of Schedule 1;
the monthly fees and/or rates payable by the Customer to the Service Provider in consideration for the provision of the Services as may be set out in the Service Application Form and subject to these Conditions;
1.1.9 Initial Term
the initial period for which the Services shall be provided by the Service Provider to the Customer as set out in the Application Document, or if no such period is set out therein, a period of 12 months from the Commencement Date;
the monthly invoice issued by the Service Provider to the Customer setting out the Fees, which invoice shall be delivered to the email address of the Customer as set out in the Application Document;
1.1.11 Invoice Date
the date on which the Service Provider issues the Invoice to the Customer (which date shall be reflected on the Invoice);
the Customer and the Service Provider and their permitted assignees and successors-in-title, or any one of them as the context may require;
1.1.13 Prime Rate
the basic quoted rate of interest at which Nedcor Bank Limited lends to its customers on unsecured overdraft, as certified by any general manager of that bank, whose authority or appointment it shall not be necessary to prove;
the Republic of South Africa;
1.1.15 Service Agreement
these Conditions and each Application Document;
1.1.16 Service Provider
the Party providing the Services to the Customer in terms of these Conditions, being the party to the Service Application, whose details are set out in in item 2 of Schedule 1;
the services to be provided by the Service Provider to the Customer, as selected and described in more detail in the Application Document (which services may include anti-virus, anti-spam and backup solutions; voice over IP solutions; email; web-hosting services; connectivity services, support services and so forth), including all software and equipment necessary for the provision of the Services;
value added tax which is levied in respect of goods and services in terms of the RSA Value Added Tax Act, 1991.
The Customer wishes to appoint Service Provider to render the Services. These Conditions set out the terms and conditions in terms of which the Service Provider shall provide the Services to the Customer.
3.1 By signing the Application Document, the Customer agrees to be bound by these Conditions and shall accordingly have entered into a Service Agreement with the Service Provider. No amendments made to the Application Document by the Customer shall be binding on the Company unless and until accepted by the Service Provider in writing.
3.2 These Conditions shall, with effect from the Commencement Date, supersede any correspondence, understandings, undertakings and all other agreements concluded between the Parties in relation to the Services and the Customer acknowledges that, other than the Application Document, there are no agreements or arrangements whether written, oral or implied between the Parties relating to the Service Provider’s appointment pursuant to these Conditions, other than those expressly set out in these Conditions.
4.1 The Customer hereby appoints the Service Provider to render the Services to the Customer on the terms and conditions set out in these Conditions, which appointment the Service Provider hereby accepts.
4.2 The Service Provider does not make any representations nor does it give any warranty or guarantee of any nature whatsoever in respect of the Services or its suitability for any purpose, whether that purpose is notified to the Service Provider or not.
5.1 These Conditions shall come into force and effect on the Commencement Date and shall continue for the duration of the Initial Term.
5.2 After the Initial Term, these Conditions shall automatically renew for further periods of 1 year each at a time unless either Party gives written notice to the other Party that these Conditions are to terminate:
5.2.1 not less than 3 months prior to the expiry of the Initial Term, or
5.2.2 within 3 months of any successive period; or
whereupon these Conditions shall cease to be of further force and effect with effect from the expiry of the Initial Term, or any successive period, as the case may be.
6.1.1 Within 30 days of the date of the monthly Invoice, the Customer shall pay the Fees to the Service Provider in exchange for the provision of the Services to the Customer.
6.1.2 Unless the Customer notifies the Service Provider in writing to the contrary within 3 days of delivery of an Invoice, the contents of the such Invoice shall be deemed to be correct and shall not be disputable.
6.1.3 If the Customer notifies the Service Provider in writing of a dispute in relation to an Invoice within 3 days of delivery of an Invoice to the Customer, then:
126.96.36.199 the dispute shall be referred to the financial director of the Service Provider for resolution within 14 days of the dispute being referred to it;
188.8.131.52 if the dispute cannot be resolved it may be submitted by either party to and be determined under the auspices of and in terms of the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa, in Johannesburg and the costs of any such arbitration shall be determined by the arbitrator as part of his or her finding (any finding by the arbitrator shall be final and binding on the Parties).
6.1.4 The Fees must be paid by the Customer to the Service Provider within 30 calendar days from the Invoice Date, subject to clause 6.1.3.
6.1.5 All payments shall be made in RSA Rand and cents, free of set-off, bank exchange and other charges, by way of electronic funds transfer into a bank account of the Service Provider as set out on the Application Document.
6.1.6 The Customer acknowledges and agrees that the Service Provider shall be entitled, on 30 days’ written notice to the Customer, to increase the monthly Fees payable by the Customer in relation to the Services, provided that such an increase may only occur after the first 12 months of these Conditions and may not occur more than once in any subsequent 12 month period.
6.2 Unpaid Invoices and/or Fees:
Should any amount due by the Customer to the Service Provider not be paid by the Customer on due date then:
6.2.1 all amounts owed by the Customer shall at once become due, owing and payable;
6.2.2 the Customer shall be liable to pay interest in respect of amounts unpaid as at due date at the rate of 2% above Prime Rate per month, from the due date until the date of full payment of the outstanding amount;
6.2.3 the Customer shall in addition pay any legal costs incurred by the Company on the attorney and own client scale, including collection commission;
6.2.4 the Service Provider shall be entitled to cease supplying the current Services to the Customer and/or refuse the supply of new services to the Customer until such time as it receives payment in full of the outstanding amounts (including any interest accrued thereon).
7.1 The Service Provider shall:
7.1.1 render the Service to the Customer for the duration of these Conditions;
7.1.2 exercise all reasonable skill, care and diligence in the provision of the Services to the Customer pursuant to these Conditions;
7.1.3 provide the Services to the Customer in conformity with sound business practice and in compliance with any relevant law, statute or regulation;
7.1.4 ensure that it at all times has such suitably competent, skilled and experienced staff resources at its disposal as are necessary for it to provide the Services to the Customer on the basis contemplated in clauses 7.1.2 and 7.1.3.
8. GENERAL OBLIGATIONS OF THE CUSTOMER
8.1 When using the Services, the Customer shall:
8.1.1 comply with all restrictions imposed on computer networks through which any information and/or data transmitted by the Customer passes;
8.1.2 not commit nor attempt to commit any act or omission which directly or indirectly:
184.108.40.206 damages in any way the Service Provider’s technical infrastructure or any part thereof;
220.127.116.11 impairs or precludes the Service Provider from being able to provide the Services in a reasonable and businesslike manner;
18.104.22.168 constitutes an abuse or malicious misuse of the Services;
22.214.171.124 or is calculated to have the abovementioned effect;
8.1.3 not modify any equipment (including but not limited to router equipment) utilised by the Customer to receive any of the Services, in any way whatsoever, including the changing of any of the settings of such equipment;
8.1.4 not at any time use the Services in contravention of any Applicable Laws. In particular, the Customer undertakes to familiarize itself and ensure that it is kept continuously appraised of all Applicable Laws which has any bearing on the Services and/or their use.
8.2 The Customer is responsible to ensure that its hardware and software is properly secured and insured at all times against any and all risk (including but not limited to theft, lightning damage, unauthorised access and so forth).
8.3 The Service Provider not be responsible for: (i) the Customer’s software, applications and/or any component thereof required and used by Customer; (ii) the licensing of Customer’s software, application and/or any component thereof required and used by Customer. Any failure to license such software and/or application correctly may result in the termination and/or suspension of these Conditions and/or any Services and the Customer furthermore indemnifies the Service Provider from any losses, damages, costs, claims, penalties or fines of whatever nature resulting from the Customer’s failure to license the software and/or applications correctly and/or at all.
9. PERSONAL INFORMATION
9.1 By requesting and utilising the Services, the Customer consents to:
9.1.1 the Service Provider recording and storing the Customer’s personal details for record-keeping purposes and in order to comply with its obligation in terms of these Conditions;
9.1.2 the Service Provider providing the Customer’s personal details to any law enforcement agencies upon it being requested to do so;
9.1.3 the Service Provider using location based services for any lawful or third party service;
9.1.4 Cookies being stored to provide customized services (if any);
9.1.5 certificates being stored;
9.1.6 the Service Provider, third party vendors / partners redirecting the Customer to third party vendor payment processing partners; and
9.1.7 the Service Provider making the Customer’s personal information available to its Affiliates, provided that such personal information will not be provided to or sold to any third parties which are not Affiliates of the Service Provider without the prior written consent of the Customer.
Each Party shall keep strictly confidential all information supplied to or acquired by it in connection with any terms of these Conditions, and shall not use such information or any part thereof for any purpose other than expressly permitted under these Conditions.
11. LIMITATION AND VARIATION OF SERVICES
11.1 General Limitations and Variations
11.1.1 The Customer acknowledges and agrees that:
126.96.36.199 the Service Provider may establish limits in relation to the use of the Services;
188.8.131.52 the Service Provider has no responsibility for and/or is not liable for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Service Provider service;
184.108.40.206 the features, parameters (for example, the amount of storage available to users) or existence of any Service may change at any time and the Service Provider endeavors to notify the Customer if any such changes will affect it.
11.2 Reliance on Third Parties:
11.2.1 The Service Provider hereby advises the Customer that the Service Provider does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide separate but interrelated and connected services which as a whole, allows the infrastructure of the Service Provider to function. These third parties operate as independent service providers who are not necessarily contracted by the Service Provider and the Customer accepts and acknowledges this fact.
11.2.2 Whilst the Service Provider shall use all reasonable endeavours to ensure that the Services are operational at all times, the Service Provider does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry, which is dependent on the actions and/or input of a number of independent third parties whom the Service Provider has no direct control over. Accordingly, the Service Provider shall not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether the Service Provider has entered into a service level agreement with such third party).
11.2.3 Notwithstanding the provisions of this clause 11.2.2, the Service Provider shall use its best endeavours to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where the Service Provider is in a position to do so.
11.2.4 The Service Provider shall use reasonable endeavours to liaise and engage with the third party service providers in order to ensure that the Services can recommence as soon as possible after any interruption thereto.
12. INDEMNITY AND LIMITATION OF LIABILITY
12.1 The Customer agrees to indemnify the Service Provider (and its Affiliates) and at all times keep it indemnified against all losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgements whatsoever in relation to or arising directly or indirectly out of the provision by the Service Provider of the Services and/or any refusal or failure by the Customer to timeously and duly implement network and system security recommendations of the Service Provider, and the Customer will reimburse the Service Provider from time to time for all costs and expenses (including legal and other professional fees) that the Service Provider may reasonably incur in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration in which the Service Provider (or its Affiliates) is a party and whether or not resulting in any liability on its part, except to the extent that such action or claim is found in final judgement to be the direct result of the Service Provider’s fraud, gross negligence or breach of these Conditions.
12.2 The Service Provider will not be liable to the Customer, or any third party claiming through or on behalf of the Customer, in respect of any claim whatsoever, whether in contract, delict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by the Service Provider of the Services, except to the extent that such losses, damages, costs or expenses incurred by the Customer are found in final judgement to be the direct result of fraud, gross negligence or breach of these Conditions by the Service Provider. In these or any other circumstances, the maximum amount of the liability of the Service Provider in respect of such losses, damages, costs or expenses will be limited to the amount of Fees that have been paid to the Service Provider by or on behalf of the Customer in connection with the Services.
The Service Provider does not make any representations nor, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose, nor that the Services will be error-free, secure or uninterrupted.
14. FORCE MAJEURE
The Customer shall not have any claim of any nature whatever against the Service Provider for any failure to carry out any of its obligations under these Conditions as a result of force majeure, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, riot, political or civil disturbances, the elements, any act of any State or Government or any other authority or any other cause whatever beyond the control of the party in question. Should the circumstances endure for a continuous period of more than 3 months either Party may terminate these Conditions with immediate effect with written notice to the other Party.
15. TERMINATION AND BREACH
15.1 Either Party may terminate this Agreement forthwith and on notice in writing to the other Party if the other Party breaches any other term of this Agreement and fails to remedy such breach within 15 Business Days of having been given written notice calling for such breach to be remedied.
15.2 For the purposes of clause 15, the Service Provider may terminate these Conditions forthwith and on notice in writing if the Customer:
15.2.1 fails to pay any amount due by it to the Service Provider after having received 10 Business Days written notice from the Service Provider that is it is required to do so; or
15.2.2 is placed under judicial management or liquidation or is sequestrated (whether provisionally or finally) or takes any steps for the surrender of its estate or composition with its creditors or becomes subject to business rescue proceedings; or
15.2.3 has any judgment taken against it and fails to satisfy the same within 15 Business Days thereof.
15.3 The Service Provider shall not by reason of the termination or cancellation of this Agreement be liable to the Customer for compensation, reimbursement or damages either on account of present or prospective profits on sales or anticipated sales, or on account of expenditures, investments or commitments made in connection therewith or in connection with the establishment, development or maintenance of the business or goodwill of the Customer, or on account of any other cause or manner whatsoever, provided.
16.1 For so long as these Conditions remain in force and effect, and for a period of 1 year thereafter, the Customer shall not solicit or endeavour to entice away for employment from the Service Provider any person who is or was in the full time employment of the Service Provider (“Employee”).
16.2 If a Customer fails to comply with clause 16.1 then the Customer hereby agrees to and shall immediately, upon written demand by the Service Provider to do so, pay to the Services Provider (as a finder’s fee) an amount equal to the gross annual salary of the Employee as at the last date of current financial year of the Service Provider.
Notices required by these Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery, fax or by email to the address or number set out in Schedule 1. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th business day after posting. Emails and faxes will be deemed to be received on the business day they are sent if sent before 16h00 on that day or on the next business day thereafter is sent after 16h00 on a business day or if sent on a non-business day.
These Conditions may be signed in any number of counterparts and all such counterparts taken together shall constitute one and the same Condition.
The Parties agree that the terms and conditions set out on the Service Provider’s website at https://www.dialanerd.co.za/terms-and-conditions/ (as may be amended by the Service Provider from time to time) are hereby incorporated into, and form part of these Conditions and are binding on the Parties.
** Please note that this contract is subject to assessment