MSWeb.co.za

MSWEB General Terms and conditions

Contents:	Billing terms Contract Hosting Plans General Terms Hosting terms Acceptable Use policy
Billing terms:	Debit order only. Monthly or annual options.
Contract:	12 month initial contract. There after monthly with 30 days notice period.
Hosting Plans:	can be viewed here
General Terms:	Msweb's General Terms cover the general terms and conditions of our relationship which include the duration of the Agreement, fees payable by you, Msweb's right to monitor communications and content in specific circumstances, steps to protect the security of your data and Msweb's systems, when MSweb is authorised to suspend or terminate your services and the resolution of disputes between us. Summary of our General Terms & Conditions: The Agreement will commence when MSweb provides you with a username and password. The Agreement is binding unless and until you or we give notice to terminate. We may change the features or functionality of the Services over time. You must comply with the Acceptable Use Policy that applies to your use of the Services. We can prevent your access to the Service/s if you breach the Agreement or for technical reasons. You accept that you will get no rights to the intellectual property in Msweb's computer systems. Subject to your right to withdraw your consent in certain instances, you agree that we may obtain your personal information and use it, for certain specified purposes, including for, internal MSweb marketing and contract administration as well as to enable us to collect your debit order payment. You agree that our liability to you is substantially limited. The Agreement is subject to South African law. We will use your given address as your address for service.
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MSweb Hosting Terms	MSweb Hosting Terms and Conditions (General Terms) (Last updated: 1 July 2008) (Previous versions: none) Michael Scholtz Computer Software support cc. (Registration No. 1998/21434/23) ("MSweb") is a leading South African web hosting service provider that provides a range of web hosting Services to its Customers. MSweb provides the Services to its Customers subject to the terms and conditions of the MSweb Hosting Terms, which include these General Terms as well as the Specific Terms and the Acceptable Use Policy. These documents can be found at www.msweb.co.za/terms.htm under their respective headings. 1. Interpretation In the MSweb Hosting Terms, unless a contrary intention appears – 1.1 the clause headings in the MSweb Hosting Terms have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation; 1.2 any reference to (i) the singular includes the plural and vice versa, (ii) any gender includes the other genders and (iii) a natural person includes a juristic person and vice versa; 1.3 the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules; 1.4 unless the context indicates a contrary intention, the words and expressions defined in clause 2 shall, throughout the MSweb Hosting Terms, bear the meanings assigned to them in that clause 2 and similar expressions shall bear corresponding meanings; 1.5 any reference to "days" shall be construed as being a reference to calendar "days" unless qualified by the word "business" in which instance a "business day" shall be any day other than a Saturday and a Sunday and/or a public holiday as gazetted by the Government of the Republic of South Africa from time to time. Any reference to "business hours" shall be construed as being the hours between 09h00 and 17h00 on any business day; 1.6 The word "include" and "including" means "include without limitation" and "including without limitation". The use of the word "including" followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it; 1.7 terms other than those defined within these General Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings; 1.8 defined terms appearing in these General Terms in title case shall be given the meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with the ordinary meaning as qualified by clause 1.7 and shall, unless the context otherwise indicates, include the term as defined. 2. Definitions In the MSweb Hosting Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause: 2.1 "Agreement" means the contract entered into between MSweb and the Customer consisting of, inter alia, the MSweb Hosting Terms and any application form, or addendum thereto, completed by the Customer; 2.2 "Commencement Date" means the date when a customer profile is created and MSweb furnishes the Customer with the Customer Data; 2.3 "Customer" means (i) the party identified on the application form or in any addendum thereto, relating to the relevant Service subscribed for by the Customer and in the case of a Domain Name, means the registered holder of the Domain Name (as defined in the Specific Terms) and (ii) a Reseller enrolled under the MSweb Reseller programme who hosts directly with MSweb; 2.4 "Customer Data" means the username/s, password/s or e-mail address/es provided by MSweb to the Customer as part of the Services, but expressly excluding Customer Domains managed by MSweb as part of the Services; 2.5 "General Terms" means these terms and conditions; 2.6 "MSweb Hosting Terms" means the General Terms, the Specific Terms and the Acceptable Use Policy; 2.7 "Intellectual Property Rights" means all patents, trademarks, service marks, design rights, copyright, trade or business name, know-how, concepts, ideas, methods, procedures, processes, techniques, models, reports, templates, software or any changes or additions thereto (if any) and other similar rights or obligations, whether or not registerable, registered or application for registration thereof has been made in any party of the world; 2.8 "Marks" means any trademarks, logos, brand names, domain names or other marks of either of the Parties; 2.9 "Party" and "Parties" means MSweb, Hetzner and the Customer; 2.10 "Services" means the services provided by MSweb, Hetzner to the Customer; 2.11 "Service Fees" means fees and charges payable by the Customer to MSweb in respect of the Services, which Service Fees are dealt with in clause 7 hereunder and are set out in the application form/s, and any addenda thereto, completed by the Customer in respect of the Services; 2.12 "Specific Terms" mean the terms and conditions which supplement the General Terms and govern the use of individual Services selected by the Customer; 2.13 "Website" means the website from which the Services are provided, currently being http://www.msweb.co.za 3. MSweb Hosting Terms 3.1 MSweb provides the Services to its Customers subject to the terms and conditions of the MSweb Hosting Terms, which include these General Terms, the Specific Terms, the Acceptable Use Policy and Privacy Policy, all of which are published at www.MSweb.co.za under their respective headings. 3.2 These General Terms set forth the general terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms. 3.3 To the extent that: 3.3.1 any individual Service selected by the Customer is not dealt with in the Specific Terms, such individual Service shall be governed by the General Terms and Acceptable Use Policy; 3.3.2 any Specific Terms are binding upon the Customer, those Specific Terms are deemed included in the MSweb Hosting Terms. 3.4 The Acceptable Use Policy represents the terms and conditions pertaining generally to the Customer's use of the Services and specifies the activities prohibited by the Customer and is intended to enhance the use of the Internet by preventing unacceptable use. The Customer is required at all times to comply with the Acceptable Use Policy, which is deemed to form part of the MSweb Hosting Terms. The Acceptable Use Policy, as amended from time to time, is posted on the Website. 3.5 Save as expressly provided to the contrary in the MSweb Hosting Terms, in the event of a conflict between the provisions as stated in these General Terms and those stated in the Specific Terms and Acceptable Use Policy, the following precedence ranking shall apply (from highest to lowest): (i) these General Terms; (ii) the Specific Terms; (iii) the Acceptable Use Policy; (iv) the Privacy Policy and other policies that may be introduced from time to time and notified to the Customer as well documents incorporated by reference in this Agreement. 4. Amendment to MSweb Hosting Terms 4.1 MSweb reserves the right, at any time, to amend any of the MSweb Hosting Terms to which the Customer is bound without specific notice to the Customer. An updated version of the MSweb Hosting Terms will be posted on the Website. 4.2 The Customer agrees that it is their responsibility as a diligent user to peruse any amended MSweb Hosting Terms posted on the Website and the Customer undertakes to regularly visit the Website so as to remain advised of such amended MSweb Hosting Terms. 4.3 If the Customer objects to any amended MSweb Hosting Terms which are binding upon it or are to become binding upon it, the Customer is entitled to terminate its relationship with MSweb upon the terms and conditions set forth in clause 14.1 below. 5. Customer Status 5.1 It is recorded that the Customer may be an incorporated entity (such as a company or close corporation), trust, partnership or individual. 5.2 To the extent that a person enters into the Agreement in a representative capacity on behalf of a Customer who is an incorporated entity or on behalf of an unincorporated entity, or in any other representative capacity recognised in South African law, the Customer hereby warrants that: 5.2.1 such person is legally authorised to do so and indemnifies MSweb against any loss or damage that MSweb may sustain resulting from such person's lack of authority; 5.2.2 all the information relating to the entity, trust, partnership, association or other person who he/she represents and which he/she has supplied to MSweb at any time will be true, accurate and complete. 5.3 MSweb reserves the right to treat all misrepresentations by the Customer or its representative as fraud and such person indemnifies MSweb against any loss or damage that MSweb may sustain resulting from such person's lack of authority. 5.4 If MSweb discovers that the Customer has fraudulently contracted for the receipt of Services or that its representative has contracted without contractual capacity to do so, MSweb will be entitled to terminate the MSweb Hosting Terms and/or Service/s immediately without any further liability to the Customer whatsoever and the Customer shall not be entitled to claim any restitution or refund of any amount already paid, regardless of whether the Customer has used the Services or not. 5.5 The Customer shall, if requested by MSweb, furnish MSweb with sufficient evidence of the authority of the person who shall, on behalf of the Customer, take any action or execute any documents required or permitted to be taken or executed by such person under the Agreement. This would include providing proof of permission to debit from the authorised signatory of the Customer's bank account. 5.6 In the event of a dispute between individuals or entities involved with the Customer (including partners, shareholders, trustees, employees), MSweb shall be entitled to act on the representation of a person claiming to be duly authorised to represent the Customer, without being obliged to obtain independent verification of such authority and the Customer indemnifies MSweb from any action or inaction based on such representation. However, should MSweb, in its sole and absolute discretion, require independent verification of the authority of any individual, the Customer shall provide same in a format reasonably acceptable to MSweb. 6. Commencement and Duration 6.1 The application form submitted by the Customer to MSweb will be treated as an offer by the Customer to make application for the Service/s. The Customer's offer shall only be deemed to have been received by MSweb once this has been confirmed to the Customer by MSweb. Although the Website is configured to confirm receipt of any offer ("Confirmation"), technical or other problems may delay or prevent such Confirmation. The Customer should contact MSweb if it does not receive Confirmation from MSweb shortly after having sent the offer. Confirmation shall not mean that a transaction has been concluded. It merely serves to confirm that the application has been received by MSweb. Confirmation is deemed to have been sent by MSweb as soon as this is reflected in MSweb's log files. 6.2 The MSweb Hosting Terms shall commence and become binding on the Customer with effect from the Commencement Date. 6.3 The MSweb Hosting Terms shall endure for an indefinite period until terminated in terms of the provisions of clause 14 below. 6.4 Both Parties record and agree that Durbanville, Western Cape shall be deemed to be the place where the Parties have concluded the Agreement or any portion thereof. 7. Service Fees 7.1 All Service Fees payable by the Customer in terms of the MSweb Hosting Terms for Services are payable in advance. 7.2 The Service Fees shall be payable either on a monthly, quarterly, bi-annual or annual basis as specified on the Website and are calculated in accordance with the rate schedule on the Website. 7.3 The Service Fees shall be paid by way of debit order and the Customer hereby authorises MSweb to effect the necessary transfers from the Customer's designated bank account at the beginning of each and every month for the continued duration of the MSweb Hosting Terms. The Customer shall ensure that the debit order is in place within seven (7) days of the Commencement Date. A rejected debit order will accrue a handling fee of R50,00 per rejection. 7.4 The Customer shall only be entitled to pay cash for the Services in circumstances where the Service Fee is payable on an annual basis. This would exclude any incremental over-usage charges. 7.5 Where the Customer's use of any service commences during a month rather than at the start of that month, the Customer will be charged on a pro rata basis for those Services provided during that month. 7.6 MSweb reserves the right to amend or vary the Service Fees from time to time and any amendment or variation of such Service Fees will be deemed to be an amendment of the MSweb Hosting Terms. In the event that MSweb does amend its Service Fees, it will give the Customer at least thirty (30) days prior notice of such amendment to the Service Fees. If the Customer objects to any amended or varied Service Fees which affect it, it shall be entitled to terminate its relationship with MSweb upon the terms and conditions set forth in clause 14.1 below. 7.7 The Customer acknowledges that it is not entitled to withhold any payment of any Service Fees due to MSweb by reason of any alleged breach of the MSweb Hosting Terms by MSweb or for any other reasons whatsoever. In addition, the Customer acknowledges that it is not permitted to apply set-off to or demand any discount, refund (other than in terms of clause 7.10 below) or reduction in respect of any Service Fees owed to MSweb. 7.8 The Customer acknowledges that the Service Fees stipulated are inclusive of value added tax. Should any alterations to the Value Added Tax Act, 89 of 1991 be gazetted or promulgated during the duration of the MSweb Hosting Terms, resulting in a high level of Value Added Tax being attracted to any payment due under the MSweb Hosting Terms, such increased Value Added Tax shall be borne by the Customer. 7.9 In the event of a dispute arising between the parties, the Customer shall be obliged to continue paying the Service Fees as and when they become due and payable in terms of the MSweb Hosting Terms. 7.10 The Customer may terminate the Service within: 7.10.1 seven (7) days after the Commencement Date should the Customer decide not to continue subscribing for the Service/s; or 7.10.2 within thirty (30) days after the Commencement Date should MSweb fail to meet the service levels for hosting services and e-mail services as specified in the Specific Terms, provided that the Customer's right to terminate shall be exercised by notice from the Customer to MSweb transmitted via e-mail to billing@MSweb.co.za. In the event of the Customer terminating the Service for the aforesaid reasons, the Customer shall be entitled to a refund of any Service Fees. MSweb shall not, however, be obliged to refund the Customer with any third party costs already incurred by MSweb directly or indirectly as a result of the initial request for the Service. The Customer remains responsible for any third party costs. 8. Monitoring 8.1 Whilst MSweb monitors its Services to determine that its facilities are operating satisfactorily, MSweb does not, as a general practice, monitor its Customers activities. Where MSweb is required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 ("the Monitoring Act"), any interception of communications shall be strictly carried out in accordance with the requirements of the Monitoring Act, as and when required under the Monitoring Act. 8.2 With specific regard to the monitoring of content which is found on a website belonging to a Customer and which is hosted by MSweb, the Customer acknowledges that MSweb has no knowledge of, nor interest in, Customer content hosted by MSweb or published by MSweb on the Customer's behalf using the Services and further that MSweb does not in any way contribute or approve such content. 8.3 Notwithstanding this, the Customer agrees that if MSweb, in its sole and unfettered discretion determines that the Customer's content is in violation of any law (including the Films and Publications Act 65 of 1996) or of the Acceptable Use Policy, it may (i) forthwith request the Customer to remove such content; and/or (ii) forthwith require the Customer to amend or modify such content; and/or (iii) without notice terminate access to any Services and/or suspend or terminate any Services; and/or (iv) without notice, delete the offending content; and/or (v) notify the relevant authorities of the existence of such content (if required by law or otherwise), make any back-up, archive or other copies of such material as may be required by such authorities, disclose such elements of the Customer data as may be requested by such authorities and take such further steps as may be required by such authorities. 8.4 The Customer specifically agrees that it shall have no recourse against MSweb in the event of MSweb acting in terms of clause 8 and accordingly waives its right to make any claim or demand or to institute any legal proceedings against MSweb. 9. Security 9.1 All Customer Data allocated to the Customer is personal to the Customer and the Customer shall be liable for any loss or damage sustained by the Customer, MSweb or any third party as a result of any actions by the Customer or any other person to whom the Customer has disclosed its Customer Data. 9.2 The Customer authorises MSweb to act on any instruction given by and/or purporting to originate from the Customer, even if it transpires that both MSweb and the Customer have been defrauded by someone else, unless the Customer has notified MSweb in terms of clause 9.3 below prior to MSweb acting on a fraudulent instruction. 9.3 If any security violations are reasonably believed to have occurred in connection with the Customer's account, MSweb will investigate forthwith and, if necessary, change the relevant Customer data, including access codes and passwords and give the Customer immediate notification. A copy of the results of any investigation will be provided to the Customer at no cost. 9.4 The Customer shall advise MSweb immediately should any other person gain access to its Customer Data following the MSweb procedures relating to reporting misuse http://www.MSweb.co.za/index.php/hosting/legal/reporting-abuse-procedure/ and shall give its full co-operation to MSweb in any investigation carried out by MSweb. 9.5 The Customer hereby indemnifies MSweb against any claim howsoever arising from (i) the Customer's disclosure of its Customer Data to a third person, (ii) the use of such Customer Data by a third person and/or (iii) any action by the Customer or third party as a result thereof. 9.6 MSweb reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its infrastructure and the Customer undertakes that it will not do or permit anything to be done which will compromise MSweb's security. 9.7 Although MSweb applies reasonable endeavours to provide disaster recovery, MSweb does not specify any recovery time, nor is MSweb liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with any cause whatsoever as a result of its failure to provide, or delay in providing, or providing only partial disaster recovery. The Customer is required to make back-ups of its data. Nothing contained in the MSweb Hosting Terms shall be construed as a representation that any back-ups of data implemented by MSweb will be successful or in any way will avoid disaster. 10. Warranties 10.1 MSweb warrants that it has the facilities, infrastructure, capacity and capability to provide the Services. 10.2 Save for the foregoing warranty, the Services are provided "as is" and "as available" and without any further warranty of any nature whatsoever, whether express or implied, including without limitation warranties of merchantability, fitness for purpose, title or non-infringement. 10.3 Under no circumstances shall any advice or information furnished by MSweb, its agents or employees be construed as a warranty of any kind. 11. Intellectual Property Rights 11.1 The Customer is obliged to comply with all laws applicable to any Intellectual Property Rights in respect of any data and/or information accessed, retrieved or stored by the Customer through the Customer's use of the Services. 11.2 The Customer is prohibited from using any of the MSweb or konsoleH Marks without the prior written approval of MSweb. 11.3 The Customer hereby grants MSweb a non-exclusive licence to use its Marks for the limited purposes of enabling MSweb to exercise its rights or to fulfil its obligations under the MSweb Hosting Terms. 11.4 Other than as specifically provided for in the MSweb Hosting Terms, MSweb will wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all Intellectual Property Rights employed in or otherwise related to its network infrastructure, business and the provision of any of the Services in terms of the MSweb Hosting Terms. 12. Customer Indemnities 12.1 The Customer acknowledges that the Services are provided subject to all applicable laws and the Customer accordingly hereby indemnifies MSweb from any liability attributable to any regulatory body or civil or criminal proceedings instituted against MSweb or for any loss or damage suffered by the Customer or any third party as a consequence of any interruption or unavailability of the Services. 12.2 The Customer hereby unconditionally and irrevocably indemnifies MSweb and agrees to hold MSweb free from and harmless against all losses suffered or incurred by the Customer or MSweb or instituted against MSweb by any third party as a direct or indirect result of the Customer's use of the Services, the Customer's failure to comply with any MSweb Hosting Terms, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included, but without limitation, within the ambit of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following: (i) software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services, (ii) non-performance or unavailability, of whatever nature and howsoever arising, of any of the services provided by a electronic communications network or service provider, including, but not limited to, line failure, or in any international Services or remote mail servers, (iii) non-performance or unavailability, of whatever nature and howsoever rising, of external communications networks to which the Customer or MSweb's network infrastructure is connected and (iv) repairs, maintenance, upgrades, modifications, alternations or replacement of any hardware forming part of the Services or any faults or defects of whatever nature in such hardware. 12.3 The Customer shall defend MSweb against any claim against which MSweb is indemnified in terms of clause 12.2 and elsewhere in the MSweb Hosting Terms ("indemnified claim") and pay any and all costs, damages and expenses (including attorneys fees on the attorney and own client scale) finally awarded against MSweb by a court of competent jurisdiction or agreed to in a written settlement agreement signed by the Customer directly arising out of such indemnified claim, provided that (i) MSweb shall notify the Customer in writing as soon as MSweb becomes aware of the indemnified claim to enable the Customer to take steps to contest it, (ii) the Customer may assume sole control of the defence of such claim and/or related settlement negotiations and (iii) MSweb shall provide the Customer, at the Customer's expense, with the assistance, information and authority necessary to enable the Customer to perform its obligations under this clause. 12.4 The Customer shall pay to MSweb the amount of an indemnified claim forthwith upon receipt of request for payment unless the Customer contests the indemnified claim in which case the Customer shall pay to MSweb the amount of the indemnified claim forthwith after any judgment or order is granted, provided that in those circumstances where the Customer does not at any time proceed with the contest of the claim timeously and promptly, MSweb shall be entitled to require the Customer either to pay the amount of the claim in question in trust to its attorneys pending the outcome of the proceedings, or MSweb shall be entitled to require the Customer to give proper and adequate security therefore. 13. Suspension of the Services 13.1 MSweb is entitled to temporarily suspend its obligations in terms of the MSweb Hosting Terms (i) in order to give effect to the provisions of clauses 8.3 and/or 9.5, (ii) in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the Services and/or (iii) where third parties have alleged that the Customer has engaged in unlawful activities arising from or connected to the Services. 13.2 Where circumstances permit, MSweb will use its best endeavours to provide prior notice of any such suspension to the Customer and MSweb shall not be liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with or from any cause whatsoever as a result of such suspension. 14. Termination 14.1 Termination by either Party: Either party may terminate the MSweb Hosting Terms together with all Services, or individual Services, on thirty (30) days written notice ( billing@MSweb.co.za) to the other Party at their chosen domicilium citandi et executandi in terms of clause 18. It is also possible to terminate your hosting with MSweb via the konsoleH control panel. 14.2 All purported terms of termination communicated to MSweb in any manner other than as specified above may, at MSweb's sole discretion, be deemed to have been invalidly given and without force and effect. 14.3 Breach: Should the Customer breach any of the MSweb Hosting Terms, then MSweb shall be entitled, without prejudice to any other rights that MSweb may have and without notice to the Customer, to (i) forthwith claim immediate payment of all outstanding charges due to MSweb, (ii) terminate or suspend the Customer's use of any or all of the Services, (iii) terminate its relationship with the Customer and/or (iv) list the Customer with any credit bureau or Internet service provider list or the South African Fraud Prevention Service which the Customer hereby expressly consents to. In all instances, MSweb shall be entitled to retain all Services Fees already paid by the Customer and recover all of its costs associated with the Customer's breach, including without limitation, legal costs on an attorney and own client scale, whether incurred prior to the institution of, or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of such judgment. 14.4 Retention of hardware or software: The Customer acknowledges that where MSweb is in possession of any hardware or software belonging to the Customer as a result of MSweb's provision of the Services to the Customer, and the Customer is in default of its payment obligations to MSweb, MSweb shall be entitled to retain such hardware and/or software pending the Customer's settlement of all amounts owed by the Customer to MSweb. In addition, where the Customer fails to make payment of all amounts owed to MSweb within sixty (60) days of any notice by MSweb to the Customer in that regard, MSweb shall be entitled, but not obliged, to dispose of such property in order to defray any expenses as well as any amounts owed by the Customer to MSweb. 14.5 Return of hardware or software: Where the Customer is in possession of any MSweb hardware or software in consequence of the provision of a Service and the Service to which that hardware or software relates is terminated, the Customer will immediately return such hardware or software to MSweb and shall not be entitled to retain such hardware or software for any reason whatsoever. 15. Force Majeure 15.1 On the happening of a Force Majeure Event, any delay or failure in performance or breach by MSweb occasioned thereby or resulting there from will not be deemed to be a breach of the MSweb Hosting Terms by MSweb, nor shall it subject MSweb to any liability whatsoever. 15.2 For purposes of clause 15.1, a "Force Majeure Event" means any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure and/or telecommunications lines provided by any third party, including, but not limited to, the Telkom Limited group of companies, or any circumstances of like or different nature beyond MSweb's reasonable control. 16. Dispute Resolution 16.1 Any dispute which may arise between the Parties shall be referred to arbitration and resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator. 16.2 The arbitrator shall be agreed upon between the Parties and failing such agreement, and within a period of ten (10) days after the arbitration has been demanded by either the Parties, either of the Parties shall be entitled to request the chairperson for the time being of AFSA to make the appointment who, in making the appointment, shall have regard to the Party's requirement of speedy arbitration. 16.3 Clauses 16.1 and 16.2 shall not preclude either Party from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator. 16.4 The arbitration shall be held (i) in Cape Town at a venue agreed to between the Parties in writing, (ii) in English and (iii) as soon as practically possible and with a view to it being completed within twenty one (21) days after it has been demanded. 16.5 The Parties irrevocably agree that any award that may be made by the arbitrator (i) shall be final and binding, (ii) will be carried into effect and (iii) may be made an order of any Court to whose jurisdiction the Parties are subject. 16.6 The provisions of this clause 16 (i) constitute an irrevocably consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or to claim at any such proceedings that it is not bound by such provisions and (ii) are severable from the other provisions of the MSweb Hosting Terms and shall remain in effect notwithstanding the termination of, or invalidity for any reason, of any of the MSweb Hosting Terms. 17. Exclusion and Limitation of Liability 17.1 Neither MSweb, its directors, employees, agents, consultants and advisers shall be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising, or may arise out of the Services and/or the use thereof, under contract, delict including negligence and / or gross negligence or otherwise), sustained by the Customer, its directors and/or servants, including but not limited to any loss of profits, loss of operation time, corruption or loss of information and/or loss of contracts and/or profits. 17.2 MSweb's total liability to the Customer shall accordingly be limited to the payment of direct damages only, which direct damages shall be limited to a maximum amount of (i) three months of the Customer's base hosting fee or (ii) R2 500,00 (Two Thousand Five Hundred Rand), whichever is the lesser. 17.3 MSweb's liability for direct damages under clause 17.2 shall be excluded where such liability results or may result from the Customer's use of any third party Services or products accessible or used in conjunction with the Services, but which are not provided by MSweb. 17.4 The exclusion of liability under clauses 17.1 and 17.3 and limitation of liability under clause 17.2 shall apply notwithstanding the fact that MSweb may have been advised of the possibility of such loss or damage being incurred prior to its occurrence. 18. Domicilium Citandi Et Executandi 18.1 Addresses: The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses: 18.1.1 MSweb: 6 Sandpiper Road Bromhof Randburg, South Africa, +27 (0) 11 793 2017 (fax); 18.1.2 The Customer: The physical address furnished to MSweb on the application form when the Customer first subscribed for the Services, as amended in writing pursuant to any change of address, which the Customer is hereby required to furnish to MSweb within ten (10) days of the change of such address. 18.2 Notice or communication to be in writing: Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing. 18.3 Requirements for notices: Any notice to a Party (i) sent by prepaid registered post in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 10th (tenth) business day after posting, (ii) delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery, or (iii) sent by telefax to its chosen telefax number stipulated in clause 18(a), shall be deemed to have been received on the date of despatch. 19. General 19.1 Whole Agreement: The Agreement, together with the other documents making up the MSweb Hosting Terms constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in the Agreement. 19.2 No Variation: No variation or consensual cancellation of the Agreement and no addition to the Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives. 19.3 Waiver: No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 19.4 Severability: Should any of the terms and conditions of the 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. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity. 19.5 Applicable Law: The Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law. 19.6 Survival: Notwithstanding termination of the Agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.
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Acceptable use policy	Users of MSweb services are required to agree and conform to the Terms of Service and Acceptable Use policies as defined in the topics below. Violations of these policies may result in loss of service or other disciplinary action. Abuse and Spam We have a strong position against unsolicited e-mail. Adult Content Certain content is better suited for hosting elsewhere. Misuse of Account Features Your account features are for use with your sites only. Interactive Chat These systems are restricted for technical reasons. Resource Usage Excessive resource usage will cause performance and stability problems. Database Resource Usage Certain database usages will require a dedicated server. Cron Usage Automated tasks may run subject to these conditions. Traffic Usage Traffic consumption is monitored with monthly automated billing for over-usage. Server Side Processes Daemons and other resident programs are not welcome for Web Hosting. Security and Cracking These abuses are taken very seriously. Domain Registrations Lame delegations are not welcome. Disk Usage Disk space usage is monitored with monthly automated billing for over-usage. 1. Abuse and spam (Last updated: 1 August 2007) (Previous version: 26 May 2006) 1.1 Spamming is forbidden. “Spamming” includes, without limitation, the transmission of unsolicited communications through the MSeb e-mail, instant messaging, SMS, chat rooms, discussion boards and similar facilities used for the purposes of communicating with other persons, creating false accounts for the purpose of sending Spam, sending unauthorized e-mail via open, third party servers, sending e-mails to users who requested to be removed from the mailing list and selling or exchanging the e-mail address of any person without that person’s consent. MSeb reserves the right to suspend or terminate the services in accordance with its General Terms should you breach this policy. 1.2 As a MSeb customer, should you infringe this policy, you will be held liable for any costs incurred by MSeb, both monetary and in reputation. 1.3 The use of any other service to make such a mailing or posting, with any reference to MSeb services (including but not limited to mailboxes, autoresponders, and Web pages), shall also be grounds for account termination as described above. 1.4 This is our first and most stringently enforced policy. Abusive behaviour can severely damage an online reputation and business. We will not tolerate such incidents of abuse. 1.5 For further information, please read our FAQ on spam: http://supportcentre.MSweb.co.za/index.php?action=sub_faq&id=55 2. Adult content (Last updated: 1 August 2007) (Previous version: 27 March 2000) 2.1 Our services are tuned for general purpose use. It is in the interest of efficiency and reliability to restrict these sites, in order to provide the best service for the majority of our customers. 2.2 Exceptions are made for educational sites. 2.3 Adult-oriented sites, designed for entertainment or commercial purposes, are not allowed on MSweb servers. Forbidden sites include those that provide access to pornographic materials, whether for free or for payment, regardless of whether adult verification is used or not. 2.4 If MSweb in its sole and unfettered discretion determines that any customer content violates any law, including the Film and Publications Act, 65 of 1966 or this policy, it may: 2.4.1 Request the customer to immediately remove such content; and/or 2.4.2 Require the customer to amend or modify such content; and/or 2.4.3 Without notice, terminate access to any services and/or suspend or terminate any services; and/or 2.4.4 Without notice, delete the offending content; and/or 2.4.5 Notify the relevant authorities of the existence of such content (if required by law or otherwise), make any backup, archive or other copies of such material as may be required by such authorities, disclose such elements of the customer’s date as may be requested by the authorities and take such further steps as may be required by such authorities. 3. Misuse of account features (Last updated: 1 August 2007) (Previous version: 27 March 2000) 3.1 Operating any service which makes an account feature available to third parties for any use other than normal access to that account's Web site is forbidden. Operating any service which enables or assists anonymous or abusive behavior by third parties is forbidden. Operating any service which affects the stability or reliability of any MSweb server or network component, impacts other users or the company negatively, or degrades quality of service is forbidden. 3.2 This includes but is not limited to third party access to CGI services, database hosting, counters, banner exchanges, autoresponders, mailboxes, mail forwarding, mail filtering, and content publishing systems. All account features are to be used solely in order to develop and implement the Web site(s) associated with that account. Resellers may make reasonable use of account features shared between multiple accounts they are being billed for. 3.3 This means that, for example, you cannot: 3.3.2 resell autoresponders to third parties 3.3.3 run a service like hotmail.com or gmail.com 3.3.4 run a service like pobox.com 3.3.5 run a service like linkexchange.com 3.3.6 run a service like thecounter.com 3.3.7 run CGI scripts for other sites 3.3.8 host a remailer. 3.4 Certain usages are acceptable on our dedicated server options. Those exceptions will be made on a case-by-case basis only, and MSweb reserves the right to discontinue service for any system whose maintainer is unable or unwilling to control abuse or related problems. 4. Interactive chat (Last updated: 1 August 2007) (Previous version: 27 March 2000) 4.1 Interactive Web applications, of the specific type commonly known as "chat", are not allowed on MSweb servers, unless the server is a Fully Managed dedicated server and provided that it does not interfere with MSweb’s ability to manage the server on the customer’s behalf. 4.2 For the purposes of this policy, a "chat" system is defined as a Web site or portion thereof that encourages visitors to post messages in order to engage in "real-time" conversation with other visitors at the same site. 4.3 Interactive Web applications are not suitable for MSweb’s shared hosting environment due to the high levels of resource usage that they require. 4.4 MSweb, does permit its Users to host forums provided that they are moderated in accordance with MSweb’s Forum Rules published from time which inter alia require that the moderators filter out all unlawful, adult of explicit content. 4.5 MSweb permits its users to host their own personal web logs (blogs) on the following basis: 4.5.1 you accept and understand that any content that you provide to a blog enters an open, public forum, and is not confidential; 4.5.2 by disclosing personal information such as your name and email address in a blog, you acknowledge and understand that this information may be collected and used by other persons to communicate with you; 4.5.3 you may be held legally liable for the content that you provide in a blog; 4.5.4 MSweb does not generally monitor or moderate blogs run on servers it hosts and therefore does not have knowledge of the content on the blog’ 4.5.5 MSweb does not condone, approve, endorse or support any content on the blog; 4.5.6 You use the blog at your own risk and indemnify MSweb against any liability, loss or damage resulting therefrom. 4.6 MSweb reserves the right to remove any offending content or stop or suspend your use of a blog or hosting a forum. 5. Resource usage (Last updated: 1 August 2007) (Previous version: 11 March 2003) 5.1 Where the volume or resource usage negatively impacts on other clients in our hosting environment - this may result in immediate suspension of hosting services. This may be due to excessive server hits, excessive bandwidth usage, inefficient scripts or database queries along with any other items for which system administrators deem a misuse of server resources. 5.2 Users may not, through a cron job, CGI script, interactive command, or any other means, initiate the following on our servers: 5.2.1 Run any process that requires more than 16Mb of memory space. 5.2.2 Run any program that requires more than 30 CPU seconds. 5.2.3 Use ‘Find’ anywhere except in their own directories. 5.2.4 Have more than 32 open files. 5.2.5 Run more than 8 simultaneous processes. 5.2.6 Send out mail to more than 500 recipients (email addresses) within one hour. 500 recipients represent one of the following: 500 recipients for one email, 500 individual emails or a combination of the two. 5.2.7 Send or receive, through mail, any file larger than 10MB. This limit is enforced in our software. 5.2.8 Accumulate more than 2000 mail messages in a single pop mailbox. If the message count is exceeded, new messages will bounce to the original sender. 5.2.9 Run their own mailing list software. 5.2.10 Run an interactive chat application. 5.2.11 Run a banner exchange, remotely accessible web counter, or any other services that perform CGI processes for sites outside our network. 5.3 These limits are subject to change and variation as necessary, at the sole discretion of MSweb. 5.4 The restrictions on mail delivery exist for a very simple reason: We run Web servers, not mail servers. Processing large amounts of mail adversely affects Web server performance. 5.5 If we find that you are performing bulk mail runs, regardless of whether it is Spam or not, we will have to deactivate your account and investigate. Please send such mailings through your local ISP's mailserver, or any other mailserver which you are authorized to use. Many such mailservers are configured especially to handle an extremely high volume of mail. 5.6 CGI scripts are to be run only by users with the appropriate account types -Basic or higher account levels for custom CGI scripting. No user may run CGI scripts for the benefit of external sites or services. This includes in particular all variations of "free Web counter" services. 5.7 The use of system resource limits is intended to prevent runaway CGI scripts on an unattended server. Also, processes with large memory footprints or hungry CPU requirements will incur swapping and other slowdowns that cause problems for every site on the server. 5.8 Resource limits are enforced by automatic monitoring systems. This is not applicable to Fully Managed dedicated servers, providing that it does not interfere with MSweb’s ability to manage the server on the customer’s behalf. 6. Database resource usage (Last updated: 1 August 2007) (Previous version: 27 March 2000) 6.1 MySQL and PostgreSQL databases are provided free-of-charge, subject to the conditions and restrictions below, to holders of the account types designated Basic and above. 6.1.1 Each qualifying individual account is limited to the allocated quota as published in the price matrix. 6.1.2 Each individual database is allotted up to 20 MB (megabytes) of disk space. Extra disk usage within reason is allowed, and may be charged for at our normal disk overusage rate if deemed appropriate. 6.1.3 Databases may not be used for circumventing account disk allowances by storing web sites within the database. 6.1.4 Databases may only be used in conjunction with MSweb hosted accounts. Access to databases from outside our local network is provided strictly for site and database development. 6.1.5 Databases may not be used to store binary files (including but not limited to image and application files). These files should be stored within the user account and referred to in the database by a "pointer," if needed. 6.1.6 MSweb reserves the right to require changes to databases and database usage that has an adverse impact on a database server and/or other user databases on that server. MSweb may move the database to a new server, or in extreme cases, MSweb reserves the right to disable any database determined to be unacceptably harming performance of a database server. 6.2 MSweb reserves the right to implement further allowances for database usage in the future, as new tools for determining a database's server impact are developed. 6.3 This policy exists in order to protect the integrity and performance of the database servers for all users. Accounts that acquired more than 5 databases before this policy went in to effect will be allowed to operate them for the lifetime of that account. 6.4 This is not applicable to Fully Managed dedicated servers, providing that it does not interfere with MSweb’s ability to manage the server on the customer’s behalf. 7. Cron usage (Last updated: 1 August 2007) (Previous version: 27 March 2000) 7.1 The use of "cron jobs", which are processes that are run automatically at certain times, in accordance with a "crontab" file set up by each user, are allowed on MSweb servers, subject to the following conditions and restrictions: 7.1.1 The user's account must be Basic or higher. 7.1.2 The job must not execute more often than every two hours. 7.1.3 The job must generate no greater impact than a CGI script. See the guidelines on CGI resource usage. 7.1.4 The job must be "niced". For details, read about the nice command (through telnet, with "man nice"). The preferred value is 10 or greater. 7.2 This policy exists to protect the servers from abuse. However, it does still allow reasonable usage of cron, which is forbidden by most providers. 7.3 This is not applicable to Fully Managed dedicated servers, providing that it does not interfere with MSweb’s ability to manage the server on the customer’s behalf. 8. Traffic usage (Last updated: 1 August 2007) (Previous version: 23 October 2005) Monthly Traffic Usage on Web Hosting Starter & Business accounts 8.1 Every hosting account that MSweb offers has an allocated monthly traffic usage quota i.e. the Basic account has a monthly traffic quota of 1 500 MB, while the Master account has 5 000 MB of monthly traffic. 8.2 Below is a detailed table of MSweb’s monthly traffic (data transfer) quotas for both South African and German Web Hosting Accounts: Hosting Accounts SA Monthly Traffic Quota German Monthly Traffic Quota Micro 300 MB 5 000 MB Micro Pro 500 MB 10 000 MB Basic 1 500 MB 20 000 MB Standard 2 500 MB 40 000 MB Advanced 3 500 MB 60 000 MB Master 5 000 MB 100 000 MB 8.3 Over-usage is monitored and automatically billed as per MSweb’s price schedule: R0.19/MB for SA traffic over-usage and R1.50/GB for German traffic over-usage. 8.4 Where applicable, customers are sent notification emails from MSweb informing them of any domains that have exceeded the allocated traffic usage quota, providing an opportunity to upgrade to a higher account or transfer to one of our German servers in order to avoid unnecessary over-usage charges. 8.5 This policy is intended to regulate traffic consumption in order to ensure the financial viability of our business model. For most customers, traffic consumption costs are difficult to quantify and a cause for uncertainty. However, be assured that less than 1% of MSweb's customers are consuming 20% of traffic and it is this customer segment that needs to account financially for "above norm" traffic consumption. 8.6 It remains the responsibility of our customers to monitor and request assistance from MSweb should your usage appear unusual. MSweb does not actively monitor individual accounts over and above the notifications provided within konsoleH, MSweb’s control panel. 8.7 If you have genuine doubts that your website will fall into the 1% category of high volume sites, please make use of the ‘Traffic Usage’ tool found within konsoleH, MSweb’s award-winning, proprietary control panel. With this tool, customers can regularly monitor their traffic usage. Questions? Read the Traffic Usage FAQ on MSweb’s Support Centre or write to support@MSweb.co.za. 9. Server side processes (Last updated: 1 August 2007) (Previous version: 27 March 2000) 9.1 The installation or operation of any stand-alone, unattended server-side process (daemons) on MSweb servers, with the exception of cron jobs subject to their own policy, is forbidden, except by special arrangement. This specifically includes IRC bots or clients as well as any redirector programs. Use of such a process to accept network connections, for any purpose whatsoever, is expressly forbidden. Violation of this policy will result in immediate account termination without warning. 9.2 This policy exists for several reasons: 9.2.1 To protect the CPU and memory resources available on each server. 9.2.2 To protect and enhance system security by not allowing unapproved third-party programs to accept connections from the outside world. 9.2.3 To allow us to be aware of any such programs, by requiring that special arrangements be made. This is not applicable to Fully Managed dedicated servers, providing that it does not interfere with MSweb’s ability to manage the server on the customer’s behalf. 10. Security and cracking (Last updated: 1 August 2007) (Previous version: 27 March 2000) 10.1 Use of MSweb services to engage in any type of fraud, "cracking", malicious behavior, or harassment is expressly forbidden and may constitute a cyber crime under the Electronic Communications and Transactions Act 25 of 2002 (see ECT Act) which renders you liable to a fine or imprisonment. Interference with the proper operation of systems reachable via the Internet is forbidden. Compliance with the acceptable use policies of any network or system with which you connect through our service is required. Forging e-mail, Usenet postings, or other messages is forbidden. Trafficking in pirated software is forbidden. Port scanning or the use of similar tools is forbidden. 10.2 Use of MSweb services to publish or otherwise disseminate information about the availability of pirated software or other material that is being made available illegally, including the publication of a list of links to such material, regardless of disclaimers, is specifically forbidden. We do not condone or encourage any illegal material or behavior. 10.3 If inappropriate activity is detected, all accounts of the user in question will be deactivated until the investigation is complete. Prior notification to the user is not assured. In extreme cases, law enforcement will be contacted regarding the activity. 10.4 This policy simply requires that you use your accounts responsibly. Breaking into other systems, trying to break into ours, forging messages, swapping games with your friends - all of this is illegal and inappropriate for our userbase of Internet professionals. 10.5 Because of the potential legal and technical risks these activities can present to our service, we deactivate first, and ask questions later. This is necessary to protect our service for all customers. 11. Domain registrations (Last updated: 1 August 2007) (Previous version: 27 March 2000) 11.1 With regard to the support of domain names for "virtual hosting" and "parking", several points of policy apply: 11.1.1 For all domains, the nameservers must be selected and approved by MSweb, including all secondaries. Secondary name service is not shared with a third party except by special pre-arrangement. 11.1.2 MSweb reserves the right to refuse to host, register, or support domain names that it finds offensive or libelous. Judgement of what constitutes "offensive" or "libelous" shall be at the sole discretion of MSweb. 11.1.3 MSweb makes no attempt to exercise control over its customers' domains, and will not make modifications to administrative, billing, organization, or other associated records, without prior permission, except in cases of emergency or violation of this policy. 11.1.4 Registering any domain to our nameservers without the intent of paying our fees or the authoritative NIC's fees is expressly prohibited. Registering multiple domains with no intent of using those domains for service is forbidden. Anyone found to be "warehousing" domain names for resale or not in "good faith" will have their services terminated at our discretion, and we may contact the appropriate NIC and advise them of the situation. 11.1.5 The use of any domain name that is considered offensive, defamatory, libelous or violative of any local, state, federal or international law including any violation of intellectual property, copyright, trademark, trade secret, misappropriation and anti-dilution laws is strictly prohibited. It is the sole responsibility of the domain name owner to take all steps necessary to ensure that the domain name selected is not violative of any law or any other party's rights. 11.1.6 You agree to indemnify, defend and hold harmless MSweb from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting from your registration, acquisition or use of a domain name which damages either you, MSweb or any other party or parties, without limitation or exception. 11.1.7 Domain names that have been registered with MSweb as the Billing Contact and that have not been paid for within the period specified on the MSweb invoice will be deleted or reregistered into MSweb's ownership. 11.2 We are strongly opposed to anyone collecting large numbers of domain names and selling them off. If you need to hold onto a couple of names for future projects, that's fine; if you are registering hundreds of names just because they're combinations of words, or because you think someone might want the names from you in the future, you'll have to find service elsewhere. 11.3 Accurate ‘WHOIS’ information: Domain owners or resellers acting on behalf of the domain owner have a responsibility to ensure that the WHOIS information is accurate at all times. MSweb’s automated systems capture information that is provided for the domain ownership used to submit the application to the registration service provider; however it remains the registrant’s responsibility to ensure that this information is valid and remains accurate. MSweb will not accept liability for the failure of the domain owner or resellers acting on behalf of the domain owner to check their records. Failure to do so may result in the loss or deletion of your domain name. 12. Disk usage (Last updated: 1 August 2007) (Previous version: 23 October 2005) 12.1 Every hosting account that MSweb offers has an allocated disk space usage quota. Disk usage quotas on Web Hosting accounts: Micro – 50 MB Micro Pro – 150 MB Basic – 1 GB Standard – 2 GB Advanced – 3 GB Master – 4 GB 12.2 Where applicable, customers are sent monthly emails from MSweb notifying them of any domains that have exceeded the allocated disk space quota, providing an opportunity to reduce disk space or upgrade to a higher account in order to avoid unnecessary charges for over-usage. 12.3 An important note is that MSweb will round off over-usage to the nearest 10MB. For example, a Micro Pro account with a quota of 50MB is currently using 58MB of disk space, which is 8MB of over-usage. MSweb will not charge for this additional usage. However, should the customer increase usage to 61MB, MSweb will round off over-usage and charge R5 for the extra 10MB block. 12.4 In order for MSweb to operate with greater efficiencies and for our customers to have the flexibility and control of actively managing their disk space, an automated system tracks, notifies and charges for over-usage. 12.5 Customers can regularly monitor their disk usage via konsoleH by clicking on ‘Disk Usage’ under Statistics & Reports, which will give customers a reading of the total size of the account together with a summary of individual folder sizes.
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