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Server Farming Terms & Conditions
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| MegaWeb Internet Services cc (hereafter referred to as “MegaWeb”) hereby agrees to provide Dedicated Server Hosting services (hereafter referred to as the “services”) to the Subscriber, as are described and listed in the customized quotation (hereafter referred to as the “quotation”), attached to this agreement.
The provision of the Services will be upon the terms and conditions as set out in this agreement.
These terms and conditions (hereinafter referred to as the “agreement”) shall, constitute the whole of the agreement between MegaWeb and the subscriber relating to the subject matter hereof, notwithstanding anything in the subscriber’s enquiry, specification, acceptance, order or other documentation or discussion to the contrary. In the event of any conflict arising between the terms of this agreement on the one hand and the application form or other said documents on the other hand, then, unless a contrary intention clearly appears, the terms of this agreement shall always prevail. |
| | The Parties agree as follows: |
| | 1. Effective Date | | The effective date of this agreement is the date on which the provision of services commences. Where the effective date occurs after the date of signature on this agreement, nothing contained within the agreement can be construed as to give either party a right to cancel the agreement before the effective date. |
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| | 2. Variation or Amendment | No amendment or consensual cancellation of this agreement or any provision or term thereof shall be binding unless recorded in a written document signed by a duly authorised representative from both MegaWeb and the Subscriber. | | 2.1 | 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. It shall also not preclude any of the parties thereafter from exercising its rights strictly in accordance with this agreement. | | 2.2 | Either party shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract between MegaWeb and the Subscriber or not. |
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| | 3. Duration | The provision of services will shall endure as of the effective date for an initial period of 3 months (hereafter referred to as the “initial period”). | | 3.1 | After the initial period, this agreement will automatically be renewed on a monthly basis, unless written notice of termination is provided by either party, no less than 30 days prior to termination. | | 3.2 | Any renewal of this agreement is subject to the terms and conditions contained herein, but subject to price changes upon reasonable notice by MegaWeb. |
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| | 4. Upgrades | | Where the subscriber requests upgrade(s) to the services and MegaWeb agrees to provide such upgrades, it is recorded that the subscriber will be held responsible for the additional fees incurred by such upgrades, while the terms and conditions in this agreement will remain valid. It is noted that fees for upgrades are in addition to the fees set out in the original quotation. |
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| | 5. Charges | The subscriber agrees to provide payment to MegaWeb for all charges set out in this agreement, the attached quotation and all upgrades agreed to by both parties. | | 5.1 | The subscriber agrees to pay all fees and charges, in South Africa currency, on the agreed date, without deduction of any amount for whatever nature or reason. | | 5.2 | All fees are payable in the beginning of the service period for that period of service. | | 5.3 | The subscriber shall ensure that there are sufficient funds in the account, details of which is to be provided to MegaWeb, for debit order and credit card payments, or that other forms of payment are provided timeously. Failure to comply with this will result in the suspension of services and/or the levying of interest and/or clean-up charges by MegaWeb. | | 5.4 | Any amount falling due for payment by the subscriber to MegaWeb in terms or pursuant of this agreement which is not paid on its due date shall bear interest. This interest is calculated from the due date for payment, at a rate of prime per month, monthly in arrears. In addition, MegaWeb shall be entitled to suspend the services until such time as payment is provided in full. | | 5.5 | MegaWeb reserves the right to increase its prices upon reasonable notice. Failure by the subscriber to terminate this agreement within 30 days of such notice shall constitute acceptance of the new charges. | | 5.6 | All consulting services rendered by MegaWeb employees to the subscriber shall be charged for separately by MegaWeb to the subscriber. This will be at the usual rate per hour, which MegaWeb ordinarily charges for such consulting services, plus such additional sum as MegaWeb would usually charge for travelling time if consulting services are to be rendered at the subscriber’s premises. All charges for consulting services rendered are payable within 30 days. | | 5.7 | Traffic Charges: Where MegaWeb deems the bandwidth usage by the subscriber to be abusive or unreasonable for the level of service purchased, or the bandwidth usage threatens the quality of service to other users on the MegaWeb network, MegaWeb reserves the right to, at its sole discretion, limit the amount of bandwidth or request that the subscriber upgrades to a solution with the relevant charges for higher bandwidth requirements. | | 5.8 | In the event of any dispute arising as to the amount or calculation of any charge provided for herein which is payable by the subscriber, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on MegaWeb and the subscriber. |
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| | 6. Termination | This agreement may be terminated by either party after the initial period by providing written notice of termination to the other, 30 days prior to cancellation of services. | | 6.1 | For the purposes of this agreement, the breach or threatened breach by either party of any of its material obligations under the agreement is a terminating event. | | 6.2 | The agreement may be terminated immediately on the happening of a terminating event at the option of the affected party upon the sending of notice by post or email to the party in breach. | | 6.3 | Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control. | | 6.4 | Termination of the agreement does not release the subscriber from paying any fees, which are due at the time of termination. |
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| | 7. Warranties | | MegaWeb makes no warranties or representations of any kind, whether express or implied as to the service it is providing. | | 7.1 | MegaWeb disclaims any warranty of merchantability or fitness for any purpose and will not be responsible for any damages that may be suffered by the subscriber, including loss of data resulting from delays, non-deliveries or service interruptions, or errors and omissions on the part of the subscriber. | | 7.2 | Use of any information obtained through MegaWeb and its representatives is at the subscriber’s own risk. | | 7.3 | Any reference to connection speed and bandwidth is subject to the availability of end to end bandwidth on all the relevant networks and no guarantees or warranties are provided by MegaWeb in this regard. |
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| | 8. Subscriber’s obligations | | The subscriber shall comply strictly with all restrictions imposed on computer networks through which any information and/or data transmitted by the subscriber passes. | | 8.1 | | The subscriber may not commit nor attempt to commit any act or omission which directly or indirectly- | | 8.1.1 | in any way damages the technical infrastructure of MegaWeb or any part thereof, | | 8.1.2 | impairs or precludes MegaWeb from being able to provide the service in a reasonable and businesslike manner; | | 8.1.3 | constitutes an abuse or malicious misuse of the service; | | 8.1.4 | or is calculated to have the above-mentioned effect. |
| | 8.2 | In such an event, should MegaWeb incur expenses to remedy the situation MegaWeb reserves the right to charge the subscriber an amount that is necessary to cover Megaweb’s additional expenditure. | | 8.3 | The subscriber is prohibited from selling, reselling or otherwise dealing with the service in any manner whatsoever. Any consideration, which the subscriber may receive whilst acting in breach of this prohibition, shall be forfeited to MegaWeb. (What about resellers?) | | 8.4 | The subscriber is prohibited from allowing any other party access to the service through any of the subscriber’s equipment, personnel and/or address. | | 8.5 | The subscriber may not at any time use the service in contravention of any South African law. In particular, the subscriber undertakes to familiarise itself and ensure that it is kept continuously appraised of all South African law in force from time to time which has any bearing on the service and/or its use. MegaWeb has no obligation to assist the subscriber in this regard. |
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| | 9. Server Content | MegaWeb will not be responsible for exercising control over the content of the material hosted on or passing through its network. | | 9.1 | MegaWeb forbids the hosting of pornographic content. This includes, but is not limited to web sites and banners for web sites including hard and soft-core pornography and distribution of adult web site passwords. | | 9.2 | MegaWeb forbids the hosting of content, which promotes racism, sexism, and the superiority of any nationality over another, or any other hatred messages. | | 9.3 | MegaWeb forbids the hosting of content that promotes activities that are in violation of South African and International Law, or export restrictions. This includes, but is not limited to “warez” sites (freely distributing copyrighted programs), or sites promoting hacking and/or cracking programs. |
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| | 10. Exclusion of Liability | | MegaWeb its servants or agents, and except as otherwise expressly provided herein to the contrary, shall not be liable to the subscriber or any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against MegaWeb or against the subscriber by any party arising directly or indirectly out of the service, its use, access, withdrawal or its suspension or out of any information or materials provided or not provided, as the case may be, by or from it or their use. | | 10.1 | The subscriber hereby indemnifies MegaWeb against and holds MegaWeb harmless from any claim by any party arising directly or indirectly out of access to or use of the service or information obtained through the use of it, or in respect of any matter for which liability of MegaWeb is excluded in terms of clause 10. | | 10.2 | 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 service is provided, the provision of the service may be suspended from time to time without notice by MegaWeb. All liability on the part of MegaWeb of any loss or damage (whether directly or consequential) thereby incurred or for any costs, claims or demands of any nature arising there from, is excluded, and the provisions of clause 10 shall apply mutatis mutandis to such exclusion. Should the provision of the service be suspended by MegaWeb for the purpose aforementioned for a period in excess of 48 (forty eight) consecutive hours, MegaWeb shall give the subscriber credit in an amount which represents a pro rata portion of the Subscriber’s basic subscription fee for the month during which the said suspension occurred. | | 10.3 | Without in anyway limiting the provisions in clause 10, any damages that MegaWeb may be held liable for to the subscriber shall be limited to and will not exceed the aggregate of fees and charges paid by the subscriber under this agreement for the period of 2 months preceding the date upon which any such cause of damage arose. | | 10.4 | The subscriber acknowledges that from time to time there may be a suspension in services due to causes beyond the control of MegaWeb. For the purpose of this agreement such causes include, but is not limited to acts of God, civil commotion, rights, insurrection, theft, fire, explosion, governmental embargoes, war, sabotage, national emergency, martial law, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, epidemic, quarantine, radiation or radio active contamination, action or inaction of any government or other competent authority including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order (including any order of Court), and breakdown of plant, machinery or equipment, externally caused transmission interference or satellite failure or satellite malfunction, or satellite downtime for any reason whatsoever or any failure of any dedicated permanent digital line connection used by MegaWeb or shortage of labour, transportation, fuel, power or plant, machinery, equipment or material. | | 10.5 | MegaWeb shall not be liable for defamation, slander, or infringement of copyright arising from or in connection with the provision of the services to the subscriber, nor for infringement of patents arising from the combination or use of the facilities of MegaWeb with apparatus and systems of subscriber, nor for any loss or damage arising out of or in connection with an act or omission of subscriber in connection with the services or facilities provided by MegaWeb to the subscriber and the subscriber hereby indemnifies MegaWeb against any such liability and shall protect and defend MegaWeb from any suits or claims alleging such liability and shall pay all expenses and satisfy all judgements which may be incurred by or rendered against MegaWeb in connection therewith. |
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| | 11. Documentation | | Any specifications, descriptive matter, drawings and other documents which may be furnished by MegaWeb to the subscriber from time to time 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 and shall remain the property of MegaWeb and shall be deemed to have been imparted by it in trust to the subscriber for the sole use of the subscriber. | | 11.1 | All copyright in such documents vests in MegaWeb. Such documents shall be returned to MegaWeb on demand. |
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| | 12. Breach | | 12.1 | | Subject to the provisions of clause 12.2 to the contrary, if either party hereto – | | 12.1.1 | either party hereto breaches any of the terms or conditions hereof or of any other agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the other party; | | 12.1.2 | commits any act of insolvency; | | 12.1.3 | endeavours to compromise generally with its creditors or does or cause anything to be done which may prejudice the other party’s right hereunder or at all; | | 12.1.4 | allows any judgement against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; | | 12.1.5 | is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered, |
| | 12.2 | | either party shall have the right, without prejudice to any other right which it may have against the other, to – | | 12.2.1 | treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexplored period of the agreement and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the subscriber until the subscriber has remedied the breach; or | | 12.2.2 | cancel this agreement; | | 12.2.3 | in either event without prejudice to the other party’s right to claim damages. |
| | 12.3 | 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. | | 12.4 | The subscriber shall be liable for all costs incurred by MegaWeb 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. |
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| | 13. No cession | | Either party 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, and in particular, without derogating from the generality of the a foregoing, the subscriber may not cede to any third party the right of use of the address assigned to it by MegaWeb unless agreed in writing which may not be unreasonably withheld. |
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| | 14. Liabilities of partners/signatories | | If the subscriber is a partnership, then each of the individual partners of the subscriber shall be bound as a partnership as well as in their individual capacities jointly and severally for all the subscriber’s obligations, notwithstanding that only one partner may have signed on behalf of the subscriber. | | 14.1 | The person signing on behalf of the subscriber warrants that he is duly authorised to represent and bind the subscriber to this agreement. |
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| | 15. Headings and interpretation | | The clause headings contained herein are for reference purposes only and shall not be used in the interpretation of this agreement. Words importing any one gender include the other two genders, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporated) and vice versa. |
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| | 16. Domcilium citandi et executandi | | For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and the serving of any process, MegaWeb and the subscriber respectively choose their domicilium citandi et executandi (“domicilium) at their respective addresses appearing on the face hereof. 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 days of the said change. 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 tenth day after the date of posting or day of delivery as the case may be. |
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| | 17. Magistrates’ court jurisdiction | | For the purpose of all or any proceedings hereunder the parties consent to the jurisdiction of the magistrates’ court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1944, provided, nevertheless, that any party shall have the right at its sole option and discretion to institute proceedings in any other competent court. |
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MegaWeb Internet Services