TABLE OF CONTENTS
- Binding Contract
- CPA Application
- Incorporation by Reference
- Interpreting these Service Terms
- Commencement and Duration
- Monthly Services
- On Demand Services
- Effects of Termination
- The Services
- Outsourced Services
- 3rd Party Services
- Changes to the Services
- Service Levels
- Intellectual Property
- Service Use
- Content Use
- Passwords and Account Security
- Prohibition on Interference and Solicitation
- Liability, Disclaimers and Limitation of Liability
- Maintenance and Repair
- Rights Infringements
- Governing Law and Legislation
- Interruption Event
- Assignment by the User
- By CloudAfrica
- Domicilium and Notices
- The Customer
- ECTA Disclosures
- Interpretation Guide
These Service Terms are a contract between users and CloudAfrica and govern users’ use of this Services.
In the event that a user is the Customer’s representative and the user is not, in fact, authorized to bind the Customer to these Service Terms, the user agrees that the user shall be jointly and severally liable to CloudAfrica, together with the Customer, for any amounts due to CloudAfrica in terms of these Service Terms or otherwise as a consequence of using the Service in the event the Customer refuses and/or fails to pay any amounts due to CloudAfrica.
The Customer and the user, where applicable, agrees that it shall not not use the Services unless it agrees to abide by the terms and conditions set out in these Service Terms.
The Customer and the user, where applicable, signifies its agreement to these Service Terms and to regards itself as bound by them if it does either of the following:
- Click to accept or agree to these Service Terms where CloudAfrica presents an option to do so, either on the Website or otherwise; or
- By using the Services in any way, in which case the Customer understands and agree that CloudAfrica will treat the Customer’s and/or user’s Services use as acceptance of these Service Terms from the moment the Customer and/or the user first begins to use the Service.
This is version 1.5 of these Service Terms and their effective date is 2013-07-05.
A transaction (as defined in the CPA) between users and, where applicable, the Customer and CloudAfrica may or may not fall under the provisions of the CPA depending upon whether certain certain of the Customer’s threshold values are below a certain value at the time the transaction is entered into.
The threshold values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
CloudAfrica’s duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and CloudAfrica will act upon the information given to it by the Customer in this regard. Consequently:
- The Customer warrants that any statement made to CloudAfrica in respect of its threshold values is accurate.
- If the Customer claims that all the threshold values are below the relevant value, or otherwise that the CPA applies to the transaction in question, CloudAfrica may at its instance require the Customer to provide it with financial statements as proof thereof.
- If the Customer misstates the threshold values in such a way that CloudAfrica considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by CloudAfrica resulting from such misstatement.
These Service Terms incorporate the Acceptable Use Policy by reference. In the event a conflict arises between the Acceptable Use Policy and these Service Terms, these Service Terms shall apply only to the extent of such conflict with the provisions of these Service Terms.
To the extent, a conflict or inconsistency arises between the Service Specifications, as amended from time to time, and the main body of these Service Terms in respect of the Services’ description, the Service Specifications’ provisions shall prevail to the extent of the inconsistency.
CloudAfrica reserves the right, in its sole discretion, to, and the Customer agrees that CloudAfrica may, amend these Service Terms at any time, in any way, and from time to time. CloudAfrica will publish details of amendments to these Service Terms on the Website. These amendments shall automatically come into effect on the date specified in the notice of the proposed amendments.
The Customer agrees that publication of a notice of the proposed amendments to this Service Terms shall constitute adequate notice to the Customer.
It is the Customer’s and, where applicable, the user’s responsibility to review these Service Terms regularly and to ensure that the Customer and, where applicable, the user agrees with any amendments to these Service Terms. The Customer and, where applicable, the user further agrees that it will no longer access the Services if it does not agree with such amendments.
These Service Terms contain a number of words and phrases which have specific meanings and most of which are capitalized. The Glossary, below, contains many of these words and phrases (others are set out in these Service Terms’ body and are designated by terms in quotation marks).
CloudAfrica also applies certain rules when interpreting these Service Terms and the Interpretation Guide, which sets out these rules, is below.
These Service Terms shall commence on the Commencement Date and shall, where appropriate given the nature of the Services requested and the basis on which they are made available to the Customer – automatically renew on a month to month basis, or endure for so long as the Services are required, or endure until the later of the applicable duration where the Customer selects a combination of Services that operate both on a month to month basis and on-demand. ￼￼￼
In the event the Customer elects to make use of the Services on an ongoing basis, these Service Terms shall automatically renew on a month to month basis.
Either Party may terminate these Service Terms on one calendar month’s written notice to the other Party in the event these Service Terms automatically renews on a month to month basis.
In the event the Customer requests On-Demand Services, these Service Terms shall terminate on the date on which CloudAfrica ceases to render the last of the Services to the Customer.
In the event these Service Terms are terminated for any reason whatsoever, the following clauses shall survive termination: - Fees; - Confidentiality; - Liability; - Breach; - Arbitration; - Governing Law and Jurisdiction; and - Domicilium and Notices.
CloudAfrica shall render the Services to the Customer for the duration of and subject to these Service Terms.
As at the commencement of these Service Terms, certain of the Services set out in the Service Specifications and which are to be provided by CloudAfrica to the Customer in terms of these Service Terms (the “Outsourced Services”) may be outsourced by CloudAfrica to 3rd Party service providers (the “Service Provider/s”);
CloudAfrica shall be entitled at any time and from time to time to change the identity of any Service Provider and/or to sub-contract any of the Outsourced Services to a new Service Provider and/or to delegate to one or more existing or new Service Provider all or any part of its obligations to provide any particular Service to the Customer in terms of these Service Terms.
The Customer acknowledges that the Service Providers’ terms and conditions of service shall govern the provision of the outsourced services as between CloudAfrica and such Service Provider. The Parties further record and agree that CloudAfrica shall, at any time during the term of these Service Terms, be entitled to appoint and/or terminate the services of such Service Providers provided that such appointment and/or termination of Service Providers shall not be materially detrimental to CloudAfrica’s performance of its obligations and/or compromise the service levels agreed to in terms of these Service Terms.
The Services may incorporate the use of 3rd Party websites and/or services.
The Customer acknowledges that CloudAfrica does not render legal services and that the Customer shall remain solely responsible for familiarising itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those 3rd Party websites and/or services.
CloudAfrica may change, discontinue, or deprecate any of the Services as well as change, remove or discontinue the Services’ features and/or functionality on written notice to the Customer by the publication of amended Service Specifications which shall detail the – - manner in which the Services shall be changed; and - the date on which the amended Services shall be implemented or become effective.
Amendments to or replacements of the Services may, at CloudAfrica’s discretion, require consequential changes to CloudAfrica’s fees payable for and delivery time frames applicable to the services described in the amended or replacement Service Specifications.
The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in these Service Terms shall be construed as obliging CloudAfrica to render all such Services as a single, indivisible service.
CloudAfrica shall render the Services – - as detailed in the Service Specifications, and subject to CloudAfrica’s qualifying criteria, - subject to the Service Level Undertakings.
The Customer agrees that CloudAfrica may change, remove or discontinue the Service Level Undertakings on reasonable, written notice to the Customer. Reasonableness shall be determined by CloudAfrica in its sole discretion.
These Service Terms do not purport to, and should not be interpreted to, vary or exclude licenses or use restrictions applicable to 3rd Party Intellectual Property. To the extent a conflict arises between a license or similar use restrictions applicable to 3rd Party Intellectual Property offered through or in conjunction with the Services, the more restrictive license or use restrictions shall apply.
Recognizing that CloudAfrica may not be legally empowered to assign the Intellectual Property Rights in and to the Services to the Customer, CloudAfrica, in the absence of an existing license or where necessary, grants users a Use License to enable users to meaningfully use the Services.
￼In the event the Customer wishes to take advantage of products or services CloudAfrica does not ordinarily support or provide, the Customer shall detail its requirements in writing and submit those requirements to CloudAfrica for consideration and, in the event that CloudAfrica agrees (in its sole discretion) to provide such additional products or services, such products or services shall be described in a Service Specifications developed to cater for those specific products or services.
CloudAfrica grants users a Content License in respect of CloudAfrica’s Intellectual Property which forms part of the Services.
To the extent that any copying, reproduction, distribution, transmission, display, broadcasting, or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names, and all copyright, ownership, proprietary, and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed.
Users are further required, as a condition of this Content License, to clearly and expressly attribute CloudAfrica as the Content’s source.
Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event CloudAfrica revokes the Content License, users may no longer use CloudAfrica’s Content.
Users are required to register on the Website in order to make use of the Services. Once registered users, will be able to log into their accounts using their chosen usernames and passwords.
Users may not impersonate another person and users are be required to use their real identities as identifiers associated with their account.
CloudAfrica collects users’ personal information, as required by the Website registration form in order to successfully complete the registration process. CloudAfrica processes personal information in terms of the Data Protection Policy.
Users warrant that the personal information they submit to CloudAfrica is accurate, current, and complete and further that the users have given specific, informed, and voluntary consent to CloudAfrica to process their personal information for the purpose of rendering the Services and as described in the Data Protection Policy. Users agree that they will be denied use of the Services should they breach this warranty or subsequently be found to have breached this warranty.
CloudAfrica may take steps to verify users’ personal information once users have completed the requisite registration process including, but not limited to, means such as email verification. The Customer and users agree to this verification process and irrevocably consent to CloudAfrica gaining access to relevant information held by third parties which may be required to reasonably complete the verification process. Users ￼acknowledge and agree that their access to the Services may be limited until such time as this verification process has been successfully completed.
Should users not agree to the verification process as contemplated above or withhold their consent, users’ access to the Services, generally, may be suspended or terminated.
Users waive any claims they may have against CloudAfrica or CloudAfrica’s Associates arising out of CloudAfrica’s denial of access to users to the Services arising out of any breach by the users of these Service Terms or otherwise of their obligations to CloudAfrica.
Users agree that the security of their Services user account is solely their responsibility. Users further agree that – - Users are responsible for maintaining and promptly updating personal information submitted to CloudAfrica and any other information users furnish CloudAfrica with, thereby keeping it accurate, current and complete; if users believe their Services user account security has been compromised in any way, users will notify CloudAfrica immediately; - Users shall be held fully responsible for any misuse or compromise of users’ Service account which CloudAfrica is not adequately notified about; and - CloudAfrica reserves the right to suspend users’ use of the Services pending an investigation and resolution if any security violations are believed to have occurred in association with users’ Services user account. - CloudAfrica’s Associates may be required to access users’ accounts in order to provide technical support. CloudAfrica will notify the user concerned when this takes place, where reasonably possible.
The Customer shall, as consideration for the Services to be rendered by CloudAfrica in terms of these Service Terms, effect payment of the Fees.
Fees shall be paid to CloudAfrica by the Customer on the terms and conditions set out in the Service Specifications, without deduction or set-off, and on-demand.
Payment shall be by debit order using the details supplied on the Website or by a credit card payment. Services and usage charges shall be invoiced in advance.
Fees may be payable upfront, monthly or subsequent to Services use, depending on whether the Services are Monthly Services or On-Demand Services. Fees are payable on or before midnight on the last day of each calendar month.
In the event of the Customer failing to timeously effect payment of any amount due to CloudAfrica in terms of these Service Terms, all such amounts shall bear interest at a rate equal to 2% above the prime overdraft rate as charged to CloudAfrica by its bankers from time to time. CloudAfrica shall, furthermore, be entitled to suspend the provision of any or all of the Services, at CloudAfrica’s sole discretion, in terms of these Service Terms for any period in which any payment remains outstanding.
Without prejudice to any other rights accorded to CloudAfrica in terms of these Service Terms, if the Customer fails to pay any amount on the due date or breaches any of the other terms of these Service Terms, CloudAfrica shall be entitled upon written notice to the Customer, without any liability or obligation whatsoever, to discontinue the services to the Customer until such non-payment or breach is remedied to CloudAfrica’s satisfaction.
The Customer agrees that it shall pay all CloudAfrica’s expenses in recovering any amounts the Customer owes CloudAfrica, including legal costs on the attorney and own client scale, collection charges and tracing fees, and VAT thereon.
Any specifications, descriptive matter, drawings, and any other documents which may be furnished by CloudAfrica to the Customer from time to time – - do not form part of these Service Terms and may not be relied upon unless they are agreed in writing by both Parties these Service Terms to form part of these Service Terms; - shall remain CloudAfrica’s property and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer. All copyright in such documents vests in CloudAfrica. Such documents and all copies made thereof shall be returned to CloudAfrica on demand.
The Receiving Party shall not, without the prior written consent of the Disclosing Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Disclosing Party) disclose Confidential Information to any person, and/or make use of Confidential Information for any purposes other than in connection with the rendering of the Services.
The Receiving Party may disclose Confidential Information to its officers, employees, and subcontractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
The Receiving Party shall inform any officer, employee or subcontractor, to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any 3rd Party (other than those persons to whom it has already been disclosed in accordance with the terms of these Service Terms), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this Confidentiality clause, by the person to whom it is disclosed.
Notwithstanding the provisions of this Confidentiality clause, either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding – - the details of its financial performance, its financial performance forecast and the Party’s strategic planning; and - the fact that the Parties have contracted with one other and may make reasonable use of the other Party’s name and branding for promotional purposes subject to the other Party’s reasonable requirements regarding the use of its branding, from time to time.
Save as expressly set out in these Service Terms, CloudAfrica does not make any representation or give any warranties whatsoever in respect of the Services.
Neither Party shall knowingly, for the duration of these Service Terms and for a period of 1 year after these Service Terms terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative and/or agent of the other party who was involved in the implementation or execution of these Service Terms to terminate his employment with that Party and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the other Party.
Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
To the fullest extent permissible by law, CloudAfrica disclaims all warranties of any kind, whether express or implied in respect of the Services, and the Customer utilizes the Services at its own risk.
The Customer agrees that neither CloudAfrica nor the CloudAfrica’s Associates shall be liable for any Losses which the Customer may sustain however arising and whatever the cause, in particular, pursuant to any user’s, 3rd Party’s and/or the Customer’s use of, access to and/or interference with the Services.
The Customer irrevocably waives any claims it may have against CloudAfrica arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or these Service Terms more than 6 months after the cause of action relating to such claim or legal action arose.
CloudAfrica’s liability to the Customer pursuant to these Service Terms shall furthermore be limited to the total amount of the fees charged and paid by the Customer in the month in which the liability arose.
3rd Parties, users and/or, where appropriate, the Customer hereby indemnifies CloudAfrica and CloudAfrica’s Associates from any Losses, which may arise as a result of the 3rd Party’s, users’ or the Customer’s unlawful conduct, wilful misconduct and/or gross negligence.
￼The Customer acknowledges that from time to time the Services may be suspended for maintenance, repair, and improvements. CloudAfrica agrees, wherever reasonably possible, to give users twenty-four (24) hours’ notice of suspension of the Service for any of the purposes aforesaid.
Save as set out elsewhere in these Service Terms or the Service Level Undertakings, CloudAfrica shall not be liable for any losses which may be sustained as a result of the suspension of the Services save for the Customer’s sole claim against CloudAfrica for any credit in respect of its monthly charges to which it may be entitled in accordance with the provisions of the Service Level Undertakings, where applicable.
If any person is of the view that his, her or its rights have been infringed through unlawful Services use by users or 3rd Parties, that person may address a complaint to CloudAfrica which satisfies the following requirements and/or sets out the following information: - the full names and address of the complainant; - the written or electronic signature of the complainant; - identification of the right that has allegedly been infringed; - identification of the material or activity that is claimed to be the subject of unlawful activity; - the remedial action required to be taken by CloudAfrica in respect of the complaint; - telephonic and electronic contact details, if any, of the complainant; - a statement that the complainant is acting in good faith; - a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.
Notifications must be addressed to:
Email: [email protected]
CloudAfrica will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action where necessary. Such action may include, but is not limited to, removing the offending Content from the Service and/or taking appropriate steps against the offending user or Customer, where appropriate.
Subject to any other provision of these Service Terms providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these Service Terms and fail to remedy such breach within fourteen days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to – - cancel these Service Terms, provided the breach in question is a material breach going to the root of these Service Terms; or ￼￼￼￼￼￼￼￼￼ ￼ - claim specific performance of all of the Offending Party’s obligations whether or not due for performance, - in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Service Terms in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Service Terms shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Any dispute arising from or in connection with these Service Terms shall be finally resolved in accordance with the expedited rules of and by an arbitrator appointed by AFSA.
The arbitration shall be held subject to the provisions of this clause: - in Johannesburg; - it being the intention that if possible it shall be held and concluded within 15 days after it has been demanded.
If AFSA ceases to exist or declines to accept the hearing of the dispute, the dispute shall be submitted to and decided by arbitration in accordance with rules of AFSA in force immediately before AFSA ceased to exist or declined to accept the hearing of the dispute (as the case may be).
Nothing in these Service Terms shall prevent or prohibit any Party from applying to the appropriate court for interim or urgent relief.
This clause is severable from the rest of these Service Terms and shall therefore remain of full force and effect even if These Service Terms are terminated or canceled for any reason at any time.
These Service Terms shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the South Gauteng High Court, Johannesburg.
The Customer consents to the jurisdiction of the Regional Court and the Magistrates Court in respect of any claim arising out of or pertaining to these Service Terms or the services even though any claim the Customer may have against the Customer exceeds the monetary jurisdiction of the Regional Court or the Magistrates Court, as the case may be.
Users acknowledge and, where appropriate, the Customer acknowledges that from time to time there may be a suspension of the Service from causes beyond the control of CloudAfrica (for example, due to force majeure, the conduct of 3rd Parties, or otherwise).
￼￼￼￼ ￼CloudAfrica shall be relieved of its obligations in terms of these Service Terms during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Customer may suffer as a result.
CloudAfrica shall notify the Customer of an Interruption Event in writing as soon as it becomes reasonably aware of the Interruption Event as such.
In the event that an Interruption Event exceeds – - 5 consecutive days and in the event that alternative services and/or facilities cannot be provided by CloudAfrica or its nominee, the Parties agree to meet and negotiate the suspension, termination, or restructuring of these Service Terms; or - 1 calendar months and in the event that alternative services and/or facilities cannot be provided by CloudAfrica or its nominee, either Party may terminate these Service Terms and shall only remain liable for performance under these Service Terms which fell due immediately prior to the Interruption Event.
Users or, where appropriate, the Customer shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Service Terms except with CloudAfrica’s prior written consent, which consent will not be unreasonably withheld, provided that the Customer shall be entitled, without CloudAfrica’s prior written consent, to cede, delegate or otherwise transfer all or any of its rights, interest or obligations under and/or in terms of these Service Terms to any company which shall be the Customer’s subsidiary or which shall be a subsidiary of the Customer’s holding company (“the Cessionary”), it being recorded that, prior to such cession, delegation, assignment and/or transfer, the Customer shall: - procure that the Cessionary shall bind itself as a Party to these Service Terms, in the Customer’s place and stead; - the Customer shall bind itself in CloudAfrica’s favour as a surety for and co-principal debtor together with the Cessionary in respect of the due and punctual performance by the Cessionary of all of its obligations arising in terms of and/or in connection with these Service Terms; and - in the event that the Cessionary shall cease being the Customer’s subsidiary and/or a subsidiary of the Customer’s holding company, the Cessionary shall, prior to the happening of such event, cede and delegate and/or transfer all of its rights, interests or obligations in terms of these Service Terms to another company, mutatis mutandis on the same basis recorded in this clause, which shall then be the Customer’s subsidiary or a subsidiary of the Customer’s holding company.
CloudAfrica shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Service Terms subject to CloudAfrica giving the Customer written notice to that effect to the Customer. ￼￼￼￼￼
If any clause or term of these Service Terms should be invalid, unenforceable or illegal, then the Parties agree that the remaining terms and provisions of these Service Terms shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these Service Terms.
The Customer chooses its physical address; postal address; facsimile number and email address supplied to CloudAfrica when registering to use the Services as its Domicilium citandi et executandi (“Domicilium”) for all purposes arising from or pursuant to these Service Terms.
CloudAfrica chooses its Johannesburg address and contact details detailed at Contact Us for all-purpose of receiving notices issued in terms of or pursuant to these Service Terms.
Any Party hereto shall be entitled to change its Domicilium from time to time, provided that any new Domicilium selected by it shall be an address other than a post box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s Domicilium for the time being.
A notice sent by one Party to another Party shall be deemed to be received: - on the same day if delivered by hand; - on the same day, if transmitted electronically with receipt received confirming completion of transmission; on the same day of transmission if sent by telefax with receipt received confirming completion of transmission, provided that the original of the notice shall, after such transmission, be sent by prepaid courier services to the Party to whom such notice shall have been given; on the third day after despatch, if sent by prepaid courier.
Notwithstanding anything to the contrary contained in this Domicilium and Notices clause a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen Domicilium citandi et executandi.
CloudAfrica chooses the addresses and other contact details specified in our ECTA Disclosures section, below, for all communication purposes under these Terms, whether in respect of court process, notices or other documents or communications of whatsoever nature.
￼￼￼￼￼Access to the Content on or through the Services and the Website itself are classified as “electronic transactions” in terms of the ECTA and therefore you have the rights detailed in Chapter VII of the ECTA and we have the duty to disclose the following information:
- Our full name and legal status: CloudAfrica Hosting (Proprietary) Limited (Registration No.: 2011/146332/07)
- Street address: 49 Moray Drive, Bryanston 2191, Johannesburg, Gauteng
- Postal address: PO Box 70256, Bryanston, Gauteng, 2191
- The physical address for receipt of legal service: 49 Moray Drive, Bryanston 2191, Johannesburg, Gauteng
- Main business: 49 Moray Drive, Bryanston 2191, Johannesburg, Gauteng
- Website address: https://cloudafrica.net
- Official email address:[email protected]
- Membership of self-regulatory or accreditation bodies: Internet Service Providers’ Association
- Codes of conduct to which we subscribe: Internet Service Providers’ Association’s Code of Conduct
- Management: - Costs associated with the access to and use of the Website: Costs are detailed in the Service Specifications, alternatively on the Website.
- Dispute resolution: Arbitration
- Cooling off period: Not applicable
- Complaints process: Not applicable
These Service Terms, as read with the documents referenced in these Service Terms, constitute the sole record of the agreement between the Parties in regard to the subject matter thereof.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Service Terms.
No addition to, variation or consensual cancellation of these Service Terms, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
￼No data message (as defined in ECTA), including an email, SMS, and recorded voice message, sent by the Customer to CloudAfrica shall amend these Service Terms or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Service Terms or the Parties’ rights and duties in any material respect.
No indulgence which any of the Parties (“the Grantor”) may grant to any other or others of them (“the Grantee(s)”) shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions, and import of these Service Terms.
In these Service Terms, headings are for convenience and are not intended to be used to interpret the Service Terms.
If the Service Terms refers to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Service Terms will also be applicable to and binding on that party’s liquidator or trustee, as the case may be.
Unless these Service Terms indicates to the contrary, any references to any gender include the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Service Terms, shall not apply.
Where in these Service Terms provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Service Terms or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorized representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
Where these Service Terms specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday, or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty ￼minutes) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
All annexures, addenda, and amendments to these Service Terms form an integral part of these Service Terms and, therefore, CloudAfrica’s contract with the Customer.
The words and phrases in the Glossary and, where appropriate, elsewhere in these Service Terms bear the meanings assigned to them and related expressions bear corresponding meanings.
“3rd Party” means a person other than the Parties;
“AFSA” means the Arbitration Foundation of South Africa;
“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
“Commencement Date” means the date on which CloudAfrica commences rendering the Services to the Customer;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what the Customer or users may have access to as part of, or through their Service use;
“Content License“ means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferable and non-exclusive license to use CloudAfrica’s Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Service Terms and does not extend to scraping, spidering, crawling or other technology or software used to access data without CloudAfrica’s express written consent;
“Customer” means the person contracting with CloudAfrica to use the Services subject to these Service Terms; “Customer Details” means the information and details provided by the Customer as per the online sign-up form;
“CloudAfrica” means CloudAfrica Hosting (Proprietary) Limited, a company duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 2011/146332/07;
“Confidential Information” means any information of any nature, tangible or intangible, oral or in writing and in any format or medium, which by its nature or content is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party or which is disclosed in confidence, and which the Disclosing Party or any person acting on behalf of the Disclosing Party may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. Without limitation, the Confidential Information of the Disclosing Party shall include the following even if it is not marked as being “confidential”, ￼“restricted” or “proprietary” (or any similar designation) – - information relating to the Disclosing Party’s business activities, business relationships, products, services, processes, data, and Staff, including Service Terms to which the Disclosing Party is a party; - the Disclosing Party’s technical, scientific, commercial, financial and market information, methodologies, formulae and trade secrets; - the Disclosing Party’s architectural information, demonstrations, plans, designs, drawings, processes, process maps, functional and technical requirements and specifications, and the data relating thereto; - Intellectual Property that is proprietary to the Disclosing Party or that is proprietary to a 3rd Party, including but not limited to 3rd Party Products and information relating to the Customers of the Disclosing Party; and - where the Disclosing Party is the Customer, demographic and other data relating to any Staff or potential Staff of the Customer, which information may be disclosed to the Vendor by the Customer in order for the Vendor to perform the Services for the Customer in terms of these Service Terms. - Confidential Information excludes information which –
- is lawfully in the public domain at the time of disclosure thereof to the Receiving Party; or subsequently becomes lawfully part of the public domain by publication or otherwise; or
- is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or
- is disclosed pursuant to a requirement or request by operation of law, regulation, or court order but then only to the extent required (provided that the onus shall at all times rest on the Receiving Party to establish that it has disclosed the information within these parameters),
- The determination of whether information or data as Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;
“CPA” means the Consumer Protection Act No. 68 of 2008, as amended from time to time; “Data Protection Policy” means CloudAfrica’s data protection policy framework located at Data Protection Policy;
“Disclosing Party” means the Party disclosing Confidential Information to the Receiving Party;
“ECTA” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;
“Fees” means amounts payable by the Customer for the Services in the amounts and calculated on the basis detailed in the Service Specifications, Quotation or invoices submitted to the Customer by CloudAfrica;
“Initial Period” means these Service Terms’ initial operative time period specified in the Service Specifications;
“Intellectual Property” means any know-how (not in the public domain), the invention (whether or not patented), design, trademark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;
“Intellectual Property Rights” means rights in Intellectual Property which may include, but is not limited to, Intellectual Property – - created, invented and/or developed by CloudAfrica at the Customer’s specific instance and request of pursuant to these Service Terms; and - developed independently and/or owned by Customer; and/or - developed independently and/or owned by CloudAfrica; and/or - developed and owned by any 3rd Party;
“Interruption Event” means a strike, lock-out, fire, explosion, floods, riot, war, accident, an act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Service Terms by reason of an Interruption Event;
“Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest, and penalties);
“Parties” means CloudAfrica and the Customer;
“Personal information” means the personal information as defined in the Promotion of Access to Information Act, 2 of 2000;
“Quotation” means the document within the Project Documents setting out CloudAfrica’s fees and charges associated with the Services;
“Receiving Party” means the Party directly or indirectly receiving Confidential Information from the Disclosing Party;
“Renewal Period” means the period for which these Service Terms may be renewed beyond the Initial Period’s termination and as specified in the Service Specifications;
“Republic of South Africa” means the Republic of South Africa as constituted on the Signature Date;
“Scope Variation” means a material change in the Services’ scope described in a Service Specifications; “Services” means CloudAfrica’s services which are described in the Service Specifications and which are rendered in terms of these Service Terms and are either – - “Monthly Services” means Services which are rendered on a month to month basis; - “On-Demand Services” means usage-based Services which are rendered on-demand to the Customer;
“Service Specifications” means the descriptions of and specifications pertaining to the Services on the Website or in a similar document setting out descriptions, specifications, and/or details of the Services;
“Service Terms” means these terms and conditions, as amended from time to time;
“Service Level Undertakings” means the terms and conditions establishing CloudAfrica’s minimum service level undertakings in respect of the Services and located at Service Level Agreements;
“South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to the Constitution of the Republic of South Africa, the ECT, CPA or any other legislative enactment or regulation in force from time to time applicable codes of conduct, as may be promulgated or amended from time to time;
“Use License” means a personal, non-transferable, and non-exclusive right and license to users to use the Service, provided that users do not (and do not allow any 3rd Party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in CloudAfrica’s Intellectual Property;
“user” means a person who is authorized by the Customer to make use of the Services the Customer has elected to make use of in terms of these Service Terms, alternatively, anyone who registers for and uses the Services;
“VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991;
“Website” means the CloudAfrica website located at http://cloudafrica.net or such other websites as may be associated with and controlled by CloudAfrica from time to time.
As may be associated with and controlled by CloudAfrica from time to time.
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