Access to the Hosting Service
You are responsible for making all arrangements necessary for you to have access to our Hosting Services. You are also responsible for ensuring that all persons who access our Services through your Internet connection are aware of these terms and conditions (and in particular our acceptable use policy
Hosting Service service levels.
We will use our reasonable endeavours to make our servers available to you as part of the Hosting Service you purchase for ninety-nine point nine nine (99.99) per cent of each calendar month. We do not warrant access to our servers will be uninterrupted or error free but we shall use reasonable endeavours to keep downtime to a minimum. We shall make all commercially reasonable efforts to provide you with advanced notification of all scheduled and emergency outages through the system status page http://www.webhostingstatus.com on our website and through our newsletter.
Service credits are not given for any form of downtime or service unavailability.
You will have no right, title or interest in any internet protocol address (“IP address”) allocated to you, and any IP address allocated to you is allocated as part of the Hosting Service you purchased and is not portable or otherwise transferable by you in any manner whatsoever.
If an IP address is re-numbered or re-allocated by us, we shall use our reasonable endeavours to avoid any disruption to you.
You agree that you shall have no right, title or interest to any IP address upon expiry or termination of the Services, and that the acquisition by you of a new IP address following expiry or termination of the Services shall be solely your responsibility.
Back-up of your material and our servers
It is your responsibility to maintain appropriate and up-to-date back-up copies of any data, information or other material you upload (or permit to be uploaded) onto our servers (“Material”) as part of your use of the Hosting Services. In the event of loss of or damage to your Material, you will not be given access to the server back-up we maintain pursuant to our archiving procedure.
We will follow our archiving procedures for the data stored on our servers. In the event of any loss or damage to our servers, your sole and exclusive remedy will be for us to use reasonable commercial efforts to restore the data on our servers (including your Material) from the latest back-up we maintained in accordance with our archiving procedure. We will not be responsible for any loss, destruction, alteration or disclosure of your Material caused by you or any third party.
Hosting Service usage limitations
Your limitations are:
The Hosting Service package you order includes the per calendar month bandwidth allowance applicable to that hosting package as this is set out on this website at the time of your order. The Hosting Service you have ordered will be automatically suspended if this monthly bandwidth allowance is exceeded. If this happens, you have to upgrade your Hosting Service package to one which includes a higher monthly bandwidth allowance, or wait for the Hosting Service to resume at the start of the following calendar month. You can monitor your monthly bandwidth usage in the eXtend control panel http://www.extendcp.co.uk
Unless the Hosting Service package you order includes a dedicated server, you will only be allowed to use a maximum of five (5) per cent of our server’s processing capacity when using the Hosting Service package you order. At our absolute discretion, we may allow your usage to exceed this limitation, and we will speak to you about your hosting requirements if your usage has, or may have, a detrimental effect on our other customers.
The Hosting Service package you order includes the number of mailboxes applicable to that hosting package as this is set out on our website at the time of your order. However, any mailboxes that have not been accessed for one hundred (100) clear days will be automatically deleted from our system.
When using the Services, you must comply with our Terms of Website Use and our Acceptable Use Policy and these are incorporated into the Contract by reference. Any conflict between our terms of website use and these terms and conditions, will be resolved in favour of these terms and conditions.
We shall be entitled to terminate the Contract, or suspend or terminate the provision of any individual Services, if you are in breach of our Terms of Website Use or our Acceptable Use Policy.
If a problem has arisen with regard to the Services or your registered account, you can access support through our support ticket system.
Our support team will help resolve any problems you have with the Services you are receiving. We will not provide programming support to you, but, as part of our Hosting Services, our servers are compatible with many programming languages.
The FREE .co.za domain name cannot be transferred away unless the hosting package is paid up to date. The reason being that payment of the renewal and registration fees are incorporated in the monthly hosting fees.
You need to host the domain with us for a period no less than 6 months before you can transfer it away.
If you default on your hosting payments and the hosy=ting is eventually suspended and subsequently deleted the FREE .co.za domain name will be deleted along with it.
Where the Contract includes our Domain Registration and Renewal Service:
We will endeavour to procure the registration of the domain name you request
We will not be liable in the event that the relevant domain name registry refuses to register the domain name you request, or subsequently suspends or revokes any registration for that domain name
We shall not act as your agent or on your behalf in any dealings with domain name registry
The registration of the domain name you request and its ongoing use is subject to the relevant domain name registry’s terms and conditions of use which you should obtain and consider.
You are responsible for ensuring that you are aware of the terms referred to in clause 17.1.4 so that you can comply with them
the domain name you request will only have been successfully registered when you appear as the registrant on the appropriate “whois” database of the top level domain name registrar
We shall have the absolute discretion to require you to select a replacement domain name to the one you have requested to be registered, and may suspend or terminate our performance of the Domain Registration and Renewal Service, if, in our opinion, there are reasonable grounds for us to believe that your current choice of name is, may or is likely to be in bad faith, breach of the provisions of these terms and conditions or any legal or regulatory requirement
You confirm and warrant that you are the owner of any trade mark in any domain name (or have the authority of the owner of any trade mark to use such name) that you have requested be registered.
You confirm and warrant that you are the legal owner of any domain name (or have the authority of the legal owner to use such domain name) supplied by you, or otherwise authorised by you, for use as a domain name in connection with any website in relation to which the Hosting Service supplied to you is used.
Once the domain name has been successfully registered, it will need to be renewed periodically to ensure you retain your registration of it. We will send you renewal notices thirty (30) days and seven (7) days before the renewal date of your registered domain name. These notices will be sent to the email address then registered against your account. You hereby authorise us to automatically renew the domain name for you unless you have cancelled the Domain Registration and Renewal Service in accordance with clause 20.1.1. The price for the renewal will be as set out in the renewals page of the customer administration area and will be charged against one of the payment methods then registered against your account.
You acknowledge and agree that we may place a number of locks on any domain registered with us either at the time of registration or at any time thereafter and without further notice to you. The locks that we may place on a domain include ‘clientDeleteProhibited’, ‘clientTransferProhibited’ and ‘clientUpdateProhibited’.
Intellectual property rights
You, or your licensor, retain all intellectual property rights in your Material, and you grant to us a worldwide, non-exclusive, royalty free licence to use, store and maintain your Material on our servers and publish your Material on the Internet for the purpose of providing the Hosting Service to you. You warrant that your Material does not infringe the intellectual property rights of any third party and you have the authority to grant the licence in this clause to us. We may make such copies as may be necessary to perform our obligations, including making back-up copies of your Material.
You will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services or of any claim or action that your Material infringes, or allegedly infringes, the intellectual property rights of a third party.
If you download software we own from our website, we grant you a non-exclusive, non-transferable royalty free licence to use that software for the purpose set out on our website in relation to that software. Such licence will automatically terminate when we stop providing the Hosting Services to you.
Any third party software that you download from our website shall be licensed to you on the standard software licence terms of the owner of the intellectual property rights in that third party software as those licence terms are notified to you at the time you download such software.
We retain all intellectual property rights in the Hosting Services (other than in your Material) and our software referred to in clause 18.3. Accordingly, you must not decompile, disassemble or reverse engineer the Hosting Services or our software.
We will defend you against any claim that the Hosting Services (but not materials stored or maintained on our servers by third parties) infringe any South African intellectual property rights of a third party (other than infringements referred to in clause 18.2), and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
In the defence or settlement of the claim, we may obtain for you the right to continue using the Hosting Services, replace or modify the Hosting Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract with you without liability to you (in which case we will refund to you the price you have paid on a pro-rata basis). We will have no liability to defend or indemnify you if the alleged infringement is based on:
The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for the infringement of any third party’s intellectual property rights by the Hosting Services.
We do not monitor and will not have any liability for your Material or any other communication you transmit, or allow to be transmitted, by virtue of the Hosting Services.
Due to the public nature of the Internet, we shall not be liable for the protection of the privacy of electronic mail or any other information transferred through the Internet or via any network provider and no guarantee or representation is given that the Hosting Services will be free from hackers or unauthorised users. You shall be liable for the content of any emails transmitted by virtue of the Hosting Services, for any material you upload to, or allow to be uploaded to, our servers and for ensuring compliance at all times with all relevant legislation (including, but not limited to the Data Protection Act 1998 and all other privacy laws, regulations and guidance notes made or issued thereunder).
All conditions, terms, representations and warranties that are not expressly set out in these terms and conditions (or the documents referred to in them) are hereby expressly excluded.
We do not exclude or limit in any way our liability:
We will not be responsible for the following types of losses (in each case whether direct, indirect or consequential) and whether they are caused by our negligence or otherwise:
Subject to clause 19.4 and clause 19.5, our maximum aggregate liability under or in connection with the performance or contemplated performance of the Contract, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed one hundred and ten (110) per cent of the price you have paid to us for the Services during the twelve (12) months preceding the event giving rise to the liability in question. Accordingly, you are advised to acquire business interruption insurance, or other appropriate insurance, to protect you and your business in the event of interruption of the Services (in particular the Hosting Service).
Where you buy any product or service from a third party seller through following a link on our website to such third party’s website, the seller’s individual liability will be set out in the seller’s terms and conditions. You should consult such terms and conditions.
Duration of the Services and cancellation
That part of the Contract relating to our Domain Registration and Renewal Service will commence on the date we send you our Acceptance Confirmation. It will continue until:
If we terminate the Domain Registration and Renewal Service we will refund the price you have paid for the Domain Registration and Renewal Service to the credit card, debit card or other account you used to make the payment.
That part of the Contract relating to Services other than our Domain Registration and Renewal Service will also commence on the date we send you our Acceptance Confirmation. Unless such Services are terminated as provided in this clause they shall continue for the minimum period of time that applies to the Service you have purchased (as these are set out on our website and subsequently confirmed in the Acceptance Confirmation) (“Minimum Term”). After expiry of the Minimum Term, they will continue on a month to month basis until terminated:
As part of our cancellation process, we will respond to you through our support ticket system. You must re-confirm your cancellation request via our support ticket system or we will continue to supply the relevant Services and your cancellation will be ineffective. You cannot cancel any of your Services by letter, email or telephone. You will not receive any refund of the price you have paid for the Services you have cancelled
The monthly price for Services we supply under Contracts that continue on a month to month basis under clause 20.3 shall be charged monthly in advance directly to a credit card, debit card or other payment method registered against your account. Such payment will be taken on the same date of the month as on which the Services had originally commenced (“Payment Date”) unless or until you cancel the Services in accordance with clause 20.3.1. We will not provide you with a refund for a cancellation that is part-way through a billing period. Where the Payment Date does not recur in a particular month (e.g., 31 January, but there is no 31 February), you will be charged on the closest preceding date to the Payment Date (e.g., 28 February) for that month
Without prejudice to any other right to terminate or suspend the Services we may have under these terms and conditions, our Terms of Website Use or our Acceptable Use Policy we may terminate the Contract at any time by giving you thirty (30) days advance notice by emailing you at the email address registered against your account. If we cancel the Services, we will refund to you the price you have paid for the Services on a pro-rata basis for the unexpired Minimum Term
Notwithstanding anything to the contrary in these terms and conditions, if you are in breach of an obligation of these terms and conditions we may terminate the Contract by seven (7) days notice to you and/or, at our absolute discretion, terminate or suspend without notice any individual Services we provide to you from time to time.
Expiry or termination of the Contract shall be without prejudice to any rights and liability of either of us arising in any way under that Contract as at the date of expiry or termination.
Deletion of your data
If you cancel your Services, any data we hold or host in relation to the Services you have cancelled will be immediately and permanently deleted from our system. Accordingly, you are strongly advised to make appropriate copies of such data before you cancel your Services.
If you have purchased a Hosting Service aimed at resellers, your package will allow multiple accounts to be set up for your customers. If you disable any of these accounts and they remain disabled for fifty (50) clear days, we will immediately and permanently delete those disabled accounts (and all the data hosted in relation to them) from our system.
Additional terms and conditions may apply for our offers. If so, you will be advised of them at the relevant point.
Applicable laws require that some of the information or communications we send to you should be in writing. When using our website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given though our support ticket system. We may give notice to you at either the then current e-mail or postal address registered against your account with us.
Third party rights and transfer of rights and obligations
Neither you nor we intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The Contract is binding on you and us and on our respective successors and assigns.
You may not transfer, assign, charge or otherwise dispose of the Contract, or any of your rights or obligations arising under it, without our prior written consent.
We may transfer, assign, charge, sub-contract or otherwise dispose of the Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
Events outside our control
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (“Force Majeure Event”).
A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
Our performance under the Contract will be deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
If we fail, at any time during the Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
A waiver by us of any default shall not constitute a waiver of any subsequent default.
No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 24.
If any of these terms and conditions or any provisions of the Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
These terms and conditions and any document expressly referred to in them represent the entire agreement between us both in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
We each acknowledge that, in entering into the Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these terms and conditions.
Our right to vary these terms and conditions
We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
You will be subject to the policies and terms and conditions in force at the time that you order services from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Acceptance Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven (7) working days of receipt by you of the Acceptance Confirmation).
No variation of these terms and conditions shall be valid unless it is in writing and signed on our behalf.
Law and jurisdiction
Contracts for the purchase of Services through our site will be governed by South African. Any dispute arising from, or related to, such the Contract shall be subject to the exclusive jurisdiction of the courts of South Africa. English is the language offered for the conclusion of the contract between us both.