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Terms and Conditions
1. For the purposes of this Agreement
1. "AOS" means Advanced Online Systems Pty Ltd
2. “Charges” shall mean the fees payable in respect of the Service.
3. "Client" shall mean any party who makes use of the Service.
4. “Property” shall mean anything tangible or intangible to which its owner has legal title, including but not limited to hardware, software and documentation.
5. “Service” shall mean web/email/server hosting, internet access, provision of equipment, and any other service provided by AOS.
2. The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.
1. By completing the registration process, the Client is deemed to have entered into an Agreement with AOS as governed by the terms and conditions set out hereunder.
2. Registration shall have taken place once:
1. the Client, or the Client’s duly authorized agent, provides AOS with such information as requested by AOS in order to properly identify the Client for record and billing purposes, and
2. Agreement between AOS and the Client, or the Client’s duly authorized agent, is reached as to the specific Services, and their related Charges, which the Client wishes to obtain from AOS.
3. Unless otherwise agreed, the date of completion of registration shall also constitute the commencement of the Service and consequently billing.
4. Where the registration process is verbal, for example telephonic, AOS will endeavour to provide written confirmation thereof. However, it remains the Client’s responsibility to obtain such written confirmation and a lack thereof does not detract from the validity of the Agreement.
5. Use of the service shall be deemed as acceptance of the terms of this Agreement.
6. Any additional services that the Client may request after the initial registration process will be deemed part of the initial Agreement, unless otherwise stated by AOS.
7. Where AOS and the Client negotiate specific terms and conditions that differ or conflict with those hereunder, the negotiated terms and conditions will take precedence, provided they are formalized in writing.
3. THE SERVICE
1. AOS will provide the Client with Internet Access and/or other Services as agreed between AOS and the Client.
2. Service interruptions may occasionally occur, in which case AOS will attempt to restore the Service as soon as reasonably possible. Due to the numerous factors beyond the control of AOS, no guarantee in terms of Service availability or uptime is given or implied whatsoever.
3. AOS reserves the right to examine any data that the Client transmits and receives via the Service as well as any records, data or logs related to the Client, to ensure compliance with this Agreement or any applicable laws, regulations, policies or codes of conduct. Furthermore, AOS reserves the right to disclose the content of such data or to remove the offending data, if required to do so by a duly authorized entity.
4. The client acknowledges that neither the Internet nor the AOS infrastructure is inherently secure and that AOS cannot guarantee the security of any of the Client’s information. AOS is not liable for the protection or privacy of any information transferred through the Internet or any other network. Furthermore, as AOS exercises no control over the content of the information passing through the network, it makes no warranty as to its quality, accuracy or freedom from errors or malicious code.
5. Where, in the opinion of AOS, the Client is found to be monopolizing the resources available (bandwidth, CPU cycles, hard drive space, etc) to the detriment of other users or Services, AOS reserves the right to suspend the Client’s use of that Service immediately, without prior notice, and/or renegotiate the charges in accordance with the use.
6. AOS reserves the right to take whatever action it deems necessary, without prior notice to its Clients, to protect the integrity, security and reliability of its network and operations.
1. The Client shall pay all Charges related to the Service, in the amount and manner agreed to during the registration process and further described in this Agreement.
2. The Charges shall be payable by the Client to AOS as they become due.
3. Payment shall be made in such a manner as agreed to by AOS, for example, by debit order.
4. All charges are non-refundable, except at the sole discretion of AOS.
5. Monthly charges for flat-rate services are billed in advance of the payment period. Billing occurs between the 1st and 7th day of the month for which payment is due, while payment is due no later than the 15th day of the same month, unless otherwise agreed by AOS in writing.
6. Annual charges are billed in advance of the payment period, in the month prior to the anniversary of the account. Payment is due no later than the 15th day of the first month of the annual period unless otherwise agreed by AOS in writing.
7. Monthly charges for usage (such as excess web hosting traffic or ADSL usage) are billed monthly in arrears and are due no later than the 15th day of the month after the Charges were incurred.
8. In the event the Client fails to pay all or some of the charges, AOS shall be entitled to suspend or terminate the Service without notice, in whole or in part, from the date when payment was due.
9. Where payment by the Client is by means of debit order, the Client agrees that:
1. All such withdrawals from the Client’s bank account shall be treated as though they had been signed by the Client personally.
2. Should any of the debit order account details provided change over the course of time, it is the Client’s responsibility to inform AOS timeously in writing, and receive written confirmation in return.
3. Returned and/or refused debit orders will be subject to a R75.00 excluding vat (Seventy-five Rand) fee.
4. Any Charges accrued during a payment period in excess of the agreed debit order amount for that period, shall be automatically added to the debit order amount for the next debit order run.
10. The Client shall not be entitled to setoff the charges in respect of the Service, against any amount that AOS may owe the Client, without written consent from AOS.
11. Any outstanding charges shall be paid by the Client at the closure or termination of the Client’s account and the Client agrees that AOS will retain control of any hardware, software or domain names in its possession and/or associated with the account until all payments have been received.
12. AOS may change the amount of any Charge from time to time and will provide at least 30 (thirty) days advance notification to the client by email. Continued use of the Service after the effective date of a change will constitute acceptance of the change.
13. AOS reserves the right to engage the services of a collection agency in cases where the Client fails to comply with the payment terms in this Agreement, and/or to blacklist with any South African credit bureau agency such Client. AOS shall have no obligation to assist in removing any information which may be recorded by a credit bureau agency.
14. Invoices will not be sent to Clients by post, unless specifically requested. Delivery of invoices will be made by email; however, failure to deliver invoices in a timeous manner does not excuse the Client from the requirement to make payment for any and all Charges due.
15. Any hardware, software or documentation purchased from AOS by the Client remains the property of AOS until fully paid for by the Client.
5. OBLIGATIONS OF THE CLIENT
1. The Client is responsible for providing all the necessary means to gain access to the Service; and to ensure compatibility thereof with the Service.
2. Where a Client engages in activities or if AOS believes a Client has engaged in activities which are illegal or prohibited under this Agreement, AOS may exercise any of the rights set out in this Agreement, including but not limited to suspension or termination. AOS will not be required to show proof of such activities, and the responsibility lies solely with the Client to show just cause why AOS should overturn any actions already instituted or that it intends to institute against the Client.
3. The Client agrees to observe and comply with of AOS’s Acceptable Use Policy.
4. The Client agrees to comply with all requirements of networks connected to the Service; and to comply with all applicable laws and standards regarding the transmission of data. Among other things, the Client agrees not to use the Service to:
1. commit illegal acts
2. interfere with or disrupt the services, infrastructure or networks connected to the Service;
3. attempt to gain unauthorised access to other computer systems or networks connected to the Service
4. send or receive, or make available by means of the Service:
1. any harassing, libelous, abusive, threatening or offensive material of any kind;
2. any material that violates the rights of another, for example copyright;
3. any material that violates any applicable law, regulation, policy or code of conduct;
4. any material that can be regarded as junk mail or spam, malicious code such as viruses, worms and Trojans, or unsolicited bulk email.
5. The Client is solely responsible for securing any sensitive data in its possession such as usernames and passwords used to access the Service. Consequently, the Client is liable for any and all Charges, costs and damages resulting from the unauthorised use of the Service related to the Client’s account and/or the theft or fraudulent acquisition of sensitive data in the Client’s possession.
6. AOS shall have the right to recover from the Client the cost to AOS of time spent dealing with any technical and other problems which arise as a result of any use of the Client’s account.
7. The Service provided is non-transferable and for use only by the Client. Furthermore, the Client 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 unless consented to in writing by AOS.
8. Where the Client makes use of any property of AOS, or any property that AOS is responsible for, outside the confines of AOS’s premises, such Client shall be liable for any loss, whether due to theft, damage or howsoever caused, with regard to the property.
6. CANCELLATION, SUSPENSION OR TERMINATION OF SERVICE
1. This Agreement may be cancelled by either party by giving at least one calendar month's notice in writing, subject to the conclusion of any agreed contract period. For a cancellation to be considered valid, the Client must receive and retain written confirmation from AOS acknowledging cancellation.
2. Where the Client breaches any of the terms or conditions of this Agreement and fails to remedy such breach immediately; commits any act of insolvency; endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice AOS’s rights at all; 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; or 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; AOS shall have the right, without prejudice to any other right, including the right to claim damages, which it may have against the Client to:
1. suspend or terminate the Service;
2. treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears and to cease performance of its obligations hereunder as well as under any other contract with the Client until the Client has remedied the breach; and/or
3. cancel this Agreement;
3. Any existing dial-up service that the Client has will not be cancelled automatically on the addition of an ADSL service and remains in effect until the Client gives AOS written cancellation of such Service.
7. DISCLAIMER OF WARRANTY
1. AOS’s Service is provided on an “as is, as available” basis. Due to the multitude of factors involved in providing the Service, including many beyond the control of AOS, AOS gives no warranty, express or implied, for any Service provided, including without limitation, warranty of the merchantability and warranty of fitness for a particular purpose. In no event will AOS be liable for any loss or damage of any kind (including without limitation loss of profits, business interruptions, or loss, corruption or misdelivery of data) however caused and whether arising under contract, tort (including negligence) or otherwise.
2. Use of any information obtained by way of AOS is at the Client’s own risk and AOS specifically denies any responsibility for the accuracy or quality of information obtained through its Services.
3. The liability of AOS (if any) in contract, tort, negligence or otherwise arising out of or in connection with this Agreement, in respect of all defaults related or unrelated, will not exceed in aggregate the Charges received by AOS from the Client for a period of 1 (one) month.
4. Where the Service entails supplying equipment to the Client, the warranty for such equipment will be carried by the manufacturer. Should the equipment fail or malfunction during the warranty period, the Client is responsible for returning such equipment to AOS’s premises, otherwise AOS shall be entitled to charge a fetch/delivery fee.
1. The Client agrees to indemnify and hold harmless AOS from any claims brought by a third party resulting from the Client’s use of, or interaction with, the Service, and in respect of any losses or liabilities incurred directly by AOS as a result of the Client’s breach of this Agreement. The Client shall pay all costs, damages, awards, legal costs on attorney and own client scale and judgments awarded against AOS arising from any such claims and shall provide AOS with notice of such claims, full authority to defend, compromise or settle such claims and all assistance necessary to defend such claims, at the Client’s sole expense.
2. AOS disclaims liability for any damages arising from the Client’s use of the Service, and the Client expressly agrees that use of AOS’s service is at the Client’s sole risk. The Client acknowledges that AOS makes no warranty as to the results that may be obtained from the use of the Service or as to the accuracy, availability, reliability or content of any information, service or merchandise contained in or provided through the Service. The Client agrees to indemnify and hold harmless AOS against losses, theft, injury, damage, penalties, legal costs on attorney and own client scale, or any claims of whatever nature howsoever arising from or in connection with the Services provided by AOS. This indemnity will extend to include any claims that may arise from the theft, loss or damage of any of the Client’s property while in the care of, or on the premises of AOS.
3. AOS disclaims liability for the Client’s data residing on AOS’s or the Client’s equipment. The Client is solely responsible for maintaining data back-ups and ensuring their integrity.
4. Where the Client makes use of the AOS’s Web Hosting Service. the Client agrees that it shall defend, indemnify, save and hold AOS harmless from any and all demands, liabilities, losses, costs and claims, including legal costs on attorney and own client scale asserted against AOS, that may arise or result from publication or use of the Client’s content, any service provided or performed or agreed to be performed or any product sold by the Client or its agents. The Client agrees to defend, indemnify and hold harmless AOS against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed by the Client through AOS’s Web Hosting service; any material supplied by the Client infringing on the proprietary rights of a third party; copyright infringement and any defective product which the Client sold via AOS’s Web Hosting Service.
5. The Client agrees that AOS’s network vendor(s) shall be third-party beneficiaries of the provisions of this Agreement.
6. The provisions of this Clause shall survive any termination of this Agreement
9. ADSL AND DIALUP SERVICES
1. The Client shall be solely responsible for the purchase, management, security, and maintenance of all relevant hardware, software, and all telephone rentals and call costs used to connect to the Internet.
2. AOS does not guarantee ADSL or dialup throughput speeds, availability, or its usefulness for any purpose.
3. For all capped ADSL services, once the Client’s usage equals or exceeds the agreed traffic allowance during any calendar month, the service will cease to function or be slowed down dramatically until the end of the current calendar month. It remains the Client’s responsibility to monitor the status of the cap, either by making use of the web-based monitoring service or by receiving daily email updates of their ADSL usage. The accuracy and availability of such facilities cannot be guaranteed by AOS as it is provided by a third party not under the control of AOS.
4. The Client is solely responsible for all Charges (usage or other) generated as a result of any unauthorised use of the Services via the Client’s account.
10. DOMAIN NAME SERVICES
1. AOS shall, at its discretion and as agreed with the Client, acquire the registration, transfer, modification and/or forwarding of a domain name for the Client. AOS does not guarantee the availability of any domain name at any given time, even though it may appear to be available on the registering authority’s website. Furthermore, the Client agrees to hold AOS free of any liability or claims of whatever nature that may arise from the domain being registered by another party between the time the Client provides AOS with the instruction to procure the domain name and the actual act of procurement by AOS.
2. The Client acknowledges that the registration, transfer, modification and / or forwarding of a domain name is subject to the rules and regulations of the relevant registering authority and that AOS cannot guarantee the registration of the domain selected by the Client.
3. The Client hereby warrants being the lawfully entitled owner of the domain name, or has the consent of the owner to use such domain name and that in using the domain name it has not violated any intellectual property rights of whatever nature of any person who may lawfully claim title of whatever nature to such domain name and hereby indemnifies and holds AOS free from any liability and any claims of whatever nature howsoever arising as a result of the use of the domain name.
4. Domain name registration Charges are non-refundable once a domain name has been registered by AOS on behalf of the Client, including, but not limited to the case where a mistake has been made by the Client (for example, a misspelling of the domain name).
5. AOS, at its sole discretion, may automatically renew domain names on behalf of the Client when such registrations fall due, and bill the Client accordingly. Should the Client not wish to renew a domain name, then AOS must be informed in writing 30 (thirty) days prior to the domain name renewal falling due. AOS does not however guarantee the renewal of domain names, and it remains the sole responsibility of the Client to monitor the registration status of their domain(s). The Client agrees to hold AOS free of any liability or claims of whatever nature that may arise from the failure of a Client’s domain name to be renewed timeously.
11. EMAIL SERVICES
1. AOS shall provide the Client with an email service as agreed in the registration process.
2. AOS shall not be held responsible for the loss, misdirection, deletion, corruption, loss of privacy or failure of the delivery/receipt of any email. The Client acknowledges that email, and any associated antivirus scanning and spam blocking, is a “best effort” service that is inherently insecure and prone to errors. The Client thus agrees to indemnify and hold harmless AOS from any loss, damage or claims that the Client or third party may incur as a result of using or interacting with the Service.
3. AOS runs email antivirus scanning by default for all Clients. However, AOS cannot guarantee that every virus will be removed prior to email delivery to the intended recipient. The Client therefore acknowledges that the sole responsibility for protecting the Client’s equipment against viruses or any malicious code lies with the Client.
4. AOS runs email spam blocking by default for all Clients. Though the Client may request that such blocking be disabled for their account, certain forms of spam blocking cannot be disabled per individual account, and hence will always remain in force. The Client acknowledges and accepts that AOS cannot guarantee the blocking of every spam email prior to email delivery to the intended recipient, nor that valid emails will not be blocked and/or deleted when mistaken for spam.
5. The Client agrees not to cause the email service to be utilized as an open relay. Where relaying is identified, AOS reserves the right to suspend or terminate the Client’s Service until the Client has corrected the situation.
12. WEB HOSTING SERVICES
1. AOS shall host the Client's website on its web servers as agreed in the registration process.
2. Access to the Client’s website shall be limited to the agreed monthly data traffic allowance. Where the Client exceeds this allowance the Client may request; either an upgrade to a higher hosting package or be billed R0.20 per megabyte for all data traffic exceeding the monthly traffic allowance. It is the Client’s responsibility to monitor the traffic usage of their website. For this purpose AOS will make available the necessary tools on request, and the Client agrees that such tools will be the only permitted authority for measuring usage.
3. The size of the Client’s website is limited to the agreed monthly disk space allowance. Where the Client exceeds this allowance the Client may request; either an upgrade to a higher hosting package or be billed R0.20 per megabyte of disk space exceeding the monthly disk space allowance. AOS shall inform the Client when the disk space allowance is exceeded.
4. The cost of designing and maintaining the Client’s website is for the Client’s cost alone.
5. The Client agrees that AOS has no responsibility or liability for the content of the Client’s website or the illegal use of software and the publication thereof, whether or not AOS had knowledge thereof. The Client hereby indemnifies and holds AOS harmless against any liability and claims of whatever nature made for any loss or damage suffered arising directly or indirectly from the hosting and/or publication of the Client’s content or software on the Client’s website.
6. The Client agrees that if AOS, at its sole discretion, decides that the Client’s content is undesirable or illegal, or utilizes illegal or harmful software or licenses, that AOS without derogating from any of its other rights in terms of this Agreement or in law, may request the Client to immediately remove, amend or modify the content in question; or without notice delete the Client’s website from the server and/or terminate all access to the Client’s website.
7. The Client agrees that under no circumstances shall AOS be liable for any damages whatsoever or howsoever arising that may result from the use of or inability to use AOS’s Web Hosting services. These include, but are not limited to mistakes, omissions, interruptions, deletion/loss of files/data, errors, defects, delays in operation, or of performance, acts of God, communication failure, theft, destruction or unauthorized access to AOS’s records, programs or services. The Client maintains sole responsibility for data backups and restoration.
8. The client agrees that any material submitted for publication on AOS’s Web Hosting services will not violate or infringe any copyright, trademark, patent, statutory or common law or proprietary rights of others, or contain anything libelous or harmful. The Client holds AOS harmless and indemnifies AOS from any damages, fines, or costs including attorney fees which may arise from any such violation or infringement.
13. SERVER HOSTING SERVICES
1. AOS shall host the Client's server(s) as agreed in the registration process.
2. The Client agrees that AOS has no knowledge of the data, software or content on the Client’s hosted server and therefore has no responsibility or liability therefore. The Client hereby indemnifies AOS and holds it harmless against any liability and claims of whatever nature made for any loss or damage suffered arising directly or indirectly from the hosting of the Client’s server(s)
3. The Client agrees that if AOS, at its sole discretion, decides that the Client’s hosted server has content that is undesirable or illegal, or utilizes illegal or harmful software or licenses, that AOS without derogating from any of its other rights in terms of this Agreement or in law, may request the Client to immediately remove, amend or modify the content, software or licenses in question; or without notice limit and/or terminate all access to the Client’s hosted server.
4. Where the Client hosts services that are the same or similar to those offered by AOS, for example email and/or web hosting, the relevant terms and conditions dealing with these Services herein will apply mutatis mutandi.
1. AOS reserves the right to vary these terms and conditions from time to time and will provide at least 30 (thirty) days advance email notification to the Client. Continued use of the Service after the effective date of a change will constitute acceptance.
2. With the exception of clause 2.7, these terms and conditions, together with Client registration, shall constitute the entire Agreement between the Client and AOS and supersedes all other communications. Furthermore,
1. The Client acknowledges that they have read and accept the terms of this Agreement.
2. This Agreement shall be governed by and construed in accordance with the laws of South Africa and the Client hereby submits to the exclusive jurisdiction of the courts of South Africa. The Client undertakes to familiarize 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. The Client acknowledges that AOS has no obligation to assist the Client in this regard.
3. The Client certifies that he or she has full right and authority to enter into this Agreement.
3. AOS and the Client respectively choose their domicilium citandi et executandi (“domicilium”) at their respective street addresses as established during the registration process. Either party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within 10 (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 on the day of delivery as the case may be.
4. Should any of the terms and conditions of this 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.
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Online Systems Pty Ltd 2008
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