Confidential information  

 Definition.  

Confidential information is any information that the parties share with each other in terms of this agreement, with the intention that the other party should keep it secret. This includes personal information, business records, or customer details.  

Responsibilities.  

The parties will keep any confidential information received from each other confidential and the receiving party will:  

• protect the other party’s interests;  

• only use the confidential information to comply with their responsibilities under the agreement;  

• only give it to their employees or agents that need it (and only as much of the information as is absolutely necessary);  

• use reasonable security procedures to make sure their employees or agents keep it confidential;  

• get promises of confidentiality from those employees or agents who need access to the information;  

• not reveal the information to anyone else; and  

• not use it for any purpose other than under this agreement.  

End of agreement.  

The parties will give back to each other all confidential information that we have of each other at the end of the agreement, unless:  

• the other party agrees that they may destroy or retain it instead; or  
• it is lawfully known to the general public;  
• someone else who is allowed to reveal it gives it to them;  
• someone gives it to them to comply with a court order or other legal duty.  

Indemnity.  

Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this confidential information clause by either party, or an employee or agent of a party.  

Survival.  

This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.  

Intellectual property  

Ownership.  

We or our third party licensors own all rights in our services and we or they may prosecute you for any violations of these rights.  

Our technology.  

Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.  

Retention of rights.  

We own all intellectual property rights in our technology, and you may not use those rights without our permission. You do not get any rights in our technology if we use it to provide services to you.  

Our trademarks.  

Our trademarks are our property, and you may not use them without our written permission. All other trademarks are their respective owners’ property.  

Restrictions. You may not change, hire out, reverse-engineer, or copy the services without our written permission.  

Your intellectual property. You grant us a non-exclusive and royalty-free license to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your written permission. The license expires automatically when the agreement ends. You keep all rights in your trademarks and copyright works despite this license.  

Non-solicitation  

You will not contract with any of our staff, other than through us, who were involved in providing services for 12 calendar months after its termination 

Fees and payment  

When to pay.  

You will pay us the monthly access fee specified for the services on the first calendar day of each month, starting on the effective date.  

Debit orders.  

Debit order payments will run on the first day of each month.  

Last day for payment.  

All payments must be made by the seventh day of each month.  

Non-payment.  

We may suspend your services if payments are not made by the last day of the month.  

Fee increase.  

We may increase the fee once during each successive period of 12 calendar months calculated from the effective date by giving you 1 calendar month’s advance written notice. On receipt of the notice, you may terminate this agreement by giving at least 1 calendar month’s written notice beforehand.  

Additional fee.  

If, after the effective date, the fee payable by you increases as a result of an increase in services for whatever reason, including you electing to use additional services, you will pay us the additional fee as we agree to.  

Suspension of the service  

Your content.  

We will not erase your content when we suspend your services.  

Without reason.  

We may modify, suspend, or discontinue providing the services without reason (with or without notice) and will not be liable to you in any way.  

Acceptable Use Policy violation.  

We may immediately suspend your right to use any of the services if you violate our acceptable use policy, that we may have in place from time to time. You understand that you must read our acceptable use policy and abide by it.  

Preservation of data.  

In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to add up.  

Our warranties  

Service warranties. We confirm that we will:  

• have enough trained staff with the knowledge and expertise to provide the services;  
• use reasonable efforts consistent with industry standards to maintain the 
• services; and provide the services in accordance with all applicable laws.  

General warranties  

We warrant further that we: have the legal right and authority to perform our obligations under the agreement; and will not knowingly introduce any malicious software into your systems.  

Disclaimer and liability  

You use the services at your own risk. We are not liable for any defect or problem that you cause relating to the services.  

Exclusion of liability.  

Under no circumstances are we responsible for any defects that are caused by you being negligent or misusing the services or any part of the services.  

Your warranties  

You confirm that:  

 no one has forced you to enter into the agreement in any way; and  
you are not breaching any other agreement by entering into the agreement.  

 Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs are the costs that a lawyer may recover from a client for expenses and professional services, if the costs may be charged under any applicable laws.  

 Limitation of liability  

Direct damages. We are only liable to you for any direct damages that the services may cause up to the total amount of three months’ fees that you have already paid us for them.  

Indirect damages. We are not liable for any other damages or losses that the services may cause you.  

Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistakes cause.  

Breach and Termination  

Breach. If either party:  

• does not fix a breach within seven days of receiving written notice from the other party;  

• breaches the agreement materially twice or more in six months;  

• is bankrupt or has some legal disability;  

• takes steps to or is closed down (such as becoming insolvent or entering sequestration);  

• makes any settlement or arrangement with their creditors; or  

• fails to pay a court order against themselves for a significant amount within 21 days;  

With regards to the breach, then the other party may:    

• make the party comply with the agreement; or  

• immediately cancel the agreement in writing and claim damages from the other party, including fees already due.  

Suspending the services. We may immediately suspend your right to use the services if:  

• you try to gain unauthorized access to them;  

• we decide that your use of the services poses a security threat to us or another user other than you;  

• there is evidence of fraud on your account; or  

• we believe you are using the services for an illegal purpose or in way that interferes with a third party’s rights.  

We will not delete your content while the services are suspended. 

Termination

Termination for good reason. We may need to terminate the agreement immediately if we:  

• discontinue or stop providing the services;  

• believe providing the services could burden or pose a risk to us;  

• have to terminate to comply with a law; or  

• determine that providing the services has become impractical.  

If we need to terminate the agreement, we will give you as much notice as reasonably possible, in writing.  

Termination for convenience.  

You may terminate the agreement on at least 60 days’ written notice to us.  

Termination for abuse. 

We may terminate your agreement if you are found abusing our services or staff. Abuse will include abusing the services we provide as well as any abuse shown towards our staff members during their communication with you.  

Duties on termination.

We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.  

Effect of termination  

Acceleration.  

All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.  

Fees

Fees charged for our hosting services will not add up once we have terminated the services.  

Assistance.  

We may provide you with assistance after termination (such as data retrieval) subject to additional fees and conditions, but are not obliged to.  

No expectation.  

The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the you and us.  

Disputes  

Resolving disputes.  

Either party may let the other party know in writing if there is a dispute that must be solved. The parties must first try to resolve the dispute between themselves within 10 business days. 

Mediation.  

If the dispute is not resolved by the parties within 10 business days, the parties may refer the dispute to mediation under AFSA’s rules.  

Arbitration.  

If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Johannesburg, South Africa. The parties will agree and appoint 1 arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.  

General terms  

Entire agreement.  

The agreement is the entire agreement between the parties relating to the services  

Governing law.  

South African law governs this agreement.  

Notices and domicile.  

The parties will send all notices to each other’s email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days’ written notice to the other party.  

Beyond reasonable control.  

Neither party is responsible for breach of the agreement caused by circumstances beyond reasonable control, but a party may cancel the agreement on written notice to the other party if the circumstances continue for more than 60 calendar days.  

Transfer.  

You may not transfer the agreement to anyone. We may transfer it to any permitted replacement entity or buyer of our whole business or any part of it.  

Relationship.  

The agreement does not create any kind of relationship between the parties, except as written in the agreement.  

Changes.  

We will let you know notify you of any changes to the agreement by email. Those changes will only apply to future services orders. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be regarded to have accepted them.  

Waiver  

Any indulgence or favour we may allow or give you will not affect any of our rights against you.  

Severability  

Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of the agreement’s validity.   

Jurisdiction 

You consent to the jurisdiction of the Magistrates’ Court for any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond that court’s jurisdiction, without prejudice to our right to institute any action in any other court which has jurisdiction.