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Domains and Web Hosting

DOMAINS AND WEB HOSTING

1. Introduction

1In addition to the General Terms, these terms and conditions govern the use of the Hosting Partners domain registration and hosting services. By contracting with Hosting Partners for the services a Client will be lawfully regarded as having agreed to their use of the services specified being governed by this Agreement.

2. Domain Registration

1Hosting Partners registers domains on the Internet through the relevant governing bodies and hosts websites and related material on the Hosting Partners server(s) on behalf of Clients. These terms and conditions apply to the use and registration of domain names and the web hosting services offered by Hosting Partners.

2Hosting Partners registers domains through approved Domain Registrars, such as Zadomains (for gTLDs). Hosting Partners may, at its discretion use other approved entities for registration, but in general may limit domains offered based on availability from the registrar concerned.

3Hosting Partner’s hosting and free registration (where applicable) is sold as a bundled package and cannot be separated, i.e. Hosting Partners will not pay for registration if it is not combined with any of their hosting products.

4The Client will be bound by the terms and conditions of the relevant domain name space (e.g. .com or .co.za) under which any domain name registered on its behalf falls, and should become familiar with them. Hosting Partners may post links to these terms and conditions on the Hosting Partners Website purely as a convenience to the Client.

5Where Hosting Partners is acting as a registrar or reseller in registering a domain name for the Client, the Client may be required to agree to further terms. Hosting Partners will provide the Client with a link to these terms, which are incorporated into this Agreement by reference.

2.6Hosting Partners will strive to ensure that registration and subsequent DNS propagation is effected in the shortest period of time. However, Hosting Partners cannot be held liable for any delays that may accompany the registration of domains. Initial Setup fees are non-refundable. Domain Name Registration fees constitute a once-off payment subject to certain renewal charges.

3. Free Domain Registration

1Domain registration may be offered free of charge with Hosting products, depending on the nature and type of TLD (Top Level Domain). This offer is based on the assumption that the domain (and site content) will be hosted with Hosting Partners for a reasonable period. Hosting Partners reserves the right to, at their discretion, charge a parking fee where a minimum period (3 months) has not been observed on the Hosting product before downgrading to a Parking product. The fee will depend on the type of domain and applicable administration fees. Waiving such fees will be entirely at Hosting Partner’s sole discretion.

2Hosting Partners reserves the right to charge a domain registration fee (in arrears) for any domain name which is registered as a FREE domain with a hosting package that is cancelled (or the domain is transferred) within 6 months of sign up. Such fee(s) will be invoiced exclusively at Hosting Partner’s discretion, and no leniency extended to Clients on previous occasions will in any way prejudice Hosting Partner’s right to enforce this clause. Such fees must be settled before any domain transfer can be effected with the applicable registrar.

3Hosting Partners will not tolerate any abuse of their free registration policy. Any such abuse will result in the immediate termination of accounts concerned and Service Agreement, as well as possible further action to recover applicable costs from the Client.

4Hosting Partners only offers Free Domain registration for “.co.za” domains with new hosting package signups. Other TLDs or gTLDs are not included in the Free Domain Registration offer. Hosting Partners will register domains as per the clauses above, but will not be responsible for any further costs in relation to the domain, such as Annual Renewal Fees, Redemption fees or any other fees which may become payable in respect of domain ownership. Clients are exclusively responsible for such fees, and Hosting Partners will not enter into any disputes resulting from non-payment. Should such domains be automatically renewed, Clients will be billed for such renewal without exception. Clients not wanting to continue with a specific domain must ensure that cancellation is effected before any such renewal is actioned by Hosting Partners with the registrar concerned.

4. Domain Transfer

1Hosting Partners will transfer existing (registered) domains from existing hosting providers to Hosting Partner’s DNS and web servers. Upon requesting the transfer, and accepting the relevant Service Terms, the Client explicitly agrees that it has the authority to do so, being the registrant of the domain in question, or having been nominated as an agent of the registrant. The Client thereby indemnifies Hosting Partners from any disputes regarding ownership of the domain and any claims as a result thereof.

5. Cancellation

1Cancellation will be dealt with as per the General Terms.

2Cancellation, by the Client or Hosting Partners, will result in any data being permanently removed from Hosting Partner’s servers. Clients are solely responsible for ensuring that backups are made of web content and email data, or any other data stored on their hosting space. Hosting Partners will not be liable for loss of data, or be obliged to provide any such data once the hosting contract term has expired. Any backups made by Hosting Partners will be made for legal purposes and not for data retention purposes and will not necessarily be made available to Clients on request.

6. Payment and Payment Terms

1Payment will be dealt with as per the General Terms.

2In the case of a website being suspended due to non-payment a reconnection fee will be payable before the website is unsuspended. An additional waiting period of up to 72 hours may be imposed in the case of multiple payment bounces.

7. Liability for Registration and Use of Domain Names

1Hosting Partners has not and does not conduct pre-registration searches in respect of the Client’s use and registration of its selected Domain Name/s and is therefore not obliged to either advise the Domain Name client about possible conflicting third party rights or to take steps to ensure against possible disputes concerning a third party’s intellectual property or other rights.

2Hosting Partners reserves the right to disclose pertinent information to Registrars for public disclosure as per the Terms and Conditions of the Registrar. Hosting Partners will not be held liable for any claims of infringement of privacy by fulfilling such registration conditions.

3This forms a regulatory requirement by the registrar, and there a Service Agreement requirement to the Client.

4The Client indemnifies Hosting Partners by warranting that the use or registration of the Domain Name by a Client does not interfere with nor infringe the rights of any third party in any jurisdiction with respect to trademark, service mark, tradename, company name, close corporation name, copyright nor any other intellectual property right, and that Client has the right to use the Domain Name as requested.

7.5Hosting Partners cannot act as an arbiter of disputes arising out of the registration and use of Domain Names. At the same time, Clients acknowledge that Hosting Partners may be presented with evidence that a Domain Name registered by a Client violates the rights of a third party. In such instance Hosting Partners shall be allowed to provide a complainant with the Client’s name and address and all further communication will exclude Hosting Partners and Hosting Partners will have no further obligations to the Client. In such instance the Client shall be entitled to continue using the Domain Name registered for the Client by Hosting Partners until a court or other body with jurisdiction directs otherwise.

8. Hosting Services

1Hosting Partners does NOT provide SMTP mail services by default with shared hosting packages.

2Hosting Partners reserves the right to suggest suitable alternatives to the Client and / or charge for excessive traffic or system resources as it deems necessary, at its sole discretion. Excessive traffic or use of system resources will be determined as set out in the Acceptable Use Policy.

3Hosting Partners reserves the right to move a website between web servers and Internet backbones, both within South Africa and internationally as it deems necessary. If a Client moves in excess of their monthly web traffic allocation, then the Client will be contacted and various options will be presented.

4Hosting Partners reserves the right (but does not assume any obligation) to inspect the contents of data that the Client transmits, receives or stores on an Hosting Partners Server to ensure compliance with this Agreement, Hosting Partner’s AUP, or any applicable laws regulations or codes of practice.

8.5The Client must immediately and adequately respond to a denial of service attack (DOS / DDOS).  If the Client’s facilities are targeted by a DOS attack that affects other network users, the Client’s Service will be suspended.

9. Backups

1Clients are solely responsible for backing up their data and Hosting Partners strongly encourages ALL Hosting Clients to do so as frequently and completely as possible. Hosting Partners will not be liable for any data loss or any other losses or damages related to backups or data recovery without exception.

2Hosting Partners may, in some instances, offer a separate backup service in conjunction with dedicated hosting, and will make such backups available to Clients on request as and when they are available. However, Hosting Partners does not warrant or guarantee the availability, completeness or “up to date” status of such backups.

3Clients are ultimately responsible for their own data, and Hosting Partners strongly encourages such Clients to continue to make their own backups as frequently and completely as possible to ensure that they have recourse in the event of any failure.

4Hosting Partners also cannot guarantee the condition or fitness of any backups provided. Such backups are provided “as is” and are used at the Client’s own risk and discretion – whether restored by Hosting Partners by instruction from Clients or by Clients themselves.

9.5Hosting Partners will not be liable for any losses or damages relating to any incidents arising out of such backups being provided (or not provided) to Clients on request.

10. Dedicated Servers

1Hosting Partners provides servers to Clients for the purposes of their hosting needs. However ownership of physical hardware rests solely with Hosting Partners at all times. Clients may not make any claim to hardware deployed for their hosting, and may not have access to Hosting Partners property, hardware or hosting infrastructure (such as data centres).

11. Cloud Hosting (Currently not available)

1Hosting Partners reserves the right to manage the cloud environment at its discretion for the overall benefit of cloud hosted Clients. Any virtual machine which Hosting Partners deems at its sole discretion to have a negative effect on the environment may be powered down or suspended.

2Hosting Partners deploys all new Cloud Servers with HyperV tools (VMadditions, LIS) pre-loaded. VMadditions is integral to the smooth running of virtual servers, including managing resources and smooth and safe rebooting. VMadditions must be running at all times, as shutting it down will severely affect the performance of the server, and efficiency of the core controllers i.e. affecting other clients’ virtual servers.

3Hosting Partners strictly forbids the creation of nested VM’s, or virtual instances within a virtual server. This severely degrades overall performance and will be treated as a violation of Hosting Partner’s AUP and Terms & Conditions (contrary to the intended use of the product).

4Hosting Partners also strictly forbids any misuse of shared or cloud resources, such as Ram Disks (use RAM memory as storage disk space), which abuses resources and compromises the integrity of the cloud environment.

5Hosting Partners may also, at its discretion, restrict server to limited IOPS (Input Output Operations Per Second) where a Client’s use of available virtual resources is negatively affecting the overall environment.

6Hosting Partners reserves the right to move a Cloud server between our virtual environments and Internet backbones, both within South Africa and internationally as it deems necessary.

12. 99.99% Website Uptime Guarantee

1Hosting Partners guarantees that its hosting services will attain 99.99% availability, subject to the following.

2The 99.99% website uptime guarantee is applicable only if the web server on which a Client’s web hosting service resides crashes or goes down at an unscheduled time. This guarantee is not valid if there is any network problem between the Client and the web server which prevents the Client from seeing the web server, for instance. If the Client’s ISP’s link to the respective data centre goes down or is faulty, but the web server Hosting Partners hosts is still up, Hosting Partners is not responsible for the Client not being able to reach their website.

3Hosting Partners is not responsible if any third party operated network or service experiences problems and outages (i.e. all network infrastructure and links, Client’s internet connection, firewall service managed by external parties). If the applicable web server is up and running at all times then the website will be deemed to have achieved 99.99% uptime.

4The 99.99% uptime guarantee does not apply to any scheduled downtime for maintenance of any of the Hosting Partners web servers. If there is scheduled maintenance to be done the Client will be notified at least 24 hours in advance. The scheduled maintenance will always be done after hours (based on Central African Time (CAT)) and the web server downtime will be kept to a minimum.

5The 99.99% uptime guarantee does not apply if Hosting Partners suspends the Client’s Service as allowed in terms of this Agreement.

6Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services.

7Disputes arising out of the Uptime Guarantee must be submitted in writing and claims may not exceed fees paid (either monthly or on a pro-rata basis) to Hosting Partners for services not received during downtime. No direct or indirect losses or damages resulting from downtime may be claimed. Service Level commitments will also be taken into account when reviewing disputes. Where agreed provisions have been met, such disputes will be dismissed.

8The Services provide access to the internet, which is subject to bandwidth constraints, system failures and all manner of other factors that may impact on the Client’s access, for which Hosting Partners accepts no responsibility.

12.9The client is requested to visit their webmail service in order to check incoming and outgoing message when not being able to send or receive via an e-Mail client like Outlook before submitting a support ticket.  If the client is able to send and receive messages via the webmail service their ISP should be contacted as this could be the result of a technical issue with their internet connection and/or e-Mail client.

13. Use at Client’s Risk

1Hosting Partners will exercise no control whatsoever over the content of the material hosted on, or the information passing through the Hosting Partners network and in no way moderates such content.

2Clients expressly agree that use of Hosting Partner’s Server(s) and Services are at the Client’s sole risk.

14. Spam/Virus Filtering

1Hosting Partners provides a spam and virus filtering system to protect Clients from unsolicited mail and viruses. The Client acknowledges that this system might incorrectly identify a valid message as spam or as a virus and consequently this message might not be delivered to the Client. The Client acknowledges and agrees that Hosting Partners shall without limitation have no responsibility for, or liability in respect of any data lost as a result of this system.

2Hosting Partners reserves the right to examine incoming or outgoing mail to the extent necessary to determine if it is classified as spam or malicious.

15. Webmail

1Webmail and other web-based email services made available by Hosting Partners are provided on an “as is” basis without representations, warranties or conditions of any kind, and the Client acknowledges and agrees that Hosting Partners shall have no responsibility for, or liability in respect of, any aspect of the webmail services, including without limitation for any lost or damaged data or any acts or omissions of Hosting Partners. As webmail storage space is limited, some webmail messages may not be processed due to space constraints or message limitations.

2Kindly refer to paragraph 12.9 should you not be able to send and receive messages via e-Mail client.

16. Limitation on Mail Size

1Individual mail sent to the Client’s POP3/IMAP box or forwarded to the Client’s existing email address may be limited to 3000kB in size each.

17. Takedown Notice Procedure

1In terms of section 75 of the Electronic Communications and Transactions Act (“the ECT Act”) the Internet Service Providers’ Association (ISPA) can instruct Hosting Partners to perform a site takedown upon receipt of notification of infringements as defined in Section 77 of the Act.

Any enquiries can be directed to ISPA at:
Postal address: PO Box 518, Noordwyk, 1687, Midrand
Tel: 010 500 1200
Email: takedown@ispa.org.za

Should Hosting Partners receive a takedown notice from ISPA, Hosting Partners will endeavour to:
1. Notify the Client in good time of the takedown notice.
2. Allow the Client reasonable time to remove the disputed, illegal or infringing content.
3. Takedown any sites or services which are included in the ISPA takedown notice.

18. Retention of Rights

18.1Hosting Partners makes no claim to the intellectual property (such as data) of Clients hosted on their servers. However, all equipment remains the property of Hosting Partners and retention of data does not directly or indirectly give ownership of Hosting Partners hardware to Clients.

19. IP Addresses

1Hosting Partners will issue IP addresses to dedicated servers or to other hosting servers, either as part of the standard product, or upon request (subject to applicable fees). IP addresses will be assigned to Clients at Hosting Partner’s discretion and on a first come first serve basis.

20. Software Updates

1Hosting Partners will be responsible for updates to Operating Systems and Shared Libraries on Shared Hosting Servers.

2Hosting Partners will only effect software updates to Operating Systems on Managed Dedicated Servers (including cloud servers). Hosting Partners will not effect other updates on Managed or Unmanaged servers, as this is not part of the service offered.

21. Disclaimers, Limitations and Indemnities

1Hosting Partners will not be liable for any loss or damage, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, delict, or otherwise which may be suffered as a result of or which may be attributable, directly or indirectly, to the use and/or registration of the Client’s selected domain names/s OR ANY ACTION TAKEN BY HOSTING PARTNERS IN RESPONSE TO THE ABUSE OF THE DOMAIN REGISTRATION SERVICES WHICH IT OFFERS.

2The Client hereby indemnifies and holds harmless Hosting Partners against any loss whatsoever arising from any dispute or claim or other action occasioned by the Client’s use and registration of its selected Domain Name, even if Hosting Partners has been advised of the possibility of such damages;

3Hosting Partners will not be liable for any indirect or consequential loss, damage, cost or expense of any kind, irrespective of how such damage or loss was caused, whether arising under contract, delict or otherwise, including, and not limited to, data loss or corruption, loss of profits, contracts, operation time and goodwill.

4Neither Hosting Partners, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that Hosting Partner’s Server service will not be interrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Hosting Partners Server service, unless otherwise expressly stated in this Agreement.

5Hosting Partners expressly limits its liability to the Client for damages suffered due to any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Hosting Partners specifically denies any responsibilities for any damages arising as a consequence of such unavailability.

6Hosting Partners is not responsible if an external company network and firewall is setup to block access to services Hosting Partners provides. If a Client’s network is setup to block certain ports or web addresses that compromise the services Hosting Partners provides it is the Client’s responsibility to ensure that their network configurations are changed as necessary.

7Clients also hereby indemnify Hosting Partners against any 3rd party claims against themselves as resellers or services provided to the public or privately. Clients will be solely liable to external parties for losses and may, in no way, petition Hosting Partners to share or cover such losses or liability, either directly or indirectly. Hosting Partners is also indemnified from direct claims from Clients for losses incurred due to 3rd party actions or claims.

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