Terms of Service
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Introduction

DigiServ™ Technologies cc strives to offer all its customers a reliable and excellent level of service. If you have any queries we would like to hear from you. Please e-mail us at support@digiserv.biz or see the "Contact Us" section on our web site for other contact details.

This Legal Terms of Agreement (this “Agreement”) is between DigiServ™ Technologies cc, a South African Web Hosting Corporation, and the person (individual or legal person) who signs (electronically) DigiServ™ Technologies cc’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”).  This Agreement governs Customer’s use of DigiServ™ Technologies cc’s services.

Definitions

In these conditions, unless the context requires otherwise, the following words shall have the following meanings:

• "CIS" means the customer information sheet issued to you by DigiServ™ Technologies cc from time to time and which includes information on the Services including without limit Keywords, bandwidth and scope of services
• "Customer" or "you" means the person (individual or legal person) who signs (electronically) DigiServ™ Technologies cc’s service order and set up form (the “Order”)
• "Conditions" means the standard terms and conditions of sale set out herein;
• "Contract" means any contract for the provision of the Services;
• "IPRs" means any and all intellectual property rights including without limit any and all patents, design rights, database rights, copyright, know-how, moral rights, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
• "Keywords" means those words notified to you by DigiServ™ Technologies cc which control your access to some of the Services including without limit your password and username;
• "Netiquette" means generally accepted standards for use of the Internet such as but not limited to sending bulk unsolicited e-mail, mail bombing, misrepresenting that you have third party authorisation and impersonating another person;
• "Server" means the computer servers used to provide the Service;
• "Services" means any services supplied or to be supplied by DigiServ™ Technologies cc (which may include without limit E-mail Forwarding, E-mail, POP accounts, e-commerce, Web Site Hosting, FTP access, Domain Name Registration) as described in the quote or acknowledgement of order issued by DigiServ™ Technologies cc or as may be agreed from time to time; and
• "Site" means the Internet web site at www.digiserv.biz.
• "DigiServ™" or "we" means DigiServ™ Technologies cc;

Table of Contents

1. Services
2. Term
   
3. Payments
   
4. Law/AUP
   
5. Customer Information
   
6. Indemnification
   
7. Disclaimer of Warranties
   
8. Limitation of Damages
   
9. Suspension of Services/Termination
10. Cancellations & Money Back Guarantee
11. Request for Customer Information
12. Registration of Domain Names
13. Transfer of Domain Names
14. Obligations of the Customer
    
15. Back Up Copy
16. Changes to DigiServ™ Technologies cc's Network
    
17. Notices
    
18. Force Majeure
19. Intellectual Property
20. Privacy
21. Cookies
22. Foreign Jurisdiction
23. Virus Scanning, SPAM Filtering & Permanent Deletion
24. Governing Law/Disputes
25. Miscellaneous
26. Right to Refusal Without Cause
    
    
    

1. Services.

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of DigiServ™ Technologies cc’s credit approval requirements, DigiServ™ Technologies cc agrees to provide the services described in the Order for the fees applicable to the service.

The Services shall be as described in the Site and such other material as DigiServ™ Technologies cc provides to you from time to time such as without limit the CIS. We reserve the right at any time and from time to time to amend, improve, correct, discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice and you agree that DigiServ™ Technologies cc shall not be liable to you or to any third party for any such modification, suspension or discontinuance. We will restore the Service as soon as reasonably practicable after temporary suspension.

2. Term.

The initial service term of the Agreement shall begin on the date that DigiServ™ Technologies cc generates an e-mail message to the Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a “Renewal Term”) unless DigiServ™ Technologies cc or the Customer provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term”.

3. Payments.

1. Fees.
   Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, quarterly, semi-annual, annually or biennial as indicated on the Order, beginning on the Service Commencement Date. DigiServ™ Technologies cc may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, the Customer authorizes DigiServ™ Technologies cc to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise DigiServ™ Technologies cc will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or 30 days prior to the due date of each billing cycle, and the fees shall be due on the due date.
   
   Payments must be made in South African Rands. The Customer is responsible for providing DigiServ™ Technologies cc with changes to billing information (change in billing address). It is of the essence of the Contract that all amounts due by the Customer under the Contract are paid on time. You shall be responsible for any and all expenses incurred by DigiServ™ Technologies cc in recovering overdue amounts. DigiServ™ Technologies cc may charge interest on overdue amounts at a rate of 5% per month until the outstanding balance is paid in full. DigiServ™ Technologies cc may suspend the service without notice if payment for the service is overdue. Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. The Customer agrees to pay DigiServ™ Technologies cc’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay DigiServ™ Technologies cc’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
   
   Payment shall only be deemed received by DigiServ™ Technologies cc upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any services.
   
   Where the Services include or consist of registration of domain name services, DigiServ™ Technologies cc shall be entitled to raise an invoice for payment by the Customer and for the hosting of that domain name specifying the date by which payment by the Customer must be made. Failure for any reason by the Customer to make payment before the specified date will entitle DigiServ™ Technologies cc to release the Customer's domain name without any liability or loss suffered by the Customer howsoever arising.
   
   ADSL accounts are not billed pro-rata, any ADSL account purchased and activated on any day of a month will be subject to the full purchase amount, data will be reset from the 1st of each month and billing for service is in advance (Excludes ADSL Top Up).
   
   All account enquiries must be done via email or alternatively via Fax or registered post. Enquires via Telephone will not be accepted. No account queries will be entertained once the service has been cancelled.
   
   
2. Payment via Debit Order and Credit Card
   The Customer agrees that submission of bank account information to DigiServ™ Technologies cc constitutes authorisation by the Customer for DigiServ™ Technologies cc to debit the specified bank account for all fees owed by the Customer to DigiServ™ Technologies cc.
   
   The debit orders normally run on the 1st working day of each month. The debit order system closes on the 25th of each month. All account changes should reach us by the 23rd of each month.
   
   The Customer is responsible for all bank fees, penalties or levies that are as a result of the use of a debit order. This includes any fees the bank may charge the Customer as a result of the Customer having insufficient funds at the time the debit order is presented.
   
   DigiServ™ Technologies cc normally runs one monthly debit order per domain name. Debit orders that were combined into a single debit upon The Customer's request will be "un-combined" upon the combined debit being returned.
   
   DigiServ™ Technologies cc will charge an administration fee for all declined credit card transactions, all returned debit orders and all returned cheques irrelevant of the reason for the debit order or cheque being returned or the credit card being declined. The administration fee is currently R75, and is subject to change without notice. Customers' with a combined debit order will incur an administration fee for each domain included in the combined debit. If an account holder charges back for services rendered, a R200 charge back fee will be added to the amount charged back by the customer.
   
   
3. Online Credit Card Gateway
   At the time of placing the order and payment, the transaction details are presented to the bank and an authorization is obtained for the amount of the order. Payment is only collected when the order is completed. Netcash establishes an SSL3 secure link with the browser and presents the next page which contains the DigiServ™ Technologies cc logo and displays the reference number, description of the goods and the amount provided by DigiServ™ Technologies cc. It also contains fields for the cardholder to enter the necessary card details.
   
   No credit card details are stored on the website or in any database.
   
   Credit card transactions will be processed through Netcash ’s secure payment gateway. For more information on Netcash please click on the logo below:
   
   
   
   
4. Fee Increases.
   DigiServ™ Technologies cc may increase its fees for services from time to time with or without prior notice, should market trends or the exchange rate change. This price increase will be effective on the first day of a Renewal Term and if the Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
   
   
5. VAT.
   All prices advertised on the Site includes VAT of 14%. Where the Customer resides outside of the Republic of South Africa the VAT on all sales will be charged at 0%.
   
   
6. Early Termination.
   The Customer acknowledges that the amount of the fee for the service is based on the Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event DigiServ™ Technologies cc terminates the Agreement due to the Customer’s breach of the Agreement in accordance with Section 9 (Termination), or the Customer terminates the service other than in accordance with Section 9 (Termination), the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day of termination of the Agreement.

4. Law/AUP.

The Customer agrees to use the service in compliance with applicable law and DigiServ™ Technologies cc’s Acceptable Use Policy posted at http://www.digiserv.biz/legal/aup.php (the “AUP”), which is hereby incorporated by reference in this Agreement. The Customer agrees that DigiServ™ Technologies cc may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Customer’s use of the Services. Amendments to the AUP are effective on the earlier of DigiServ™ Technologies cc’s notice to the Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. The Customer agrees to cooperate with DigiServ™ Technologies cc’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between DigiServ™ Technologies cc and the Customer regarding the interpretation of the AUP, DigiServ™ Technologies cc’s commercially reasonable interpretation of the AUP shall govern.

5. Customer Information.

The Customer represents and warrants to DigiServ™ Technologies cc that the information he or she has provided and will provide to DigiServ™ Technologies cc for purposes of establishing and maintaining the service is accurate. If the Customer is an individual, the Customer represents and warrants to DigiServ™ Technologies cc that he or she is at least 18 years of age. If the Customer is not at least 18 years of age, a parent or guardian's name must be put on the account and will be responsible for payment and Web Site content. If a minor (a person under the age of 18) obtains an account through DigiServ™ Technologies cc without parental approval, this agreement becomes void. DigiServ™ Technologies cc may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to the Customer’s account until the Customer has provided a written notice changing the Primary Customer Contract.

Where appropriate, you agree to provide such information about yourself as prompted by the Service's registration form and ensure that it is at all times true, current, accurate and complete. If it is not or we reasonably suspect it is not true, current, accurate and complete, we shall be entitled to terminate the Contract or suspend the Services until such time as we determine.

6. Indemnification.

The Customer agrees to indemnify and hold harmless DigiServ™ Technologies cc, DigiServ™ Technologies cc’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the Customer’s services in violation of applicable law or the AUP by the Customer or any person using the Customer’s log on information, regardless of whether such person has been authorized to use the services by the Customer.

7. Disclaimer of Warranties.

DIGISERV TECHNOLOGIES CC DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW DIGISERV TECHNOLOGIES CC DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

8. Limitation of Damages.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF DIGISERV TECHNOLOGIES CC AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension/Termination.

1. Suspension of Service.
   The Customer agrees that DigiServ™ Technologies cc may suspend services to the Customer without notice and without liability if: (i) DigiServ™ Technologies cc reasonably believes that the services are being used in violation of the AUP; (ii) the Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) DigiServ™ Technologies cc reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. The Customer shall pay DigiServ™ Technologies cc’s reasonable reinstatement fee if service is re-instituted following a suspension of service under this subsection.
   
   
2. Suspension of Service Due To Non Or Late Payment
   Failure to settle all amounts within 2 days of the due date may result in withholding of further Services and/or suspension of existing Services. Accounts which are delinquent will be placed on "administrative hold" or suspension and may not be used or accessed. Any account that is delinquent for fourteen (14) days will have all files purged from all DigiServ™ Technologies cc servers. The Customer's account will then be terminated and all information (such as but not limited to all web site files, all email accounts and emails) will be removed from DigiServ™ Technologies cc servers and backups.
   
   The Customer is still responsible for the monthly hosting fee while the site is suspended. Furthermore if the account has been terminated due to non-payment and the Customer wishes to reinstate this account the Customer is subject to a minimum of a six (6) months subscription and a reactivation fee of R55.
   
   DigiServ™ Technologies cc may temporarily deny service or terminate this Agreement upon the failure of the Customer to pay charges when they become due. Such termination or denial will not relieve the Customer of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
   
   Accounts which are overdue for 90 days will incur a R200 penalty fee added to the balance previously due.
   
   In the event of non-payment, you agree to DigiServ™ Technologies cc's right to place a "non-payment" page on your domain. Furthermore you agree that DNS of your domain will remain unchanged until full payment for the outstanding balance on your account has been received by DigiServ™ Technologies cc.
   
   DigiServ™ Technologies cc may record and transmit details of how the Customer has performed to a Credit Bureau, and how the account is conducted by the Customer in meeting their obligations on the account.
   
   DigiServ™ Technologies cc will not be held responsible for any damages, losses or claims as a result of a site being suspended.
   
   Un-suspensions may take one or more working days.
   
   
3. Termination.
   The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if DigiServ™ Technologies cc fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of the Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by DigiServ™ Technologies cc prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon fourteen (14) days from due date if the Customer is overdue on the payment of any amount due under the Agreement; (ii) the Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within twenty four (24) hours of a written notice from DigiServ™ Technologies cc describing the violation in reasonable detail; (iii) upon one (1) days notice if the Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if the Customer violates Section 5 (Customer Information) of this Agreement.
   
   Immediately by either party if the other shall convene a meeting with its creditors or if a proposal shall be made for a voluntary arrangement within part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme of arrangement with (or the assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or any other steps are taken for the winding up or the making of an administrative order (otherwise than for the purposes of a solvent amalgamation or reconstruction).
   
   Upon termination or expiry of the Contract all amounts payable by the Customer to DigiServ™ Technologies cc shall become immediately due and DigiServ™ Technologies cc shall be entitled to immediately cease the provision of the Services.

10. Cancellations, Refunds & Money Back Guarantee.

1. Cancellations.
   Customers may cancel their services at any time by logging into our Client Area and visiting "Cancel Plan" . We, DigiServ™ Technologies cc, reserve the right to cancel your hosting account for any reason we deem as just in accordance with, but not limited to, this Terms of Service Agreement and Acceptable Use Policy.
   
   A cancellation will only be effected upon the Customer settling the outstanding account via debit order, cash deposit or bank transfer. A cancellation request must include the reason for cancellation, instructions as to the disposal of the domain name and must indicate the date until which service is required. A cancellation will not be accepted from any third party. The cancellation must be from the person (individual or legal person) who signs (electronically) DigiServ™ Technologies cc’s service order and set up form (the “Order”).
   
   Any cancellation request that does not fulfil these criteria shall not be deemed valid.
   
   
2. Refunds.
   No credit or refund will be passed in any form except as stated in the "99.9% Uptime" or "30 Day Money Back Guarantee" documents.
   
   All deposits, set-up fees (if any) and domain name registrations paid to DigiServ™ Technologies cc are non-refundable.
   
   No credit or refund will be passed for inactive or unused accounts. No credit or refund will be passed should the Customer transfer their domain away from DigiServ™ Technologies cc during the cancellation notice period. No credit or refund will be passed for domain names where the Customer has requested the incorrect domain name to be registered.
   
   Refund administration fee of R100 will be charged to an account.
   
   

1. Money Back Guarantee.
   DigiServ™ Technologies cc offers a risk free, 30 day money back guarantee on all shared and reseller hosting plans. Under no circumstances are there to be refunds for any setup fees, administrative fees, or domain registration fees.
   
   All refund requests after the initial 30 days of service will not be refunded. DigiServ™ Technologies cc reserves the right to null and void the money back guarantee for any violation of this Terms of Service Agreement, Acceptable Use Policy, or any reason deemed as just by DigiServ™ Technologies cc.
   
   Only first-time signup's will be allowed to utilize our 30 day money back guarantee. For example, if you have had an account with DigiServ™ Technologies cc, cancelled and signed up again, you will not be allowed to utilize our money back guarantee. This also applies for current customers who sign up for a second account.

11. Requests for Customer Information.

The Customer agrees that DigiServ™ Technologies cc may, without notice to the Customer, (i) report to the appropriate authorities any conduct by the Customer or any of the Customer’s customers or end users that DigiServ™ Technologies cc believes violates applicable law, and (ii) provide any information that it has about the Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

12. Registration of Domain Names.

The following shall apply where the Services include or consist of domain name registration services:

1. The Customer acknowledges that, whilst DigiServ™ Technologies cc shall use its reasonable endeavours to successfully register the requested domain name, DigiServ™ Technologies cc shall not be obliged to accept any request to register or continue to process any registration of a domain name.
   
   
2. The obligations of DigiServ™ Technologies cc in relation to the domain name registration shall be limited to forwarding the application to the relevant naming authority, providing reasonable administration services in relation to the application and notifying the result of the application within a reasonable period after communication from the authority. DigiServ™ Technologies cc will use reasonable endeavours to notify you of any renewal dates however DigiServ™ Technologies cc accepts no liability for any use or retention of any domain name which is registered.
   
   
3. DigiServ™ Technologies cc makes no representations or warranties (expressed or implied) of any kind (and they are expressly disclaimed) with respect to availability or likelihood of successful registration of any domain name.
   
   
4. The Customer shall check the domain name as reported on any of DigiServ™ Technologies cc's documents sent to the Customer, such as the invoice, customer information sheet or otherwise, is spelt correctly. In the event of any error, the Customer should notify DigiServ™ Technologies cc promptly and in any event within 24 hours of receiving such document.
   
   
5. The Customer shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority and generally to the terms and conditions of any such authority having similar force and to which the client may become subject as a result of services provided by DigiServ™ Technologies cc.
   
   
6. DigiServ™ Technologies cc may from time to time change the registrar that a domain is held with. The Customer agrees to allow DigiServ™ Technologies cc to do so as it sees fit and without notice.
   
   
7. DigiServ™ Technologies cc will not be held liable for any disputes arising out of domain name registrations or hosting on behalf of The Customer.
   
   
8. The Customer is responsible for all yearly domain renewal fees and DigiServ™ Technologies cc will not be held responsible for the payment of domain renewal fees.
   
   
9. DigiServ™ Technologies cc will not refund the Customer for any domain name renewal fee already paid to the relevant registrar.

13. Transfer of Domain Names.

The following shall apply where the Services include or consist of domain name transfer services:

1. The Customer is responsible for accepting the transfer ticket/s of their existing domain name to DigiServ™ Technologies cc. DigiServ™ Technologies cc will attempt to assist the Customer where possible.
   
   
2. If a transfer of a domain name (or DNS information) is not successful on the second attempt, then the onus falls on the Customer to continue with the transfer process.
   
   
3. The Customer is responsible for all costs related to such a transfer.
   
   
4. The Customer is responsible for the hosting fee from the date of set-up on DigiServ™ Technologies cc's servers. DigiServ™ Technologies cc will not refund any hosting fees should the client fail to make the necessary changes to their DNS settings or decide not to make the changes.
   
   
5. The Customer must submit a valid cancellation of the service in the event that the domain name transfer or DNS update fails to complete.
   
   
6. DigiServ™ Technologies cc will not be held responsible for any delays caused by any Registrar.

14. Obligations of the Customer.

The Customer agrees that they shall:

1. immediately notify DigiServ™ Technologies cc if they become aware of any unauthorised use of all or any of the Services and/or Servers;
   
   
2. not use the Services and/or Servers for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit IPRs) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under RSA law or regulation, the laws or regulations of the Customers country or any other place where the results of such purpose or such material can be accessed;
   
   
3. not use the Services and/or Servers for the publication, linking to, issue or display of any material which in the absolute discretion of DigiServ™ Technologies cc may harm DigiServ™ Technologies cc or any of its clients or bring DigiServ™ Technologies cc into disrepute or may call into question any action taken by DigiServ™ Technologies cc on the Customer's behalf;
   
   
4. not use the Services and/or Servers in breach of good Netiquette practices;
   
   
5. ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1984 and 1998;
   
   
6. not provide any technical or other information obtained from DigiServ™ Technologies cc and/or relating to the Services or the Contract to any person, company, firm or government which the Customer knows or ought reasonably be aware may directly or indirectly lead to a breach of any South African law or regulation;
   
   
7. not, in breach of good Netiquette practices, use any service provided by any third party (including without limit an Internet web site and/or e-mail) for the publication, linking to, issue or display of any material which refers to an Internet web site hosted by DigiServ™ Technologies cc or any other services offered by DigiServ™ Technologies cc from time to time;
   
   
8. ensure that all material or data hosted by DigiServ™ Technologies cc on any web site operated by the Customer from time to time or communicated through such site or using the Servers is checked for viruses and other harmful code;
   
   
9. keep back ups of all data hosted by DigiServ™ Technologies cc on any web site operated by the Customer from time to time; and
   
   
10. promptly notify DigiServ™ Technologies cc of any change to its communication address and the Customer acknowledges that DigiServ™ Technologies cc shall not be liable for any costs, damages or loss which the Customer may suffer or incur as a result of failure to notify such changes to DigiServ™ Technologies cc.

The Customer acknowledges that in order to make proper use of the Services they should have a basic knowledge of how the Internet functions and what types of use are and are not acceptable. The Customer acknowledges that DigiServ™ Technologies cc shall have no obligation to:

1. manipulate any material which the Customer wishes and/or does post on any web site it operates or any communication which it issues or sends in connection with any of the Services; or
2. validate or vet such material for usability, legality, content or correctness.

The Customer is responsible for and must provide all telephone and other equipment and services necessary to maintain the customer's account remotely through FTP accounts.

Any Customer in violation of system or network security is subject to criminal and civil liability, as well as immediate account termination. Examples include, but are not limited to the following: Unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, e-mail bombing, flooding deliberate attempts to overload a system and broadcast attacks. Forging of any TCP/IP packet header or any part of the header information in an e-mail or newsgroup posting.

15. Back Up Copy.

The Customer agrees to maintain a current copy of all content hosted by DigiServ™ Technologies cc notwithstanding any agreement by DigiServ™ Technologies cc to provide back up services.

Full backups are made daily, weekly, and monthly. No guarantees are made of any kind, either expressed or implied, as to the integrity of these backups. Backups are made for server restoration purposes only. It is the customers' responsibility to maintain local copies of their web content and any information on their account including but not limited to customers web site, email, databases, mailing lists, and archives. If loss of data occurs due to an error of DigiServ™ Technologies cc, we will attempt to recover the data at no charge to the customer. If data loss occurs due to negligence of the customer in securing their account or by an action of the customer, DigiServ™ Technologies cc will attempt to recover the data from the most recent archive for a R150.00 fee per restore incident.

16. Changes to DigiServ™ Technologies cc’s Network.

Upgrades and other changes in DigiServ™ Technologies cc’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Customer’s hosted content and/or applications. DigiServ™ Technologies cc reserves the right to change its network in its commercially reasonable discretion, and DigiServ™ Technologies cc shall not be liable for any resulting harm to the Customer.

17. Notices.

Notices to DigiServ™ Technologies cc under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on our Contact Us page. Notices to the Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. The Customer may change his or her notice address by a notice given in accordance with this Section.

18. Force Majeure.

DigiServ™ Technologies cc shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond DigiServ™ Technologies cc’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

19. Intellectual Property.

All IPRs relating to the Services provided by DigiServ™ Technologies cc are and shall remain the property of DigiServ™ Technologies cc. All rights in the design and arrangement of the Site, text and graphics and all software compilations, underlying source code, and all other material on the Site are reserved to DigiServ™ Technologies cc or its licensors. Except as expressly provided below, nothing contained in these term of use or on the Site shall be construed as conferring any license or right, by implication, estoppel or otherwise, under copyright or other IPRs.

Shadow Web Designs, DigiServ™ Technologies cc, DigiServ™ DomainZ, and all other names, images, pictures, logos and icons identifying DigiServ™ Technologies cc or its services are trademarks of DigiServ™ Technologies cc in South Africa and other countries. Other product and company names mentioned on this Site may be trademarks of their respective owners.

20. Privacy.

The information you provide to us will be stored on computer. We are committed to protecting your privacy. We and any of our associated companies may use the information you provide us to provide a more personalised service and to tell you about changes in our and their service or any new services which we think you will find valuable. If you object to any of these uses at any time, then please inform us by writing to DigiServ™ Technologies cc at the address set out in the "contact us" section at the Site. We may also use such information where and to the extent of any requirement to comply with any applicable law, legal process or to enforce any of these Conditions.

We will not monitor, edit or disclose the contents of any private communications transmitted via the Servers unless required to do so by law or in the good faith belief that such action is necessary to conform or comply with applicable law, to protect and defend the rights and/or property of DigiServ™ Technologies cc or to protect the personal safety of any of our clients or the public.

21. Cookies.

Cookies are bits of electronic information that a web site can transfer to your hard drive to help tailor and keep records of your visit to the Site. Cookies allow us to better customise visits to the Site to your individual preferences, helping us provide you with the best possible service on our Site. Most major web sites use cookies and their use is standard on the Internet. Most Internet browsers automatically accept cookies but you can change your settings so that you are notified whenever you are sent a cookie.

22. Foreign Jurisdictions.

The Site may contain references or cross references to services that are not available in every country. We do not represent that all Services and content, materials and services on the Site are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Your access to the content, materials and services on the Site from such locations is at your own initiative and we are not responsible for your compliance with local laws or other applicable laws. You will not access the foregoing if prohibited by law.

Any translation of these Conditions into a language other than English is for the convenience of the Customer only and it is agreed that the English language version of these Conditions at http://www.digiserv.biz/legal/terms.php shall be relied on by the parties and shall prevail in the event of any differences.

23. Virus Scanning, SPAM Filtering, and Permanent Deletion.

The Customer's use of the Services is at the Customer's sole risk. DigiServ™ Technologies cc is not responsible for the security or integrity of any information stored with DigiServ™ Technologies cc and associated with the Customer's account.

The Customer undertakes full responsibility for the integrity of all files and information communicated via the Services, and the Customer will ensure and maintain appropriate backup facilities of files and information stored on DigiServ™ Technologies cc servers.

The Customer acknowledges that, upon the termination of this Agreement for whatsoever purpose, DigiServ™ Technologies cc shall be entitled to permanently remove your information from it's servers within a reasonable period. DigiServ™ Technologies cc accepts no liability for the permanent deletion thereof.

As a responsible party facilitating access to the Internet and associated protocols, DigiServ™ Technologies cc has a virus scanning and spam filter activated by default. In the unlikely event that “false positives” (a legitimate message mistakenly marked as spam) occur, DigiServ™ Technologies cc will not be held liable for any direct, indirect or consequential loss, should legitimate information incorrectly be identified as spam or a virus, and filtered out.

24. Governing Law/Disputes.

The Agreement shall be governed by the laws of the Republic of South Africa (excluding its choice of law rules). EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN SOUTH AFRICA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

25. Miscellaneous.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in it's trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trademark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. The Customer may not transfer the Agreement without DigiServ™ Technologies cc’s prior written consent. DigiServ™ Technologies cc’s approval for assignment is contingent on the assignee meeting DigiServ™ Technologies cc’s credit approval criteria. DigiServ™ Technologies cc may assign the Agreement in whole or in part.

Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver.

Any notice or other communication to be given by a party under this Agreement must be in writing and must be given by delivery at or sending by first class post or by E-mail or facsimile transmission to the last known postal, E-mail address or relevant telecommunications number of the other party. Notices shall be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it shall be sufficient to show it was dispatched. A notice shall have been effect from the sooner of its actual or deemed receipt by the addressee.

Any termination of this Agreement shall be without prejudice to any other rights or remedies which a party may be entitled to hereunder or at law and shall not effect any previous rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into continue in force upon or after such termination.

If any provision of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the provision shall be deemed to be severable from the remaining provisions and shall not affect their validity or enforceability.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replaces any prior understanding or communication, written or oral.

26. Right to Refusal of Service.

DigiServ™ Technologies cc may refuse to accept any customer or any web site for participation in the DigiServ™ Technologies cc Hosting Network as determined by DigiServ™ Technologies cc at its sole discretion.

This Terms of Service Agreement together with the Order and Acceptable Use Policy constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replaces any prior understanding or communication, written or oral.

(Last Updated: 21 April 2008)