Terms and Conditions:

Please find our terms and conditions related to our service providers below:

Bizcon Solutions:

BIZCON’S GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES TO CUSTOMERS

This rental agreement also falls outside the ambit of the National Credit Act No. 34 of 2005

 

  1. APPLICABILITY

User hereby hires from the Hirer, which hereby rents, subject to the terms and conditions set out herein and in the schedule/s which is are or may, from time to time, be annexed hereto, the goods described in the schedule/s for the rentals payable as set out in the schedule. The conditions of this master agreement shall apply equally to each and every schedule which the  parties may enter into and the goods described in each such schedule shall be rented according to the conditions of this master agreement as if the conditions of this agreement were incorporated in each and every such schedule. The conclusion by the parties of each schedule shall create a separate and independent agreement in respect of the goods described in such schedule.  All payments and any other payments owing in terms of this agreement, shall be made without demand and will not be subject to any set-off, counterclaim and shall be made without deduction of any nature.

  1. OWNERSHIP

Ownership of the goods shall vest in the Hirer and nothing in this agreement shall be construed as conferring on the User or any other person on its behalf any right, title or interest in the goods other than as User. The User shall not acquire ownership on the delivery or during or after the termination of this agreement.

  1. JOINT LIABILITY

If two or more Users sign this agreement, their liability shall be joint and several. If this agreement is not signed by all persons named as Users or by all partners of User (if a partnership) this agreement shall nonetheless be and remain binding on Users who have signed this agreement or on User being a partnership (as the case may be).

  1. WARRANTIES, GUARANTEES AND DECLARATIONS

4.1 The User warrants, such warranties being material and going to the root of this agreement, that all information

supplied to the Hirer by the User or anyone on its behalf concerning the User’s business in whatever form, is trueand correct in all material aspects, in particular, all information so supplied to the Hirer during its investigation prior to the commencement date including balance sheets, income statements, cash flows, profit forecasts and other financial statements or accounts. The User further warrants that all such information as may be presented to the Hirer will be true at the relevant time and will remain true and correct in every material aspect.

4.2 The goods have been acquired by the Hirer at User’s request and solely for the purpose of renting the goods to User. The goods and the supplier have been selected by User who has also negotiated the specifications, warranties and guarantees required by it with the supplier. Hirer makes no warranties or representations whatsoever whether expressed or implied to User as to the condition of the goods for any purpose whatsoever and the goods are rented as is by User.

  1. DELIVERY AND ACCEPTANCE

5.1  Signature by User of the acceptance certificate shall be deemed to be an acknowledgement that User has inspected and approved the goods and that same are in every way satisfactory to User.

5.2  User shall, at its own cost, procure and take delivery of the goods. The User shall accept the goods on

Hirer’s behalf so that ownership of the goods shall pass to Hirer and shall hold the goods on behalf of the

Hirer for the duration of the agreement.

5.3  User shall be deemed to accept the goods on behalf of the Hirer when the goods are delivered by the supplier to the User and User acknowledges that the goods are delivered by the supplier thereof to the User acting as receiving agent on behalf of Hirer.

5.4  User shall have no claim against the Hirer nor shall User be entitled to cancel this agreement if after having signed the schedule and acceptance certificate it subsequently transpires that the goods or any part thereof are for any reason unacceptable to User.

  1. MAINTENANCE

It is recorded that this agreement applies only to the hiring of the goods and that the rentals stipulated in the schedule do not  include  any  payment  in  respect  of  maintenance.  The parties  specifically  agree  that  any maintenance agreement in respect of the goods is a separate and distinct agreement from this agreement and the renewal or cancellation of such maintenance agreement shall not affect the terms of this agreement. User shall not  be  entitled to  withhold  compliance  with  its  obligations  under  this  agreement  because  of  any  dispute  in relation  to  the  maintenance  agreement  and/or  because  of  any  non-performance  in  terms  of  the  maintenance agreement.

  1. VARIATION IN RENTALS

7.1  For all purposes of this agreement, prime shall mean the publicly quoted basic rate of interest per annum at which Hirer’s bankers will lend on overdraft, as certified by a manager of the said bankers, whose appointment it shall not be necessary to prove.

7.2 The rentals payable in terms of this agreement and the schedule/s are based on prime. Should prime increase during the term of this agreement, Hirer may at its discretion, with effect from date of such increase, adjust the rentals payable in terms of this agreement. This adjustment is in addition to the annual increase of the rentals as stipulated in the schedule/s.

7.3  If so required by Hirer, User shall complete and deliver to Hirer a bankers debit order document in such form as Hirer may require for purpose of payment of future rentals, and/or any other sums payable under this agreement. The debit order shall not be construed or regarded as substituting, varying or novating Users obligations under the agreement. Notwithstanding a foregoing, Users signature hereto constitutes Users authority to Hirer or its cessionary/ies to draw against Users bank account, wherever it may be, all amounts due in terms of this agreement.

7.4  In the event of any change in any law or regulation or in the interpretation thereof, resulting in an increase to

Hirer in any cost factor in providing or maintaining this agreement, Hirer shall be entitled to increase the rental payments by such amount as necessary in order to recover such increased cost.

7.5  User acknowledges that in terms of Value Added Tax Act, value added tax (VAT) at the prevailing rate as at date of signature hereto has been included in each rental. In the event of any change in the rate at which VAT is payable and/ or in the amount of VAT payable in respect of the rental payments, the rentals which fall due on or after the date of the said change shall be recalculated accordingly and the said recalculated rentals shall substitute the rentals which were calculated at the old rate.

7.6  Any dispute relating to any adjustment in terms of 7.2, 7.4 and 7.5 shall be referred to any partner of Hirer’s

auditors who shall act as an expert and whose decision will be final and binding on the parties hereto.

  1. INSURANCE

8.1  User shall insure the goods for the duration of this agreement with a registered insurer and / or through an intermediary both of User’s own choice, on a comprehensive basis for the replacement value plus VAT, under an insurance policy. The User shall ensure that the Hirer’s interests are endorsed on the said policy/ies, and shall at all times comply with all the terms and conditions of such policy/ies. User hereby cedes to the Hirer as security for its obligations under this agreement all its right, title and interest in and to said policy/ies. In the event of the User failing to furnish the Hirer with proof of such insurance or in the event of the policy/ies becoming of no force or effect for any reason whatsoever the Hirer shall be entitled (but not obliged) to insure the goods and to reclaim the amount of such premiums and / or excesses from

the User upon demand.

8.2  User shall notify Hirer immediately in writing if the goods or any part thereof are lost, stolen or damaged and shall do all that is necessary for the successful submission of a claim to the insurers.

8.3  If any of the goods, rented in terms of this agreement, are lost or stolen and not recovered within a period of

21 (twenty-one) days after such loss or theft or, in the Hirer’s sole discretion, are damaged beyond repair, this agreement shall terminate forthwith in respect of such goods, provided that such goods may, at Hirers election, be replaced in which event this agreement shall apply equally to such replacement goods.

8.4  On termination of this agreement in terms of 8.3 the User shall forthwith pay to the Hirer all rentals which would have fallen due in terms of this agreement from the date of termination until the earliest possible date on which this agreement could have terminated by notice, together with any / all other amounts due.

8.5  User confirms that it was given prior written notice of its entitlement of free choice in terms of Section 43 (1) of the Short Term Insurance Act 53 of 1998 and has exercised that freedom of choice and was not subjected to any coercion or inducement as to the manner in which it exercised that choice.

 

  1. BREACH

If User defaults in the punctual payment of any monies as it falls due in terms of this agreement; or fails to comply with any of the terms and conditions of, or its obligations under this agreement; or commits any act of insolvency, or being a natural person, assigns, surrenders or attempts to assign or surrender his estate; or allows a default judgement to remain unsatisfied for a period of seven days or be refused recission within fourteen days of any default judgement, or is sequestrated or placed under judicial management or wound up, whether provisionally or finally; or abandons the goods; or compromises with any of its creditors or endeavors or attempts to do so; or makes any incorrect or untrue statement or representations in connection with this agreement or User’s financial affairs or any particulars relevant thereto; or breaches any warranty given in terms of this agreement; or does or allows to be done any-thing that might prejudice Hirers rights, under this agreement, then and upon the occurrence of any of these events Hirer may elect without prejudice to any of its rights to;

9.1 Immediately terminate this agreement, take possession of the goods, retain all amounts already paid by User

and claim all amounts which are in arrears at date of termination together with as pre-estimated liquidated damages, the future rentals which would have fallen due in terms of this agreement from the date of termination until the end of the period stipulated in the schedule on which this agreement could have terminated by notice, or;

9.2  Without terminating this agreement, claim immediate payment of all amounts which are due and/or all rentals which would have fallen due in terms of this agreement until the earliest possible date on which this agreement could have terminated by notice, all of which shall be immediately due and pay-able. The Hirer shall, pending payment of those amounts, be entitled to be possessed of the goods and to retain possession thereof on condition that against such full payment the Hirer shall return the goods or similar goods to the User who shall not be entitled to any rebate or abatement of rentals of other amounts by reason of its loss of possession.

9.3  User shall pay the Hirer interest on any amounts owing in terms of clause 9.1 and 9.2 at 6% above the publicly quoted prime interest rate of the Hirer’s bankers at the nominal annual rate compounded monthly. Said interest shall accrue from due date for payment to date of payment receipt by Hirer.

9.4  Hirer may appropriate any payments made by or on behalf of User to any indebtedness of whatsoever nature of User to Hirer.

 

  1. CESSION OR ASSIGNMENT

10.1 Hirer may, without notice to User, assign and/or transfer all or any parts of its right, title and interest in

and to this agreement and/or ownership of the goods to any person or legal person whatsoever and unless the context otherwise indicates, any reference to Hirer in this agreement shall be deemed to include its cessionary/ies or delegate

10.2 The Hirer hereby cedes to the User who accepts cession thereof, all claims which the Hirer may have against the Suppliers of the Goods and all components thereof and the suppliers of all services in connection therewith arising out of any express or implied guarantee, warranty or undertaking as to the condition state or quality of the goods or any part thereof or as to the fitness or suitability thereof for any purpose whatsoever or arising out of any latent or patent defect in the goods.

10.2.1 The cession in terms of 10.2 operates as a complete and absolute discharge of any liability of the Hirer to the User in respect of any corresponding claim which is not excluded by this agreement.

10.2.2 Nothing contained in this agreement shall derogate from the User’s obligations in terms of this agreement notwithstanding that it may

have no right against the suppliers of the goods or components thereof or of services in connection therewith in terms of any of the

Hirers rights ceded to the User in terms of this agreement.

10.2.3 The Hirer makes no warranties or representations as to the validity or enforceability of any right it may have against any of

the suppliers.

10.2.4 The cession of rights against the suppliers in terms of this clause shall by its very nature terminate on termination of this agreement and the rights hereby ceded shall on the face of it be deemed to have been receded by the User to the Hirer.

10.3 Insofar as a cession may create a splitting of claims, the User herewith consents thereto.

  1. CERTIFICATE

A certificate signed by any manager of Hirer (whose appointment need not be proved by Hirer) as to any amount due and/or owing by User in terms of or arising out of this agreement shall be prima-facie proof of the matters therein stated for all purposes.

  1. RETURN OF GOODS ON TERM BY NOTICE

12.1 User shall, on termination of this agreement by notice, return the goods together with all applicable documents to Hirer at User’s

cost and expense.

12.2 Upon the return of the goods, per 12.1, User shall have no further right or interest in the goods.

12.3  Notwithstanding the provisions of this agreement should User, in breach of its obligations, fail to return the goods on termination of this agreement, then in addition to any other claims that Hirer may have against User pursuant thereto, User shall be liable to continue to pay the rentals to Hirer as if the agreement had not been so terminated.

12.4  This agreement commences on the commencement date set out in the schedule and shall continue indefinitely until terminated by either of the parties giving the other one calendar month’s written notice of termination, provided that, no notice may be given to expire before the effluction of the Initial rental period stipulated in the schedule.

  1. USE OF GOODS

13.1  User shall at all times keep the goods in its possession and under its control and shall take reasonable care in the use of goods. User shall at its own expense maintain the goods in proper working order and keep the goods free from attachment, hypothec, or other legal charge or process. User shall not sell, let, loan, pledge, transfer or otherwise encumber or alienate the goods in any way or permit any lien to arise in respect of the goods, and shall not cede, assign or delegate any of its

rights or obligations in terms of this agreement. The goods shall be operated at User’s cost and controlled only by properly trained, licensed and qualified persons. User shall comply with the specification, instructions and recommendations of the manufacturer for the operation, service, maintenance and/or repair of the goods or any part thereof.

13.2  User may not materially alter or modify the goods. Any part or accessory added to the goods shall become the Hirer’s property

without any compensation.

13.3  User shall at reasonable times permit the Hirer or its representative to inspect the goods.

13.4  User shall at its own expense apply for licenses, certificates, consents or exemptions that may be required for or in connection with ownership or use of the goods.

13.5  User admits and agrees that the goods are movable and are installed with the purpose that the goods shall remain movable and that they shall under no circumstances accede to any property.

13.6  User shall have the rights to upgrade the goods or any part thereof, subject to Hirer’s or its Cessionary/ies prior written consent thereto.

 

13.7 The goods shall not, without the Hirer’s prior written consent, be removed from outside the boundaries of the Republic of South Africa.                                                                                                          

 

  1. NOTIFICATION TO LANDLORD

The goods will be kept at the address stated on this agreement and User shall forthwith upon signature of this agreement notify Hirer in writing the name and address of any other premises to which the goods are moved and of the name and address of the owner of such premises. User shall also notify Hirer immediately of any changes that may occur from time to time in the leasehold or ownership of the premises upon which the goods may from time to time be installed or kept. User is obliged to obtain the required permission for the installation of the goods on the premises referred to.

  1. ENTIRE AGREEMENT

15.1  No relaxation or indulgence granted by the Hirer to User shall be regarded as a renunciation of any of the Hirer’s rights and

shall not in any way prevent the Hirer from enforcing such rights. This agreement is the entire and complete agreement between the parties. No agreement differing from the terms and conditions of this agreement shall be of any force or effect unless it is in writing and signed by the parties of this agreement.

15.2  Insofar as certain identification details are not known on the signature date the Hirer is authorised to complete the schedule/s when such details become known and User agrees that details so completed shall be binding on User.

  1. APPLICABLE LAW

This agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa.

  1. JURISDICTION AND COSTS

17.1  User consents to the jurisdiction of the magistrate’s court having jurisdiction over its person, irrespective of the amount in dispute. Should Hirer choose to institute action in any other court, Hirer shall not be limited to recovering costs on the magistrate’s court scale.

17.2  In the event of the Hirer instructing its attorneys to take steps to enforce any of its rights under this agreement, User shall pay to the Hirer on demand such collection charges and other legal costs on an attorney and own client basis which shall be lawfully charged by the attorneys.

  1. DOMICILIUM

The User chooses domicile for all purposes at User’s address as stated on this agreement. User may change its domicile by written notice delivered by hand or sent by registered post to Hirer. Any notice delivered by hand or sent by registered post to User’s domicile shall be deemed to have been received on date of delivery, if delivered by hand, or on the seventh day of posting,  if sent by registered post.

  1. ACKNOWLEDGEMENT

The User consents to the Hirer or its cessionary/ies making enquiries about the User’s credit record with any credit reference agency and any other party to confirm the details on this application. The Hirer or its cessionary may also provide credit reference agencies with regular updates regarding how the User manages its account including their failure to meet agreed terms and conditions. The User consents that credit reference agencies may, in turn, make the records and details available to other credit  grantors. The Hirer or its cessionary/ies may also give this information to any person, who, in its opinion, needs it to carry out any of the Hirer or its cessionary/ies’ rights or duties in terms of the contract or any law pertaining to the products the User has requested.

  1. CONNECTIVITY

From the commencement date the rental payable shall include and the User shall receive from the Hirer a monthly connectivity credit (“Airtime”) to the agreed for a maximum amount of Airtime of agreed for fair use in terms of the Hirer’s fair use policy from time to time as provided on its website. Upon depletion of the said value of the Airtime or  expiry of the said minutes of Airtime, whichever may occur first, the User shall be liable to pay 0.41cent per airtime minute per second utilized as recorded by the Hirer, in addition to the rental payable under this  Agreement.  Neither the Hirer  nor its  cessionary/ies  or the supplier  of the  equipment  can  be  held liable for additional peripheral connections such as Voice & Data, Carbon Networks, Telkom Lines, Neotel Lines and/or the like. The failure of the aforesaid peripherals shall not absolve the User from payment of the rental under this Agreement.

 

GUARANTEE TERMS AND CONDITIONS

  1. I/ We the do hereby bind myself/ourselves jointly and severally as co-principal and for the primary continuing obligation for the proper and punctual payment by the User to the Hirer or its cessionary/ies of all amounts whatsoever due and owing arising out of or incidental to this agreement and the schedule/s thereto and all and any other indebtedness to Hirer, whether actual or contingent, present or future and howsoever arising (the “Guaranteed Obligations”);
  2. I/ We agree as a separate, additional, primary and continuing obligation to indemnify Hirer or its cessionary/ies from time to time on demand, from and against all and any loss or damage incurred by Hirer or its cessionaries as a result of or pursuant to any of the Guaranteed Obligations being or becoming void, voidable, unenforceable or ineffective for any reason whatsoever, whether or not known to Hirer or its cessionary/ies, the amount of such loss being the amount which Hirer or it cessionary/ies would otherwise have been entitled to recover from the User in terms of this agreement or the schedules thereto;
  3. I/We undertake to pay the amounts referred in clause 1 above plus accrued unpaid interest (including any default interest) in terms of this agreement and any other amounts owing to Hirer or its cessionary/ies in terms of this agreement and any schedules thereto at a rate of 6 (six) percent per annum above the prevailing publicly quoted base rate of interest per annum at which any one of Hirer’s bankers will lend on overdraft (“prime”).
  4. I/ We acknowledge having received a copy of the aforewritten agreement and the schedules hereto and confirm I/ we are aware of the terms thereof;
  5. I/ We shall promptly provide Hirer or its cessionary/ies with such information which is in my/ our possession concerning me/us as

Hirer or its cessionary/ies may from time to time reasonably require;

  1. I/ We shall ensure that my/ our liabilities under this Guarantee will rank at least equal in point of priority in point of priority and security with all such other present or future debts (both actual and contingent) which are secured to the same extent as such liabilities hereunder;
  2. I/ We renounce the benefits of excussion, division and cession of action, the nature and extent of which I/We acknowledge myself ourselves to be aware;
  3. No extension of time or indulgence that may be granted to User in the aforewritten agreement at any time, nor any release of

any other security or guarantee shall in any way affect my/our liability hereunder;

  1. I /We consent to the jurisdiction of the Magistrate’s Court provided Hirer shall be entitled to institute action in any division of the High

Court of South Africa jurisdiction;

  1. I/ We agree to make payment of any legal costs that may be awarded against me/us on an attorney and own client scale;
  2. I/ We choose as my/ our domicile for all purposes arising out of this guarantee, the address/es as set out below;
  3. I/ We indemnify and hold Hirer and it cessionary/ies in the event of a cession harmless against any claim arising out of or incidental to the aforewritten agreement, to its breach or its termination for any reason whatsoever;
  4. I/ We warrant and represent that I/ we have received and will continue to receive adequate value for the granting of this guarantee;
  5. I/ We agree that where it is contemplated that more or one person will sign as guarantor, I or any of us who may have signed as

Guarantor shall be bound jointly, irrespective of whether or not the other or others referred to will have executed this document or become bound in terms hereof.

  1. We agree that no termination, cancellation, limitation or variation of my/our obligations in terms of this guarantee shall be of any force or effect unless it is in writing and signed by Hirer or it’s cessionary/ies, in the event of a cession in terms of the aforewritten agreement;
  2. The terms of clauses 11, and 19 of the aforewritten agreement shall apply to this guarantee.

Hostwave:

Introduction:

These Terms of Service (together with the rest of our Agreement) govern our relationship with you.

They include:

  • the duration of our Agreement;
    fees to be paid to Hostwave;
  • when Hostwave is authorised to monitor communications and content;
  • the appropriate and reasonable measures hostwave takes to protect the security of your data and our systems;
  • when hostwave is authorised to suspend or terminate your services;
  • and the process followed when resolving disputes.
 

Summary of our Agreement

Addresses for service: We will use the address you give us as the address to serve legal notices and documents to you.

Acceptance of electronic invoicing: By placing an order through our website, you agree to accept electronic invoices from Hostwave for the purpose of claiming input tax.

Acceptable Use Policy: You must read and comply with the Acceptable Use Policy that relates to your use of our Services.

Changing of service: We may change the features or functionality of any Service over time.

Commencement: The Agreement will start when Hostwave provides you with a username and password.

Governing law: South African law governs our Agreement.

Intellectual property rights: You accept that you will get no rights to our intellectual property on our systems.

Restriction of access to services: If you breach our Agreement, Hostwave may restrict your access to the Services.

Specific Terms: Our Specific Terms go into more detail and address specific issues around our products and are an extension of our Terms of Service. The Specific Terms will apply if there is any conflict of meaning with these Terms of Service. Read the full text of our Specific Terms and Conditions.

Hostwave’s liability to you is limited. This means that we will not be liable to you for any damages or loss that you may suffer as a result of the fulfilment of the obligations under our Agreement.

Your Content: You will retain all your intellectual property rights to any of your content you host with us.

Your Personal Data: Hostwave may keep your Personal Data and use it, for specified purposes. For example: to enable us to collect your debit order payment; as well as our internal marketing and contract administration, unless you specifically tell us that we may not do this. For details see our Privacy Policy.

1. Introduction:

All services delivered by Hostwave are subject to our Agreement.

2. Definitions:

We have given the meanings of some words to be consistent. These words usually begin with a capital letter. Singular words include the plural (and vice versa):

Hostwave – Hostwave Media (Pty) Ltd.

AFSA – The Arbitration Foundation of Southern Africa (or any replacement).

Agreement – These Terms of Service, the Specific Terms, the Acceptable Use Policy, and Privacy Policy.

Controller | Responsible Party – The person or organisation who determines the purpose and means of processing data / personal information.

Customer – Is any natural person or legal entity identified on the application form for Services or in any addendum. A natural person must be the age of 18 (Eighteen) years or older to make use of our Services;

Customer Data – Any username, password or email address we give the Customer as part of the Services. This excludes Customer Domains we manage as part of the Services;

Data Protection Laws – All data protection and privacy laws and regulations applicable to the processing of Personal Data / Information under our Agreement, including:

  • the Protection of Personal Information Act 4 of 2013 (POPIA) in South Africa (effective from 1 July 2020);
  • Regulation (EU) 2016/679 (‘General Data Protection Regulation’ or ’GDPR’);
  • while it remains in force, the Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications (also known as the ePrivacy Directive or ePD);
  • any other applicable laws and regulations relating to the processing of Personal Data / Information and privacy; and
    if applicable, the guidance and codes of practice issued by any relevant data protection commissioner or supervisory authority.

Terms of Service – These general terms of service governing us providing Services to you

Personal Data | Information – Any information about an identified or identifiable natural person (‘Data Subject’) which is processed in terms of any applicable Data Protection Law.

Process or processing – Any operation which is performed on Personal Data including collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Processor | Operator – A Processor is a person or organisation who processes personal data on behalf of a Controller.

Specific Terms – The terms and conditions which supplement the Terms of Service and govern the use of individual Services.

Sub-processor | Sub-operator – Any Processor / Operator we use to assist us in fulfilling our obligations in providing the Services.

you or your – The Customer, including a legal entity (such as a company), who enters into an Agreement with Hostwave.

3. Our Agreement:

Our Agreement governs the contractual relationship between us.

Unless expressly provided to the contrary in our Agreement, if there is a conflict in meaning, the following precedence ranking will apply (from highest to lowest):

  • the Specific Terms;
  • these Terms of Service;
  • the Acceptable Use Policy;
  • the Privacy Policy;
  • other policies that may be introduced by us from time to time which we notify you of; and
  • any documents incorporated by reference in our Agreement.

4. Amendment To Our Agreement:

4.1. Hostwave reserves the right to make changes to the Agreement at any time without notice. An updated version of the Agreement will be posted on the website.

4.2. It is your responsibility as a diligent user to check any amendment posted on the website.

4.3. If you object to any amendment, you may terminate your relationship with us under clause 14.

5. Custom Status:

5.1. The Customer may be an incorporated entity (such as a company or close corporation), trust, partnership, or individual.

5.2. If a person enters into our Agreement:

  • in a representative capacity on behalf of a Customer who is an incorporated entity;
  • on behalf of an unincorporated entity; or
  • in any other representative capacity recognised in South African law, the person warrants that:- they are legally authorised to do so and indemnifies xneelo against any loss or damage that we may sustain resulting from the person’s lack of authority; and- all the information supplied to xneelo at any time relating to the entity, trust, partnership, association or other person who they represent is true, accurate, and complete.

5.3. We reserve the right to treat all misrepresentations by you or the person representing you as fraud. The person representing you indemnifies us against any loss or damage that we may sustain resulting from the person’s lack of authority.

5.4. If we discover that you have fraudulently contracted to receive Services or that your representative has contracted without contractual capacity to do so, we may end our Agreement or Services immediately without any further notice to you and you may not claim any restitution or refund of any amount you have already paid, regardless of whether you have used the Services or not.

5.5 When requested, you must give us sufficient proof of the authority of the person who takes any action or executes documents on your behalf for our Agreement. This includes providing proof that the authorised signatory of your bank account has permission to debit your account.

5.6. If there is a dispute between individuals or entities you are involved with (including partners, shareholders, trustees, employees), we may act on the representation of a person claiming to be duly authorised to represent you, without having to independently verify the authority.

5.7. You indemnify us from any action or inaction based on the representation in 5.6. If however we ask you to give xneelo independent verification of the authority of any individual, you must provide it to us in a format we find reasonably acceptable.

6. Commencement and Duration:

6.1. Your application is an offer by you to accept Services from Hostwave. The terms relating to the acceptance of the offer are as follows:- Although the website is configured to confirm receipt of any offer (“Confirmation”), technical or other problems may delay or prevent the Confirmation.

  • We will only have accepted your offer once you have received confirmation.
  • Although the website is configured to confirm receipt of any offer (“Confirmation”), technical or other problems may delay or prevent the Confirmation.
  • You must contact us if you do not receive Confirmation from us within a reasonable time period.
  • Confirmation will not mean that a transaction has been concluded. It merely confirms that we have received the application.
  • You can accept that we have sent confirmation to you as soon as this is reflected in our log files.

6.2. We will conclude the agreement in Blouberg, Western Cape, South Africa.

7. Service Fees:

7.1. As a condition of using our Services, all fees must be paid in full as soon as they become due.

7.2. You must pay the service fees, according to the frequency of payment you select, as described on the website.

7.3. Where applicable, we will give you a VAT invoice in electronic format. You agree that by submitting an application form to us when making an application for Services, that the application is seen as your confirmation to accept electronic invoices for claiming input tax.

7.4. If you pay your service fees by debit order, you authorise us to make the necessary transfers from your designated bank account at the beginning of the month as per your preferred frequency of payment for the duration of our Agreement. You must put the debit order in place within seven days of the Commencement Date. You shall be liable for an administrative fee in the event that a debit order is unsuccessful.

7.5. We reserve the right to amend or vary the service fees and any amendment or variation of the service fees will be seen as an amendment of our Agreement. If we amend the service fees, Hostwave will give you at least 30 days prior notice. If you object to any amended service fees, you may terminate your relationship with us under clause 14.

7.6. You will not withhold any payment of any amount you owe us for any reason, (except for an actual breach by Hostwave of our Agreement). In addition, you may not demand any discount, refund (other than under clause 7.8), or reduction in respect of any service fees you owe us.

7.7. Please be aware that all our service fees include value-added tax (VAT) at the prevailing rate required by law. However, if you’re eligible for zero-rating VAT (which means you meet certain conditions), you might not have to pay it. Please note that it’s up to you to ensure you qualify and provide us with the necessary declaration. Further hereto, you agree to pay any increase in VAT.

7.8. You may terminate the Service within:

  • seven days after the Commencement Date if you decide not to continue subscribing to the Service; or
  • within 30 days after the Commencement Date if we fail to meet the service levels for hosting services and email services as specified in the Specific Terms, provided that you exercise your right to end the agreement by giving us notice by email to billing@hostwave.co.za.

7.9. If you terminate the Service for one of the above reasons, Hostwave will refund you any service fees. However you are still liable for any third party costs incurred during this period e.g. domain registration costs (please refer to clause 5 of the Specific Terms and Conditions).

8. Monitoring:

8.1. We monitor our hosting facilities, but not your specific activities. Where we have to intercept communications in accordance with the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 (“the Monitoring Act”), we will do this according to the requirements of the Monitoring Act.

8.2. With specific regard to the monitoring of content that is found on a website that belongs to you and which is hosted by xneelo, we have no knowledge of, nor interest in, Customer content hosted by us on your behalf using the Services and further we do not in any way contribute to or approve the content.

8.3. If however we determine that any content is in violation of any law (including the Films and Publications Act 65 of 1996) or of the Acceptable Use Policy, or if we receive a takedown notice from ISPA, as contemplated in section 77 of the Electronic Communications and Transactions Act 25 of 2002, we may

  • ask you to remove, amend, or modify the content;
  • terminate access to any Services or suspend or terminate any Services without notice;
  • delete the offending content without notice;
  • notify the relevant authorities of the existence of any content, make any back-up, archive, or other copies of any content; or
    take any further steps as required or requested by any authorities without notice.

8.4. We may disclose any content, material, or data (including any of your data) if:

  • required by law;
  • lawfully asked to do so by any authorities, including the South African Police Services pursuant to a subpoena under section 205 of the Criminal Procedure Act 51 of 1977; or
  • according to a judicial, administrative or governmental order. We do not have to give you notice.

8.5. You will have no recourse against us if we act under this clause and you accordingly waive your right to make any claim or demand, or to institute any legal proceedings against us.

9. Security:

9.1. All Customer Data allocated to you is personal to you and you will be liable for any loss or damage you or third parties have suffered because of your actions or the actions of a person to whom you have disclosed your Customer Data.

9.2. You authorise us to act on any instruction given by or purporting to originate from you even if it becomes clear that both parties have been defrauded by someone else, unless you have notified us under clause 9.4 before we acted on a fraudulent instruction.

9.3. If any security violations are reasonably believed to have occurred in connection with your account, we will investigate and, if necessary, change the relevant Customer Data, including access codes and passwords, and notify you immediately.

9.4. You must tell us immediately if any other person gains access to your Customer Data by following the procedures relating to reporting misuse Reporting Abuse – xneelo and give us your full cooperation in any investigation we carry out.

9.5. You indemnify us (hold us harmless) against any claim arising from:

  • your disclosure of your Customer Data to a third person;
  • the use of the Customer Data by a third person; or
  • any resulting action by you or a third party.

9.6. We reserve the right to take any action we find necessary to preserve the security and reliable operation of our infrastructure. You may not do anything (or permit anything to be done) that will compromise our security.

9.7. We have systems in place to assist our critical technical infrastructure to recover from a natural or human induced disaster. However, we do not specify any recovery time and are not liable for any loss or damage you suffer as a result of a disaster. You must make backups of your data. Nothing contained in our Agreement will be seen as representation that any back-ups of data we have implemented will be successful or in any way will assist with disaster recovery.

10. Warranties:

10.1. We warrant that Hostwave has the facilities, infrastructure, capacity, and capability to provide the Services.

10.2. Despite this warranty, the Services are provided “as is” and “as available”. No warranty of any kind is given, whether express or implied, including warranties of merchantability, title, or non-infringement, except where such a warranty is specifically required by law.

11. Intellectual Property Rights:

11.1. You must comply with all laws that apply to any intellectual property.

11.2. You must get our prior written approval before using any of our marks.

11.3. You grant us non-exclusive licence to use your marks so that we may exercise our rights or fulfil our obligations under our Agreement.

11.4. Other than as specifically provided for in our Agreement, we retain all Intellectual Property Rights employed in or otherwise related to our network infrastructure, business and the provision of any of the Services under our Agreement.

12. Custom Indemnities:

12.1. You indemnify (hold us harmless) from any liability arising from civil or criminal proceedings instituted against us or for any loss or damage you or a third party have suffered because of any interruption or unavailability of the Services.

12.2. You indemnify us and hold us harmless against all losses you have suffered or actions against us as a result of:

  • the use of the Services, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. This includes software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services,
  • non-performance or unavailability of any of the services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail Servers,
  • non-performance or unavailability of external communications networks to which you or our network infrastructure is connected, and
  • repairs, maintenance, upgrades, modifications, alterations or replacement of any hardware forming part of the Services, or any faults or defects in the hardware.

12.3. If we are sued for something that you have indemnified us for, you will take our place in the lawsuit or be liable to pay us back for any costs, damages and expenses including attorneys’ fees on the attorney and own client scale (you will be liable to pay our attorney’s fees finally awarded against us by a court or agreed to in a written settlement agreement, provided that:

  • we notify you in writing as soon as we become aware of the indemnified claim so you can take steps to contest it;
  • you may assume sole control of the defence of the claim or related settlement negotiations; and
  • we will give you, at your expense, with the assistance, information, and authority necessary to enable you to perform your obligations under this clause.

12.4. You must pay us any amount due under clause 12.3 as soon as we demand payment. If you contest the amount, you must pay the amount into your attorney’s trust or give us security to cover the amount, until we have resolved the dispute.

12.5. You indemnify us against any claim, loss or damage that xneelo may suffer because of your actions.

13. Suspension of Services:

Hostwave may temporarily suspend its Service to repair, maintain, upgrade, modify, replace or improve any of its Services. Where circumstances permit, Hostwave will provide prior notice of any service suspension to Customers. However, Hostwave will not be held liable for any resulting loss or damage suffered as a result of the service suspension.

14. Termination:

14.1. Hostwave may terminate any Services on five days’ written notice to you.

14.2. You may terminate any Services on 30 days written notice to Hostwave in one of these ways:

  • via email to billing@hostwave.co.za from an authorised email address.

We will confirm your request for termination via return email.

14.3. If you give Hostwave notice of termination in any manner other than as specified above you may find that the notice was invalidly given and will not have any effect.

14.4. Breach: If you breach our Agreement, we may, without prejudice to any other rights that Hostwave may have and without notice to you:

  • claim immediate payment of all outstanding charges due to us;
  • terminate or suspend your use of the Services, (which may include the deletion of your data);
  • terminate our relationship with you; or
  • list you with any credit bureau, internet service provider list, or the South African Fraud Prevention Service.

By agreeing to our Terms of Service, you expressly consent to this.

In all instances, we may retain all Services Fees you have already paid and recover all of our costs associated, including legal costs on an attorney and own client scale (you will be liable to pay our attorneys fees) with your breach.

14.5. Return of hardware or software: Where you have in your possession any of Hostwave’s hardware or software as a result of using the Service and the related Service ends, you must immediately return the hardware or software to us.

15. Force Majeure:

We will not be responsible for any breach of our Agreement caused by circumstances beyond our control, including fire, earthquake, flood, civil strike, compliance with government orders, failure of any supplier of electricity as well as no electronic communication service etc.

16. Resolving Disputes:

16.1. Any dispute concerning our Agreement (including interpretation and application) exists once a party notifies the other in writing, detailing the nature of the dispute and requesting that it be resolved as per this clause. The parties will first try to resolve the dispute informally by email, phone or other methods.

16.2. If informal dispute resolution negotiation fails, we may refer the dispute to conciliation (talks in which an agreed neutral third party tries to help the parties agree on how to end the dispute), failing which we may refer the dispute to arbitration (a hearing after which a neutral third party makes a binding decision about the dispute) (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations and you must participate. You cannot make us arbitrate. The arbitration will be held in Cape Town and conducted in English. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

16.3. Either party may only bring a claim against the other in their individual capacity and not as a member of any class.

17. Exclusion of Limitation of Liabitily:

17.1. Hostwave will not be responsible for any indirect, incidental, special, or consequential damages or losses arising from our Agreement. This includes loss of profits, revenue, anticipated savings, business transactions, goodwill or other contracts. It is irrelevant if this is due to negligence (carelessness) or breach of contract.

Our total liability to you is for direct damages up to a maximum amount of:

  • three months of your base hosting fee; or
  • R 2 500.00; whichever is less.

17.2. Our liability for direct damages under clause 17.2 will be excluded where we are held liable because of your use of any third party services or products which you accessed together with the Services, but which we did not provide to you.

17.3. This clause will apply even if you advised Hostwave of the possibility of loss of damage prior to its occurrence.

18. Notices:

18.1. You must send all notices to Hostwave, whether for court process or other documents or communications to 18A Blue Mountain Village, Blouberg Sands, 7441, South Africa or billing@hostwave.co.za

18.2. We may give all notices to you by email to the email address you provided to us on the application form when you first subscribed for the Services.

18.3. Any notice or communication required or permitted to be given under our Agreement will be valid and effective only if in writing.

18.4. All notices you sent to us which are:

  • sent by prepaid registered post will be deemed to have been received 14 days after date of postage; or
  • delivered by hand during ordinary business hours at the physical address or via email, will be deemed to have been received on the day of delivery.

19. Data Processing:

Roles of the parties under Data Protection Law

19.1. Depending on the particular activity, we act as both a Processor | Operator and a Controller | Responsible Party.

19.2. We act as the Controller | Responsible Party of your Personal Data | Information when you sign-up to use our Services. We collect and store your Personal Data | Information for specific purposes including improving our service offering and increasing service efficiency. Please refer to our Privacy Policy for more information.

19.3. We act as the Processor | Operator and you are the Controller | Responsible Party of the Personal Data | Information that we process on your behalf when we provide Services to you in terms of the Agreement. You are solely responsible for determining the purpose for which, and the manner in which Personal Data | Information is processed. Please refer to our Data Processing Agreement for more information.

20. General:

20.1. Entire agreement: The Agreement constitutes the entire agreement between the parties.

20.2. No Variation: No changes to our Agreement made by you are effective unless in writing and signed by the authorised signatories of both parties.

20.3. Waiver (giving up rights): Any favour we may allow you will not affect (or substitute) any of our rights against you.

20.4. Severability: If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of our Agreement if it does not change its purpose.

20.5. Applicable Law: South African law governs our Agreement.

20.6. Survival: Despite termination of our Agreement, any clause, which, from the context, contemplates on-going rights and obligations of the parties, will survive the termination and continue to be of full force and effect.

General Terms & Conditions / Privacy Policy

(Including the terms and conditions for the use of the mySOS Panic Button in conjunction with the service platform and the mySOS Panic Button Limited Warranty)

You must read these terms and conditions as the information contained herein is very important. If you decide not to read these terms and conditions in full, you must not accept these terms and conditions and not use the application.

By making use of, or accessing and/or downloading the mySOS mobile portal application, website, social media channels and/or any ancillary services (“the mySOS service platform or the service platform”) you, including those who have access to your smartphone and any components of the service platform on your behalf, or those posing as you, (“you”) agree to be bound by these terms and conditions. Should you not understand the entire contents of these terms and conditions, or should you be uncertain about the meaning of anything in these terms and conditions, you must not accept these terms and conditions and not use the application, access the website or use any services related to the service platform.

The service platform has specifically been developed for the use with certain mobile devices that incorporate GPS – it is therefore assumed that you (a) understand the functionality and restrictions of your smartphone and (b) understand and are bound by any other terms and conditions that exist when using the smartphone and any networks that may provide services to the smartphone.

1. General

1.1 The owner of the mySOS service platform, all intellectual property and seller of goods and services is mySOS Solutions (Pty) Ltd, a company incorporated within The Republic of South Africa with registration number 2014/147579/07;

1.2 The Stand Alone Panic Button in conjunction with the Service Platform aims to assist you in case of certain emergencies;

1.3 You must either (a) be over the age of 18 or (b) have the consent of your guardian(s) /parent(s) to use the Stand Alone Panic Button and the Service Platform;

1.4 You may not use the Stand Alone Panic Button and the Service Platform for any illegal activity;

1.5 The owner of the service platform, or any assignee of the owner, (“we”) may alter and amend these terms and conditions at any time and at our sole discretion. Current terms and conditions also available at www.mysos.co.za/termsandconditionsgssapb;

1.6 Your right to use the Service Platform may be revoked at any time and you will have no claim against anybody in such event, nor will you dispute the legality of such actions or question the facts that lead to such a decision;

1.7 All data collected by the Service Platform will be stored by mySOS and mySOS has the right to use such data in compliance with applicable legislation;

1.8 You explicitly agree that your personal information, including your location or the location of the Stand Alone Panic Button, may be made available to third parties when you use the Stand Alone Panic Button and Service Platform, whether directly or indirectly. We will take reasonable care when and how such information be made available, but you understand and agree to the fact that some information will be made available to third parties when you use the service platform e.g. when you activate an emergency – your details, including location, will be made available to third parties (including, but not limited to, emergency service providers);

1.9 You explicitly agree that we may verify your personal information with your third party emergency service providers to enable us to provide you with additional services in relation to that third party – for example, if you want mySOS to provide notifications of locations from your Stand Alone Panic Button to your armed response service provider (should we have a relationship with the latter) then you allow us to confirm your personal information with them;

1.10 We reserve the right, at our sole discretion, to change, update, and modify the offering of the Service Platform including the removal of certain services at any time;

1.11 The service platform is only for use within The Republic of South Africa or as defined by your specific emergency service provider if applicable. The Stand Alone Panic Button will not work outside The Republic of South Africa;

1.12 Should any clause of this agreement be invalid, then the validity of the remainder of this agreement will remain in full force and effect and will not be disputed;

1.13 This is the full agreement between you and the Service Platform provider;

2. Conditions of use

2.1 You warrant that all information you provide to us, including but not limited to your email address and contact numbers, will be correct;

2.2 We may verify your identity based on the information you provide to us – e.g. through an automated email verification process and/or SMS OTP;

3. Emergency/Emergencies

3.1 Any person who raises, or causes to raise, an alarm may be liable for all and any costs associated with such an alarm – you specifically indemnify and hold the service platform provider, its employees, directors and associates harmless against any such claims that may arise due the use of the service platform;

3.2 You further specifically indemnify and hold the service platform provider, its employees, directors and associates harmless against any injury, illness, loss of limb, loss of life, financial losses, loss of property and any other assets, emotional distress, reputation risk and the like, that may arise due the use of the service platform;

3.3 Raising a false alarm or hoax call is a serious offence and may lead to civil and/or criminal charges being brought against you;

3.4 The service platform is a tool that attempts to assist you in the event of an emergency or to provide service and/or functionality related to applicable service providers – if you are unsure of the service we aim to provide, rather dial one of the advertised national emergency numbers like 112 or 10177 etc.;

4. Warranty and Liability disclaimer

4.1 We will endeavour to provide you and service providers, where applicable, with the most up to date and accurate information;

4.2 We do not warrant the response of any third party service providers, nor do we warrant the quality of their service, the reaction time or if such service provider will respond to you at all;

4.3 We do not warrant that the service will be available to you at all times, we will however, endeavour to ensure maximum availability of the Service Platform;

4.4 The service is subject to normal constraints of the respective carriers of data and information – we can, for example, not be held liable for voice calls that fail or do not connect, for late or non-delivery of any data whether SMS, IP-data and so on;

4.5 The use of the Service Platform carries inherent risk – you agree to such risk and we have no liability of whatever nature if you use the service platform, or any component thereof;

5. Trademarks

5.1 Various trademarks, patents and logos used and/or displayed in any part of the service platform belong to the respective owners;

6. The Stand Alone Panic Button Terms and Conditions

6.1 The sale of the Stand Alone Panic Button is subject to these terms and conditions;

6.2 If you have not read, understood or agree to these terms and conditions do not use the Stand Alone Panic Button and return it unused in its original packaging to the place of purchase for a full refund;

6.3 After the complete and successful registration and configuration, the Stand Alone Panic Button can activated by pressing the SOS button for the specified period of time (refer to the manual);

6.4 Ensure that your emergency contacts are loaded with their correct numbers in the Stand Alone Panic Button setup pages and that these Emergency Contacts have accepted the invitation to become your Emergency Contacts;

6.5 Please test your Stand Alone Panic Button from time to time to ensure that your emergency contacts will receive notification in case of an emergency;

6.6 The Stand Alone Panic Button does not relay any information to any emergency service provider, it merely activates the service portal to attempt to notify your emergency contact(s) unless you are subscribed to a paid for emergency responder/manager service in which case we will notify such responder/manager in addition to your own emergency contact(s);

6.7 Your Stand Alone Panic Button utilises GPS technology to estimate its location. You should familiarise yourself with the GPS functionality and its shortcomings. GPS positions are estimates only;

6.8 The Stand Alone Panic Button does (a) not work under water, (b) when the Stand Alone Panic Button is out of network coverage, or (c) when some GSM services are unavailable for whatever reason;

6.9 The Stand Alone Panic Button work on a subscription basis, referred to as SIM Charges. The SIM Charges are payable in advance generally for a 12 or 24 month period added to the cost of the physical Stand Alone Panic Button. We undertake to notify you 30 days before the subscription period comes to an end to allow you to renew for a period of minimum 12 months

6.10 Battery life of the Stand Alone Panic Button is estimated and dependents on various factors outside mySOS’s control;

6.11 mySOS reserves the undisputed right at its sole discretion to limit, disconnect or terminate any service in the event of abuse or misuse;

6.12 We make no other representation or warranty of any other kind, express or implied.  Except as specifically set forth above, all warranties express or implied, including implied warranties of merchantability and fitness for a particular purpose, are excluded to the extent permitted by law.  In no event shall we be liable for any special, incidental or consequential damages for breach of warranty.  You acknowledge that any affirmation of fact or promise made by us, our agents, or employees shall not be deemed to create an express or implied warranty.  Our total and complete liability under this agreement or for any malfunction or misuse of the device is capped and limited to the purchase price of the device;

7. The Stand Alone Panic Button Limited Warranty

7.1 Subject to the conditions and exclusions below we warrant the Stand Alone Panic Button against defects in materials and workmanship for a period of 12 months;

7.2 This warranty applies to the original owner to whom we sold the mySOS Panic Button and is not transferable;

7.3 This warranty does not infringe on your rights in terms of The Consumer Protection- or any relevant Act;

7.4 In case you have a valid warranty claim we reserve the right to replace (similar, new or refurbished or newer model) or refund. In either case the mySOS Panic Button that was replaced or refunded will become mySOS’s property;

7.5 A warranty claim will be invalid if the mySOS Panic Button has been misused, abused, tampered with, damaged due to (a) use outside of intended specification, (b) improper storage, (c) contact with liquid (excluding water) or (d) exposure to high temperatures;

7.6 We make no other representation or warranty of any other kind, express or implied. Except as specifically set forth above, all warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose, are excluded. We shall not be liable for any special, incidental or consequential damages of any kind or other loss arising out of or in connection with your ability or inability to use the product or services provided under this limited warranty. Our total and complete liability under this warranty or for any malfunction or inoperability of the product is capped and limited to the purchase price of the product;

7.7 We do not warrant that: (a) the operation of the product or its use will: (i) meet your requirements; (ii) work in combination with any hardware or software applications or third party services; (iii) be uninterrupted, error-free, or without risk to, or loss of, any information, data, software or applications contained therein; or (b) defects in the products or software can or will be correct.