By using Complete Enterprise Solutions Namibia (PTY) Ltd’s (Hereinafter referred to as Supplier) Hosting Services, you agree that you have read, understood and are bound by Supplier’s General Terms and Conditions.
1 Defined Terms
“Acceptable Use Policy” or “AUP” means the Supplier Acceptable Use Policy.
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Client Data.
“Country Specific Terms” means the addendum or addenda that may be incorporated into their Hosting Services Agreement if a portion of their Services are to be provided from a non-United States jurisdiction for which we have special legal terms.
“Client Data” means all data, records, files, input materials, reports, forms and other such items, including any PII (as defined in the applicable Product Terms and Conditions) or “cardholder data” as that term is in the Payment Card Industry-Data Security Standard, that are received, stored, or transmitted using the Hosted System.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system. Depending on the Services you are buying, the Hosted System may consist of a dedicated system for their use only, or the right to use certain parts of a shared system that Supplier maintains for many customers, or a combination of some dedicated elements and some shared elements.
“Hosting Services” means: (i) Supplier’s provision for their use of the Hosted System described in the Services Description, and (ii) Support.
“Product Terms and Conditions” means the terms and conditions for the particular Hosting Services you are buying.
“Services Description” means: (i) the online order that you submit or accept for the Services, or (ii) any other written order (either in electronic or paper form) provided to you by Supplier for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically.
“Service Level Guaranty” or “Service Level Guaranties” means (i) a guaranty or guaranties identified as a “Service Level Guaranty” or “Service Level Guaranties” in the applicable Product Terms and Conditions or (ii) any provision which provides a specified credit remedy for an identified failure to deliver or provide the Services.
“Services” means Hosting Services and Supplementary Services, collectively.
“Supplementary Services” means those Services you purchase from Supplier other than the Hosting Services, including time and materials based professional or consulting services (such as database administration or “DBA” services), one-time or non-recurring services which are not part of the existing Support (such as support for the application that you operate on their Hosted System), and any other services identified as “Supplementary Services” on the applicable Services Description.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
2 General Terms and Conditions
- Terms and conditions can be changed without prior notice.
- Hosted Services are available on a rental basis and no ownership is transferred from Supplier to the Customer of any hardware or software component.
- Where technical support is required by the Customer from Supplier, any technical operation performed by Supplier is not included with the Services as specified under the Service Agreement, then technical support costs will be charged additionally at an hourly rate.
- All support requests by the Customer must be given in writing in the form of E-Mail to Supplier, sent to the E-Mail address as provided by Supplier.
- Supplier guarantees XX.X% Service Availability, per calendar month, subject to Service disruption time caused by any of the following being excluded from the calculation of Service Availability:
- In case of simultaneous failure of primary and backup power, within the same data center where the Service is hosted.
- Scheduled maintenance, of which prior notification was to the Customer and no objection was received from the Customer.
- Actions performed by the Customer.
- Supplier will monitor only the Dependant Infrastructure, 7 days a week, 24 hours a day, and act upon any degradation of Service to ensure Service Availability guarantees.
- Technical support and maintenance of all dependant infrastructure as well as configuration of any functions related to a specific service is included with the Service offering.
- Technical support and maintenance of any fault related to misconfiguration or tampering by the Customer is excluded from the Service offering.
Supplier will provide the Hosting Services in accordance with the Services Description, the Service Level Guaranties, and other specifications in this Agreement. The Supplier will perform any Supplementary Services in a professional manner. The Supplier will perform all Services in accordance with applicable law.
The Supplier does not promise that the Services will be uninterrupted, error free or completely secure. The Client acknowledges that there are risks in Internet connectivity that could result in the loss of their privacy, Client Data, Confidential Information and property.
The Supplier disclaims any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The Client is solely responsible for the suitability of the services chosen, including the suitability as it relates to their Client Data. Any services that we are not contractually obligated to provide but that the Supplier may perform the Client request and without any additional charge is provided on an AS IS basis.
The Supplier will not backup the data unless backup services have been purchased. If backup services have been purchased, the Supplier does not promise to retain the data backup for longer than the agreed data retention period.
Support will be provided only to the administrative or technical contacts listed on the Client account. Support will not be provided directly to end users unless specifically agreed in writing.
The Supplier is not responsible to the Client or any third party for unauthorized access to their data or the unauthorized use of the Services unless the unauthorized access or use results from Supplier’s failure to meet its security obligations of these General Terms and Conditions or the Services Description. The Client is responsible for the use of the Services by any employee of theirs, any person they authorize to use the Services, any person who has been given access to the Services, and any person who gains access to their data or the Services as a result of their failure to use reasonable security precautions, even if such use was not authorized by the Client.
Supplier agrees that it will not use or disclose Client Data. Client Data is and at all times shall remain the exclusive property of Client and will remain in the exclusive care, custody, and control of Client.
The Client must use reasonable security precautions in connection with the use of the Services. The Client must comply with the laws applicable to their use of the Services and with the Acceptable Use Policy. The Client must cooperate with Supplier’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. The Client is responsible for keeping their account permissions, billing, and other account information up to date using Supplier defined process. The Client must pay when due the fees for the Services stated in the Services Description or other agreement.
In addition to the foregoing obligations, the Client acknowledges that they are solely responsible for taking steps to maintain appropriate security, protection and backup of Client Data. Supplier’s security obligations with respect to Client Data are limited to those obligations described in Section 3 above. Supplier makes no other representation regarding the security of Client Data. Client is solely responsible for determining the suitability of the Services in light of the type of Client Data used with the Services.
The Client may permit their subsidiaries and affiliated companies to use the Services, however the Clients is responsible for the acts or omissions of their permitted users. The Supplier will provide support only to the Client, not to their customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that their customers, subsidiaries, affiliates and other third parties do not have any rights against either party under this Agreement.
The Supplier may use the agents to track system information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. The Supplier may also use the agents to identify security vulnerabilities. The Supplier will not use the agents to view or capture Client content or data. The Supplier will use only a minimal amount of computing resources, and will not interfere with their use of their Hosted System. The Client Services will become “unsupported” if support agents are disabled or non functioning. The Client agree that Supplier may access their Hosted System to reinstall services management software agents if they are disabled or are not functioning.
The Client is responsible for understanding the regulatory requirements applicable to their business and for selecting and using those Services in a manner that complies with the applicable requirements.
3.3 Both Parties
Neither party may assign the Agreement without the prior written consent of the other party except that Supplier may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganization or a sale of its business. Supplier may use third party service providers to perform all or any part of the Services, but Supplier remains responsible to the Client under this Agreement for Services performed by its third party service providers to the same extent as if Supplier performed the Services itself.
4 Fees and Services
4.1 Sales Taxes
Unless otherwise expressly provided in the Agreement or included in the invoice for the Services, all amounts due to Supplier under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, “Tax”). If the Supplier is required by law to collect Taxes on the provision of the Service, Supplier will invoice you for such Tax and you must pay Supplier the amount of the Tax that is due or provide Supplier with satisfactory evidence of any exemption from the Tax.
4.2 Withholding Taxes
All payments to Supplier shall be made without any withholding or deduction for any Taxes, except for any withholding (or similar) taxes imposed on income that may be attributed to Supplier in connection with its provision of the Services that you are legally required to withhold from such payment and remit to the applicable governmental or taxing authority (such taxes, “Local Withholding Taxes”). The Client agrees to timely provide Supplier with adequate and accurate factual information and documentation (as determined by Supplier), including tax receipts, of their payment of any such Local Withholding Taxes. Supplier shall remit such cost to you in the form of a credit on their outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes as set forth above.
4.3 Terms and Fees
The first invoice will include the initial one-time set-up fee and a pro-rated monthly recurring fee from the Service Commencement Date to the last day of the calendar month. Following the Service Commencement Date, monthly recurring fees will be billed monthly in advance on or around the first day of each calendar month. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears.
Fees are due within 30 days of invoice date. The Supplier may suspend all Services, and services provided pursuant to any unrelated agreement, if payment of any invoiced amount is overdue, and the overdue amount is not paid within 5 Business Days of written notice to the Client. If Services are reinstated after a suspension for non-payment, a reasonable reinstatement fee may be charged for costs incurred. Invoices that are not disputed within 30 days of invoice date are conclusively deemed accurate.
Fees may be increased periodically to account for inflation and additional costs incurred due to increased third party fees. Increases in fees will be conveyed to the Client 60 days before any fee increase is implemented.
In the event that a third party license provider increases the fee they charge the Supplier for the use of such license, the Client fees will be increased by the same amount, provided that notification is given writing at least ninety (90) days before the effective date of the price increase.
4.4 Rate of Exchange
Products are linked to the US$ rate of exchange and can be amended without prior notice.
It is the suppliers discretion to refund any purchases. If refunds are approved a administration fee of 15% will apply.
4.6 Suspension of Services
Services may be suspended without liability if:
- The Supplier reasonably believes that the Services are being used in violation of the Agreement;
- The Client does not cooperate with a reasonable investigation of any suspected violation of the Agreement;
- there is an attack on a Hosted System or the Hosted System is accessed or manipulated by a third party without consent,
- the Supplier is required by law, or a regulatory or government body to suspend their Services,
- there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Supplier network or our other customers.
An advance notice of a suspension under this paragraph of at least twelve (12) Business Hours will be given unless it is determined that a suspension on shorter or contemporaneous notice is necessary to protect Supplier or its other customers from imminent and significant operational, legal, or security risk. If the Client Hosted System is compromised, the Client must address the vulnerability prior to Supplier placing the Hosted System back in service or, at the Client request, the Supplier may be able to perform this work a standard hourly rates as a Supplementary Service.
5 Termination of Agreement
5.1 Client Termination
The Client may terminate the Agreement for breach if:
- The Supplier materially fails to provide the Services as agreed and do not remedy that failure within ten (10) days of their written notice describing the failure
- The Suppliers materially fail to meet any other obligation stated in the Agreement and does not remedy that failure within thirty (30) days of their written notice describing the failure.
5.2 Supplier Termination
The Supplier may terminate the Agreement for breach if:
- It is discovered that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete
- The individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer
- Payment of any invoiced amount is overdue and the Client does not pay the overdue amount within five (5) Business Days of written notice
- The Client fails to comply with any other provision of the Agreement and does not remedy the failure within thirty (30) days of notice describing the failure.
5.3 Force Majeure
Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
6 Confidential Information
Both parties agree not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, as may be required by law, or as set forth below.
Each party agrees not to disclose the other’s Confidential Information to any third person except as follows:
- To each of the respective service providers, employees, Affiliates, suppliers, agents and representatives, provided that such service providers, employees, Affiliates, suppliers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this General Terms and Conditions;
- As required by law
7 Limitation on Damages
The Supplier is not liable failing to provide the Services unless such failure results from a breach of a Service Level Guaranty, or results from gross negligence, wilful misconduct, or intentional breach of the Agreement. The credits stated in the Service Level Guaranty are their sole and exclusive remedy for failure to meet those guaranties for which credits are provided unless such failure is due to Supplier’s wilful misconduct.
Neither party (nor any employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, neither party is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.
The Supplier is not liable to you for lost data unless and to the extent that the Client has purchased data backup services from the Supplier and the Supplier fails to provide the backup services as agreed. If backup services have been purchase, the Clients releases the Supplier from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Supplier’s negligence, the maximum aggregate monetary liability of Supplier and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed:
- For Hosting Services an amount that is twelve (12) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim
- For Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.
The Client may not copy any software we provide for their use unless expressly permitted by the Agreement or use such software after the expiration or termination of the Agreement. The Client may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided for their use. Unless permitted by the terms of an open source software license, the Client may not reverse engineer, decompile or disassemble any software provided for their use except and to the extent that they are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us.
In addition to the terms of the Agreement, the use of any Microsoft software is governed by Microsoft’s license terms.
The Client agrees that they have the legal right to use any non-Supplier provided software on their Hosted System. If Supplier has agreed to install, patch or otherwise manage software in reliance on their license with a software vendor (rather than Supplier’s license with the software vendor), then the Client represents and warrants that they have a written license agreement with the vendor that permits Supplier to perform these activities. On Supplier’s request the Client will certify in writing that they are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of their compliance as may be reasonably request.
The Client licensed software may not be compatible with Supplier’s standard process for deploying and repairing Hosted Systems. In addition, in order to install the software, it may be necessary to send physical or electronic media provided by the vendor, both for deployment and again in the event of a failure of their Hosted System. The Client agrees that Supplier will not be in breach of any Service Level Guaranty or other obligation under this Agreement that would not have occurred but for a delay resulting from the agreement to use their licensed software.
9 Software Downloads
Software, if any, made available for download on or via the website may be governed by license conditions that establish a legal relationship with the licensor. The Customer indemnifies Supplier against any breach of these license conditions. Supplier gives no warranty and makes no representation, whether express or implied, as to the quality or fitness for purpose of the use of such software.
No warranty, whether express or implied, is given that any files, downloads or applications available via the Website is free of viruses, Trojans, bombs, time-locks or any other data or code which has the ability to corrupt or affect the operation of the User’s computer, database, network or other information system.
10 Ownership of Property
Each party retains all right, title and interest in and to their respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Supplier during the performance of the Services shall belong to the Supplier.
The Client does not acquire any ownership interest in or right to possess the Hosted System, and there is no right of physical access to the Hosted System unless agreed. The Supplier does not acquire any ownership interest in or right to the information the Client transmits to or from or store on the Supplier servers or other devices or media.
If the Supplier or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and the Supplier is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Supplier may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
If the Services Description provides a Deployment requirement, the Supplier will deploy the server(s) described in the Service Description within the timeframe stated in the Service Description, provided that the Client promptly gives all the information reasonably requested to complete the deployment. Servers are deemed deployed as of the Service Commencement Date. The sole and exclusive remedy for our failure to deploy the servers by the agreed time shall be a credit equal to the amount of the setup fee stated in the Service Description for the affected server(s). The Client is not entitled to a credit if due to the deployment delay. This deployment guarantee does not apply to any software, other managed services, or hardware devices other than the server(s).
A delay in deployment of a Hosted System you may be requested provided written notice of the delay is requested no later than five (5) days following the date of signing the Agreement. The requested delay may not continue for more than two (2) months following the signature on the Agreement. Any additional fees for connectivity will be charged in full during the delay. The initial term of the Agreement will begin when the Hosted System is deployed at the Client request or on the second monthly anniversary of the date of the signed Agreement, whichever comes first. Following deployment the Supplier will charge the full monthly recurring fee (plus other usage fees as applicable) for the full term of the Agreement.
The General Terms and Conditions require the Client to use reasonable security precautions in light of your use of the Services. For the Hosting Services, this includes encrypting any PII transmitted to or from, or stored on, the Supplier servers or storage devices used by the Client.
12.1 Managed Backup
Supplier’s managed backup services are designed to facilitate restoration of data to the server or device from which the data originated in the event the primary data is lost or corrupted. The quality of the backup depends on how data is organized. It is recommended that the Client test the managed backup service promptly following the Service Commencement Date, and then periodically, to determine if it is capturing data properly. If it is not, the Supplier will work with the Client to maximize the accuracy of the managed backup service for data and/or help identify other data backup solutions that may work better for the Client. In the event the primary server or device hardware fails and is replaced, the Supplier may not be able to restore backed up data exactly as it was configured on the failed device. If this risk is not acceptable to, then the Client will help identify other data backup solutions that are more reliable in this situation. The “retention” period for backups refers to the amount of time that the Supplier will retain the backup in a useable form for restoration to the server or device from which it originated. If the Client wishes to preserve backups after the time that this server or device is decommissioned, the Client must make arrangements with the Supplier at least seventy-two (72) hours in advance of the scheduled decommissioning of the server or device. Database duplications or “cloning” for purposes other than a restoration of lost or corrupted data as described in this paragraph is not included as part of the managed backup service, but may be arranged as a Supplementary Service for an hourly fee.
If any services are purchased that involve data replication at a geographically diverse site then the following applies to the use of that Service: The rate by which the data at the primary site can be transferred to the secondary site will vary depending on the amount and type of data, constraints inherent in the Hosted System, and fluctuations in bandwidth availability. Therefore, at any given time, the secondary site may not be completely up to date. In the event of a failover to the secondary site, the data that has not yet completed the transfer from the primary site will be lost. The Supplier may offer some guidelines on latency times based on the Client data and system constraints, but these guidelines are not guarantees.
If a device that the Client owns is hosted in the Suppler Data Centre then a Colocation Addendum must be in place as of the date the Client signs the order or agreement covering the colocation services is part of the Agreement.
If the Client uses the Supplier’s virtualization services, the virtual server(s) will be active on the Service Commencement Date. Following the Service Commencement Date the Client is responsible for managing the active or inactive status of the virtual servers. The Supplier will invoice for virtual service in arrears based on the number of calendar days (full or partial) in each billing period that your virtual servers are set to “active.” While the virtual servers are in an “inactive” status we will not install any software updates that may have been agreed to install. Virtual Servers will be updated when they return them to “active” status, but there could be a delay of up to twenty four (24) hours before the updates are fully installed.
12.4 Domain Name Services
If the Client registers, renews or transfers a domain name through the Supplier, the Supplier will submit the request to its domain name services provider (the “Registrar”) on your behalf. The Supplier’s sole responsibility is to submit the request to the Registrar. The Supplier is not responsible for any errors, omissions or failures of the Registrar. The Client use of domain name services is subject to the applicable legal terms of the Registrar. The Client is responsible for closing any account with any prior reseller of or registrar for the requested domain name, and is responsible for responding to any inquiries sent by the Registrar.
12.5 Unsupported Configurations or Elements
If the Client wishes to implement a configuration element (hardware or software) or hosting service in a manner that is not customary at Supplier, or that is in “end of life” or “end of support” status, the Supplier may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavour,” “one-off,” “EOL,”, “end of support,” or with a like term in the Service Description (referred to in this Section as an “Unsupported Service”). The Supplier makes no representation or warranty whatsoever regarding any Unsupported Service, and the Client agrees that Supplier will not be liable for any loss or damage arising from the provision of the Unsupported Service. The Deployment and Service Level Guaranties shall not apply to the Unsupported Service, or any other aspect of the Hosting Services that is adversely affected by the Unsupported Service. The Client acknowledges that Unsupported Services may not interoperate with Supplier’s other services, such as backup or monitoring.
12.6 IP Addresses
The IP addresses allocated to the Hosted System during the term of the Agreement are managed by the Supplier and the Supplier will retain these IP addresses after termination of the agreement. The IP addresses may not be transferred or utilized by the Client after termination of the Agreement.