1. Introduction
1.1. G.McLaren T/A Imagimedia, hereinafter referred to as “Imagimedia” offers several different hosting Services through the System. 1.2. The Customer wishes to make use of hosting services offered by Imagimedia. 1.3. This document sets out the terms and conditions pertaining to such Services offered by Imagimedia.2. Status
The Hosting Terms and Conditions form part of the Master Services Agreement and incorporate the provisions of the Imagimedia Acceptable Use Policy, both of which are available on the Imagimedia Website.3. Definitions
3.1. Unless stated to the contrary words and phrases used in this document have the same meanings ascribed to them in the Master Services Agreement. 3.2. “Collocation Hosting” means the Service described in clause 11. 3.3. “Dedicated Hosting” means the Service described in clause 9. 3.4. “Virtual Dedicated Hosting” means the Service described in clause 10. 3.5. "Remote KVM" means a method by which the Customer is able to control the Customer Equipment from a remote location by means of the Internet and which simulates the operation of a keyboard and pointer device (mouse) as well as presenting a screen approximating the screen that the Customer's employee would see if he was present at the Premises. 3.6. “Shared Hosting” means the Services described in clause 7. 3.7. "Signature Date" means the date upon which the party hereto last signing the Service Order, does so.4. Services
4.1. The contents of the clauses below set out the terms and conditions pertaining to the particular Services provided by Imagimedia to the Customer in terms of the attached Service Order. 4.2. Should a Customer have signed a Service Order, the relevant clauses below shall pertain to the Service(s) selected by the Customer in the Service Order. 4.3. The hosting specification, location, as well as optional services and/or software required by the Customer shall be as set out in the Service Order.5. Term and Renewal
5.1. The period of this Service Order shall be a period of 12 months from the Effective Date (or such other period as set out in the Service Order), until the termination date as set out on the Service Order ("the Initial Period"). 5.2. Upon expiry of the Initial Period and in the absence of written notice of renewal by the Customer: 5.2.1. If the Customer elected to make payment monthly, in that event this Service Order shall be automatically renewed for further periods of one calendar month ("the Renewal Period") if the Customer does not furnish Imagimedia with written notice of termination at least 30 days (but not more than 60 days) prior to the end of the Initial Period. The Customer may terminate the Service Order during the Renewal Period upon one calendar month’s written notice, which termination shall take effect on the first day of the month immediately following the end of the one-month notice period. 5.2.2. If the Customer is making payment quarterly, in that event if the Customer does not furnish Imagimedia with written notice of termination at least 30 days (but not more than 60 days) prior to the end of the Initial Period, the Service shall be suspended pending notice of termination or renewal by the Customer. 5.2.3. If the Customer is making payment yearly, in that event if the Customer does not furnish Imagimedia with written notice of termination at least 30 days (but not more than 60 days) prior to the end of the Initial Period, the Service shall be suspended pending notice of termination or renewal by the Customer. 5.3. The Customer may by written notice to Imagimedia renew a Service Order, but such renewal shall be subject to such amendments in terms and Fees as Imagimedia may at its sole discretion make, subject to the condition that Imagimedia shall ensure that the Customer is made aware of such amendments prior to the renewal being finalised.6. Fees and Payment
6.1. The Fee payable in respect of the Service shall be as specified in the Service Order. 6.2. Should the Customer have indicated on the Service Order that it wishes to make payment of Fees monthly, then such Fees shall be paid not later than the 20th of the month immediately preceding the month to which the payment pertains. 6.3. Should a set-up Fee be payable, then such Fee must be paid at the same time as and in addition to the Customer’s initial payment to Imagimedia in respect of the Service. 6.4. Should the Customer have signed a debit order in favour of Imagimedia or its authorized agent, payment shall be arranged by Imagimedia in terms thereof. 6.5. Imagimedia shall be entitled to increase the Fees during the Initial Period in accordance with any increases which have been imposed upon it by its suppliers and/or with benchmarks in the IT industry which shall include, but not be limited to, increases in labour costs (having regard to, inter alia, premium salaries being paid to specialist personnel, the accelerated demand by computer users for new computer systems, bonuses, “high average” salaries and “skills scarcity” premiums), as well as any change in Imagimedia’s effective obligations resulting from enhancements effected during the previous such period. In the event of Imagimedia increasing the Fee, it shall first give the Customer 30 (thirty) days’ written notice. For the avoidance of doubt, the Customer shall not have the benefit of terminating the Service Order in these circumstances as set out in the Master Service Agreement. 6.6. All hosting services are subject to a 30-day money-back guarantee period with the following conditions: 6.6.1. Should the Customer be unhappy with the Service provided by Imagimedia, it may within 30 days of the Signature Date by written notice request that the Service Order be cancelled. 6.6.2. Upon receipt of such notice Imagimedia shall cancel the Service Order and refund all monies paid by the Customer in respect of the Service Order. 6.6.3. This guarantee shall not apply to Dedicated Hosting Services, Collocation Hosting Services, or Domain Registration.7. Branding
7.1. Services are not necessarily branded as “Shared Hosting”, “Dedicated Service Hosting” or “Collocation Hosting” in Imagimedia’s promotional material or Service Orders, whether on the Imagimedia Website or otherwise. The nature of the Services in question can however be easily determined from the specifications given in such promotional material. 7.2. Promotional offers not actually set out in the Service Order do not apply.8. Shared Hosting
Imagimedia will make available to the Customer a server located at the Premises, on the following terms: 8.1. Imagimedia will make available a user account on the server for the Customer, but the Customer will not have exclusive use of the server. 8.2. The server shall, subject to the reasonable security measures described elsewhere in this document, be "live" and accessible by general users of the WWW, unless the Customer explicitly requests otherwise. 8.3. The server will at all times remain the property of Imagimedia and the possession of the server shall not pass to the Customer under any circumstances. 8.4. Imagimedia will be responsible for the setup of the server at the commencement of the Service Order. The server shall be set up with the Software necessary to allow the Customer to make use of it as contemplated in the Service Order. Imagimedia may at its discretion charge a setup fee in this regard. 8.5. Imagimedia will be responsible for the maintenance of the server, which shall include at its sole discretion effecting upgrades to the Software installed on the server, or repairs and upgrades to the hardware in the server. 8.6. Imagimedia will allow the Customer access to the server by way of the Internet in such a way as allow the Customer to use it for the purpose or purposes set out in the Service Order. 8.7. The Customer may be granted access to Email accounts if so stipulated in the Service Order, and that the use of such accounts will be subject to the provisions of clause 14. 8.8. Imagimedia will provide the Customer with internet connectivity from the Server, and bandwidth as set out in the Service Order. 8.9. Notwithstanding the provisions of clause 8.4: 8.9.1. Imagimedia will not be responsible for the effect of any Software that the Customer may install or have Imagimedia install on the server; and the Customer shall be liable for any increased bandwidth used as a result of the installation of such Software. 8.9.2. Should any Software installed on the server by the Customer or by Imagimedia on the instructions of the Customer interfere with Software installed on the server by another customer, or should such Software threaten the security of the System, Imagimedia may take any steps it at its sole discretion deems necessary to remedy the problem including without limitation: 8.9.2.1. taking over administration of that Software on the server, 8.9.2.2. removing the Software from the server, 8.9.2.3. suspending the Customer's access to the server, or 8.9.2.4. relocating the Customer's account to another server9. Dedicated Hosting
Imagimedia will make available to the Customer a server located at the Premises, on the same terms as those set out in clause 8 above mutatis mutandis, save that the Customer and Imagimedia shall be the only parties with access to the server.10. Virtual Dedicated Hosting
Imagimedia will make available to the Customer dedicated system resources on a physical server located at the Premises, on the same terms as those set out in clause 8 above mutatis mutandis, save that the Customer and Imagimedia shall be the only parties with access to these dedicated system.11. Hosting Support
11.1. Imagimedia shall provide hosting support to the Customer subject to the following conditions: 11.1.1. Hosting support will be provided on a best-effort basis, which means that Imagimedia will make reasonable endeavours to rectify errors in the System within a reasonable time but gives no warranty in this regard; 11.1.2. In requesting support the Customer must follow the procedure set out on the Imagimedia Website as amended from time to time; 11.1.3. Hosting support is available on Business Days between the hours of 07h00 and 18h00, unless the error is of such a nature that it renders the Customer’s website inaccessible or non-functional to the extent that it no longer fulfils its purpose, in which case support shall be rendered at all times. Imagimedia may upon receipt of a support request at its sole instance determine if the error is of such a nature and act accordingly; 11.2. Notwithstanding the above, Imagimedia shall be obliged to provide hosting support in respect of errors in the System only and, without limiting the aforegoing, shall not be obliged to render assistance in respect of any of the following: 11.2.1. any error in the Customer System; 11.2.2. any error in third party equipment or Software. 11.3. In the event that any ad hoc services are provided to the Customer by Imagimedia which are not set out in a Service Order or otherwise reflected in this document, Imagimedia shall undertake such services on a Time and Materials basis; such services include without limitation the following: 11.3.1. development of any computer programme, including scripting; 11.3.2. Database development, including the creation of stored procedures, structures and triggers; 11.3.3. assistance with and debugging of Customer’s computer programmes; and 11.3.4. project management.12. Bandwidth and its Measurement
The following provisions shall apply in respect of bandwidth: 12.1. Imagimedia shall provide the Customer with access to a Software application that will allow the Customer to monitor its use of bandwidth; 12.2. The Customer shall have a duty to monitor its use of bandwidth. 12.3. Imagimedia however makes no warranty as to the accuracy of the information returned by such Software and particularly notes that the information reflected by it may be up to 48 hours out of date. 12.4. The Customer's use of bandwidth shall be charged for as set out in the Service Order. 12.5. Should a Service Order include access by the Customer to a certain amount of bandwidth and the Customer exceeds this quantity, Imagimedia shall charge the Customer for such excess bandwidth at a rate to be determined by Imagimedia from time to time.13. Email accounts
Should Email accounts be made available to the Customer pursuant to a Service Order, such accounts shall be provided subject to the following terms: 13.1. Imagimedia shall filter incoming Email for unsolicited commercial Email (Spam), and Viruses. Such filtering shall be effected on a best effort basis without any warranty of any kind. 13.2. The servers used to provide an Email Service shall be subject to the same level of security as the rest of the System. 13.3. Imagimedia shall be entitled to take whatever steps it deems necessary to prevent the sending of bulk unsolicited commercial Email using the System. 13.4. Imagimedia shall be entitled to take whatever steps it deems necessary to prevent an IP address allocated to Imagimedia from being blocked as result of the transmission of unsolicited commercial Email, which steps may include without limitation: 13.4.1. suspension of the Customer's Email account, and 13.4.2. suspension of access to a Domain Hosted on the System, 13.5. Should Imagimedia incur costs in unlocking any of its IP addresses as a result of a Customer sending bulk commercial Email using the System, the Customer shall be liable for such costs. 13.6. In respect of Email accounts held on Imagimedia’s servers: 13.6.1. Imagimedia may delete Emails received or sent more than 90 days before a given date; 13.6.2. If the mailbox size specified on the relevant Service Order is exceeded, no further Emails will be received into the Customer’s account; 13.6.3. No Emails larger than 5 Mb shall be sent or received; 13.6.4. Should the Customer breach these Terms and Conditions or the Master Services Agreement, Imagimedia may in its sole discretion reduce the Customer’s mailbox size; 13.6.5. Upon termination of the Service all Email will be deleted and Email addresses associated with the Customer’s account will cease to function; 13.6.6. Imagimedia has no responsibility for backing up Email stored on its servers; 13.6.7. “Webmail” is provided as a complimentary service and Imagimedia gives not warranty that it shall be accessible by the Customer at any given time; and 13.6.8. Imagimedia may amend the terms of this clause 14.6 at any time and Imagimedia will make best efforts to advise the Customer thereof by Email; such amendments will come into effect immediately whether or not the Customer has received notice.14. Domain Services
14.1. Should the Customer so indicate in a Service Order, Imagimedia shall register or renew an internet domain or domains on behalf of the Customer, subject to and upon payment of Imagimedia’s Fee for doing so which shall include the registrar’s application or renewal fee. 14.2. Imagimedia will send the Customer a notification per email a reasonable time before the expiry of any domain, but the Customer nonetheless has the duty to ensure that it renews any domain in good time. 14.3. Should Imagimedia register any Domain Name on behalf of the Customer pursuant to any Service Order, the Customer shall have an exclusive right to such Domain Name, even in the event that Imagimedia is listed as the Registrant of such Domain Name. 14.4. Whether Imagimedia is the registrant or not, should any domain name dispute be brought in respect of a domain name registered by the Customer or on behalf of the Customer by Imagimedia, Customer shall indemnify Imagimedia in respect of all costs incurred by it should Imagimedia be obliged to defend the dispute, including the adjudicator’s fees and attorneys’ fees on the scale as between attorney and own client.15. Remote Hands
Imagimedia may place its employees at the disposal of the Customer in order to undertake maintenance of the Customer Equipment at the Premises, and such services shall be charged to the Customer at Time and Materials.16. Security certificates
16.1. Should the Customer wish to provide a method by which communications between third parties and a server are secured, it shall at its cost provide all necessary security certificates and shall be liable for all costs incurred by Imagimedia in setting up such a facility including without limitation the costs of network interface cards and dedicated IP addresses.17. Infrastructure and security
17.1 Imagimedia may from time to time levy additional fees for maintenance of security and infrastructure.18. Disclaimer
Notwithstanding anything to the contrary contained in this document or the Master Services Agreement, and in addition thereto, Imagimedia shall not be liable to the Customer or any other person or entity whatsoever (and the Customer and such other person or entity shall accordingly have no claim against Imagimedia, and the Customer hereby indemnifies Imagimedia) in respect of any loss or damage, whether such claim be for direct, indirect or consequential damages of any kind or any loss of profit or special damages whether in contract or in delict and whether in the contemplation of the parties or not, as a result of or attributable to the following causes (or any downtime, outage, interruption in or unavailability of the System as a result of or attributable to any of the following causes): 18.1. necessary hardware or software maintenance or upgrades, provided the Customer is given reasonable notice; 18.2. hosting support undertaken on the Customer’s request; 18.3. loss of rights in a domain name due to Imagimedia’s negligence; 18.4. agreed system downtime for any reason (including, for example, a move in Premises); 18.5. any breakdown in any of the services provided by any of Imagimedia’s suppliers; 18.6. the performance or unavailability of external communications networks to which the Imagimedia’s Server or the Website is connected; 18.7. any technical failure in the connectivity services provided by Imagimedia to the Customer or a suspension or interruption in performance of any of Imagimedia’s obligations in terms of the Service Order, as a direct or indirect result of any technical problems, including but not limited to denial of access to other sites or information; 18.8. any infringement of the Customer’s rights of privacy, security, confidentiality and/or any other like rights, by any person whatsoever arising from any access obtained by any person or entity to the information, data or content of the Customer on the site or the Customer’s Website in terms of the Service Order; 18.9. the loss, destruction, theft, damage, contamination or corruption of the Customer Equipment Server or any of the Customer Data, material, information and/or content; or 18.10. the Customer’s failure to obtain any license, consent or authority necessary or required for services offered by the Customer, or the breach by the Customer of any law or regulation.Terms and Conditions ,