The Customer hereby appoints GSolutions to provide the Service/s to the Customer for the duration of this Agreement, which appointment GSolutions accepts, on the terms and conditions contained in this Agreement.
2. Commencement And Duration
2.1. The Agreement shall commence upon the Effective Date and shall endure until the termination date of the last of the Schedules.
2.2. The duration period of each of the Services shall be as specified in the relevant Schedules.
3. Charges And Payment
3.1. GSolutions shall be entitled to commence invoicing the Customer for the Costs in relation to each Service from the date that such Service is Commissioned, as set out in the Schedule concerned (''Date of Commissioning'').
3.2. When the Date of Commissioning is delayed through the fault of the Customer, GSolutions shall be entitled to commence invoicing the Customer for the Costs in relation to each Schedule, with effect from 60 (sixty) days after the Signature Date.
3.3. In the event of a single Service consisting of a number of components, GSolutions shall be entitled to commence invoicing the Customer for each respective component of that Service as and when each component of that Service is activated for Customer use.
3.4. Customer is responsible for and agrees to pay to GSolutions all Once Off Costs and Monthly Costs specified in the Cost Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
3.5. The Costs specified in the Cost Schedule exclude:
3.5.1. VAT and any other any taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement, and
3.5.2. all and any ECNS Provider fees, for which Customer agrees to make payment directly to the ECNS provider on such terms as are agreed between the ECNS provider and Customer, and shall at all times be the responsibility of the Customer. The Customer hereby indemnifies and holds GSolutions harmless against any claims, costs and/or damages which may be incurred by the Customer or the ECNS Provider as a result of a failure by the Customer to pay the ECNS Provider fees, or any part thereof, as the case may be.
3.6. Invoicing will be processed and delivered monthly in advance, and all invoices for Services shall be settled by the Customer, monthly within 30 (thirty) days of the date of invoice.
3.7. In the event of any dispute arising as to the amount or calculation of any Costs to which GSolutions is entitled in terms of this Agreement, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on GSolutions and Customer. The cost of the determination shall be paid on demand by the Party against whom the determination is made, or as determined by the said auditors. However, where the provisions of the CPA are applicable to this Agreement, and do not allow for the enforcement of the above provisions this clause shall not apply.
3.8. Any amount falling due for payment by Customer to GSolutions in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two percent (2%) charged by GSolutions from time to time, monthly in arrears.
3.9. GSolutions shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the Monthly Costs, provided that:
3.9.1. GSolutions shall not be entitled to increase the Monthly Costs during the first 12 (twelve) months of this Agreement; and
3.9.2. GSolutions shall not increase the Monthly Costs on more than one occasion in any subsequent 12 (twelve) month period of this Agreement;
3.9.3. Should such an increase, as envisaged per sub-clause 3.7.2 above, occur after the initial 12 (twelve) month period, the Customer shall have the right to request GSolutions to provide proper and reasonable justification for such an increase, which GSolutions shall not unreasonably withhold.
3.10. Invoices will be emailed to the Customer’s designated email address (for billing purposes) indicated in the Application Form unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed.
4. Customer’s Obligations
4.1. GSolutions is obliged to protect its technical infrastructure against security threats and to protect the interests of its customers by ensuring that the conduct of no one customer prejudices the user experience of the other customers. Accordingly, GSolutions imposes certain reasonable rules relating to the Customer’s conduct while using the Services which are contained in GSolutions’ Acceptable Use Policy (“AUP”) (available at http://gsol.co.za/company/policies/acceptable-use-policy). Because security threats can be fluid and acceptable usage can change, GSolutions may from time to time amend this AUP by publication on its website. These amendments will not materially affect the Agreement, but will merely update the limits of the Customer’s existing duty to use the Services in a safe and responsible manner.
4.2. Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
4.2.1. damages in any way GSolutions’ technical infrastructure or any part thereof;
4.2.2. impedes, impairs or precludes GSolutions from being able to provide the Service/s in a reasonable and businesslike manner;
4.2.3. constitutes an abuse or malicious misuse of the Service/s; or is calculated to have any of the abovementioned effects. In such an event, should GSolutions incur expenses to remedy the situation, GSolutions reserves the right to charge the Customer the amount necessary to cover GSolutions’ additional expenditure. Notwithstanding the above, GSolutions reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
4.3. Customer is prohibited from selling, reselling or otherwise dealing with the Service/s which are proprietary to GSolutions in any manner whatsoever. Without limitation to the aforegoing, any consideration which Customer may receive whilst acting in breach of this prohibition shall be forfeited to GSolutions.
4.4. Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service/s through any of Customer’s Equipment, personnel and/or address.
4.5. Customer is prohibited from modifying any Equipment (including but not limited to router equipment) utilised by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such Equipment.
4.6. Customer shall at all times adhere to and ensure compliance with the Schedule/s, if applicable.
4.7. Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against GSolutions, its servants, its agents or any other persons for whom it may be liable in law if GSolutions interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to GSolutions.
4.8. Customer may not at any time use the Service in contravention of any South African Law. Customer acknowledges that GSolutions has no obligation to assist Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
5. Provision of the Services by GSolutions
5.1. To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against GSolutions, is to require GSolutions to remedy the defect in the quality of the Services performed.
5.2. If GSolutions has supplied Equipment to enable the Customer to utilise the Services in the circumstances set out in clause 6.1, defects in the Equipment will be dealt with as described in clause 7.
6. Returns and Refunds
6.1. If the provisions of the CPA are applicable to this Agreement, to the extent that Equipment is supplied to a Customer, the Equipment is warranted in respect of quality, suitability and durability for a period of 6 (six) months of the Effective Date in respect of the Equipment concerned. Provided the Customer is not in breach of the Agreement, Customer may within this period return the Equipment to GSolutions without penalty if the Equipment fails to satisfy the requirements and standards contemplated and GSolutions shall repair or replace the failed, unsafe or defective Equipment.
6.2. If Customer elects to enforce the provisions of clause 7.1 and, within 3 (three) months of any repair undertaken by GSolutions, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered by Customer, GSolutions shall, in its sole and absolute discretion:
6.2.1. replace the Equipment; or
6.2.2. refund to Customer the Once Off Cost applicable thereto.
7.1. GSolutions warrants and represents that:
7.1.1 it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
7.1.2 it is the owner of or has the right to use under licence any intellectual property employed by it during or as part of the Services;
7.1.3 it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
7.1.4 the Services shall be performed in compliance with South African Law;
7.1.5 the Services shall be provided in accordance with the provisions of this Agreement;
7.1.6 the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with the highest standard of its industry.
7.2 Save as expressly set out in clauses 6, 7 or 8.1 above, GSolutions does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
7.3 GSolutions does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
7.3.1 will be preserved or sustained in its entirety;
7.3.2 will be delivered to any or all of the intended recipients; or
7.3.3 will be suitable for any purpose;
7.3.4 will be free of inaccuracies or defects or bugs or viruses of any kind; or
7.3.5 will be secured against intrusion by unauthorised third parties; and GSolutions assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 8.
8. Risk and Ownership
8.1 All rights of ownership in and to any Equipment:
8.1.1 supplied by GSolutions on a loan or rental basis, shall remain vested in GSolutions;
8.1.2 acquired by the Customer from GSolutions either free of charge or at a subsidised price shall remain vested in GSolutions for the duration of the Initial Period of the Schedule in terms of which it is supplied; and
8.1.3 acquired at GSolutions'' listed price shall remain vested in GSolutions until the Customer has made payment therefor in full to GSolutions.
8.2 All risk in and to the Equipment shall pass to the Customer on delivery thereof at the premises of the Customer. Upon the signature of a proof of delivery by the Customer, the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
8.3 In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after the signature of a proof of delivery, the Customer shall be obliged to replace and/or repair or to pay to GSolutions the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
8.4 The Customer undertakes:
8.4.1 to display in relation to the Equipment no lesser degree of care than it would had if the Equipment belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;
8.4.2 not, in any manner, to alienate, encumber or otherwise dispose of the Equipment;
8.4.3 not to procure repair or maintenance of the Equipment by any third party without the prior written consent of GSolutions (which shall not be unreasonably withheld) or in any other manner tamper with the Equipment.
9. Limitation Of Liability
9.1 GSolutions shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where GSolutions'' failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
9.1.1 the Customer''s failure to perform, or delay in performing its obligations in terms of this Agreement; or
9.1.2 circumstances that constitute an event of force majeure as contemplated in clause 17 hereof; or
9.1.3 all telecommunications infrastructure and communication line faults; or
9.1.4 failure or unreasonable delay by the Customer to report faults/problems to GSolutions; or
9.1.5 the failure of any hardware, software program, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which GSolutions relies to provide the Service/s.
9.2 GSolutions shall not be responsible for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising if such loss is caused by any defect or failure in the Equipment due to:
9.2.1 compliance by GSolutions with any applicable legislation; and/or
9.2.2 any alteration to the Software and Equipment by the Customer; and/or
9.2.3 any defect and/or hazard in any third party equipment required by the Customer to be used in the provision of the Services.
9.3 In addition to 9.1 and 9.2 above, and to the extent permitted by South African Law, GSolutions shall not be responsible for indirect or consequential damages or loss (including but not limited to loss of data, profits and goodwill) of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
9.4 The Customer shall indemnify and hold GSolutions and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 10.2 above.
9.5 Subject to clause 9.1 - 9.3 above, the entire liability of GSolutions and Customer''s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 12 (twelve) months preceding Customer''s written notice to GSolutions in respect of such claim.
9.6 Customer hereby indemnifies GSolutions against and holds GSolutions harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of GSolutions is excluded in terms of clause 10.1 - 10.3 above.
9.7 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of GSolutions of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
9.8 Notwithstanding anything to the contrary contained in this Agreement, GSolutions reserves the right in its absolute discretion and after the receipt by GSolutions of any take-down notice in terms of the Electronic Communications and Transactions Act 25, 2002 or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of GSolutions’ intention to remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, GSolutions shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by GSolutions shall in no way constitute a breach by GSolutions of this Agreement.
10.1 Any specifications, descriptive matter, drawings and other documents which may be furnished by GSolutions to Customer from time to time:
10.1.1 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement by way of a Schedule;
10.1.2 shall remain the property of GSolutions and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in GSolutions. Such documents shall be returned to GSolutions on demand.
11.1 If either party hereto:
11.1.1 breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the non-breaching party;
11.1.2 commits any act of insolvency;
11.1.3 endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the non-breaching party’s’ rights hereunder or at all;
11.1.4 allows any judgement against it, in excess of R1 ,000.000.00 (One Million Rand), to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
11.1.5 is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered;
the other party shall have the right, as and where applicable without prejudice to any other right which it may have against the breaching party, to:
a) suspend or terminate the Services;
b) in the case of GSolutions, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until Customer has remedied the breach; and/or
c) cancel this Agreement;
in any event without prejudice to the non-breaching party’s’ right to claim damages. The right of either party to suspend or terminate the Services as a result of breach shall apply throughout the duration of the Agreement, both within the Initial Period and thereafter.
11.2 The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
11.3 Subject to what is set out in Clause 11.1 above, GSolutions shall be entitled to suspend the provision of the Services where Customer breaches any provision of this Agreement or where any payment to GSolutions is overdue by more than 30 (thirty) days.
11.4 If the provisions of the CPA are applicable to this Agreement, the above sub-clauses shall operate as follows:
11.4.1 The Parties will be required to give 20 business days’ notice to the other of any of the circumstances set out in clause 11.1;
11.4.2 Clause 11.1(b) shall not be applicable and in such circumstances GSolutions shall be entitled to payment by Customer of no less than 80% (Eighty Percent) of the remaining amounts due and payable over the unexpired period of the Agreement.
12. Intellectual Property
12.1 Notwithstanding anything set out in clause 13 below, all intellectual property rights in and to the Software (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to GSolutions. Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by GSolutions, or any of its third party suppliers.
12.2 Customer warrants that it shall not use the Service/s to produce, host or present any content in contravention of any person’s intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party’s intellectual property rights. Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to 3rd parties.
12.3 Customer hereby indemnifies and holds GSolutions and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party made arising out of the provisions of clauses 12.1 and 12.2.
13. Take Down Notices
13.1 In terms of section 75 of the Electronic Communications and Transactions Act we nominiate ISPA as our agent for the purpose of receiving take-down notifications. Their contact details are:
Internet Service Providers'' Association (ISPA)
Address: PO Box 518, Noordwyk, 1687
Telephone: 010 500 1200