Terms and Conditions of Service as applied to Hosting Services

This agreement sets out the standard Xenon (Xenon Consulting CC t/a Xenon Web Services - Company registration number ck9703464/23; hereinafter referred to as "Xenon") Service Agreement.

Note: it is Xenon's policy to strive to ensure its client's best interests! Please abide by these terms for the benefit of all our clients.

Should you have any concerns, please do not hesitate to contact Xenon at info@xe.co.za or (011) 475 7607 during office hours.

INTRODUCTION

Xenon is a web presence provider, and its services (the Services) are provided to its clients (You; Your) subject to compliance with the following terms and conditions (this Agreement).

Use of Xenon's Services indicates Your acknowledgement that You have read and understood this Agreement, and that You agree to be bound by it.

1. COMMENCEMENT, TERM AND TERMINATION

  1. This Agreement shall commence on the date that the provision of the Services are first made available to You, and shall endure for an indefinite period thereafter, on the same terms and conditions as set out in this Agreement, until terminated by either Party giving the other Party 30 days prior written notice.
  2. This Agreement shall be deemed to have been concluded in Johannesburg, South Africa, by Xenon's acceptance of Your offer on the terms and conditions as provided in this Agreement.
  3. By making use of the Services, You acknowledge that You have read, understood, and agree to be bound by this Agreement.

2. CHARGES

  1. Service charges are provided on a quarterly basis.
  2. Fees are payable in advance by You to Xenon. Payment must be made by direct bank deposit within 7 days of Your placing an order for the Services.
  3. A pro-rata refund will be made to You upon cancellation of the service on the remaining duration of the Agreement following Termination.
  4. Xenon shall be entitled (without obligation) to suspend the Services on non-payment of applicable charges which are due and payable by You.
  5. In the event of a legal dispute between the Parties, You will be obliged to continue paying the charges as they become due and payable in terms of this Agreement.
  6. Notwithstanding anything to the contrary, ownership of any goods or facilities installed or otherwise provided by Xenon to You will vest in Xenon or the supplier thereof, until such time as the full purchase price has been paid, without any form of deduction or set off.

Xenon reserves the right to adjust Service charges at their sole discretion. A change in charges will be effective immediately and will be recovered from you as soon as possible thereafter.

3. USE AND SECURITY OF YOUR ACCOUNT

  1. You recognise and understand that the security of Your account is Your sole responsibility. You confirm by this Agreement that Xenon shall be entitled to rely on the fact that any person that has access to the Services via Your account shall be deemed to do so in Your name and with Your consent.
  2. You undertake to notify Xenon immediately in writing if You have cause to believe the security of Your account has been compromised.
  3. You shall be held fully responsible for any misuse of or compromise to Your account of which Xenon is not notified in writing.
  4. Xenon reserves the right to suspend access to Your account, pending a full investigation and resolution thereof, if any security violations are reasonably believed to have occurred in association with Your account.
  5. Xenon further reserves the right to cooperate with any lawful investigation regarding any aspect of Your use of the Services.
  6. Any use of the Services to engage in software piracy or other violations of law will result in account suspension, and will be immediately reported to the appropriate authorities.

4. USER CODE OF CONDUCT AND PROHIBITED ACTIVITY

  1. The Services may only be used in accordance with this Agreement, and for lawful purposes. Use of the Services which violates this Agreement, or any applicable laws, is strictly prohibited.
  2. You undertake to adhere to systems and acceptable use policies as published online by Xenon (which may be amended from time to time), including restrictions on aspects of the Services associated with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of the Services at Xenon. You undertake to abide by all current and future Xenon policy decisions.
  3. You understand and acknowledge that by using the Services to make information available via the Internet or any of its protocols, such information may become available to all Internet users, and that Xenon assumes no obligation or liability in limiting or restricting access to such information, or protecting such information from infringement.
  4. You assume total responsibility and risk for Your use of the Services and the Internet. It is Your sole responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, products and services, and any other information, and the quality of all merchandise provided through Xenon or on the Internet generally.

    While using the Services, You may not (nor may You authorise or permit any third party to) knowingly and intentionally:
  1. Use the Services in any manner prohibited by relevant legislation, including the Electronic Communications and Transactions Act 25 of 2002;
  2. Post, access or transmit any unlawful information (including without limitation abusive, defamatory, obscene, or like infringing information of any kind; any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any national or international law, including without limitation laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws);
  3. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
  4. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
  5. Cause damage to or otherwise interfere with the proper operation of Xenon's or Xenon's suppliers' systems, including without limitation the fraudulent use, falsification or other circumvention of identification procedures, the obtaining access beyond that which You are authorised for, or impairing the availability, reliability, or quality of Xenon's Services and those of its suppliers to other clients;
  6. Cause damage to or otherwise interfere with the proper operation of any other information systems accessible via the Internet, including any attempt at unauthorised access of restricted forums or resources;
  7. Avoid or contravene the Acceptable Use Policy of any network or service You connect to via the Internet; or
  8. Make use of the Services for the transmission or facilitation of spam (which may be declared so by Xenon in its sole and unfettered discretion, following an investigation into Your use of the Services for qualities including the transmission or facilitation of the transmission of information which is characterised as being unsolicited (whether of not being of a commercial or promotional nature), or where a single or similar message is transmitted or facilitated in bulk, and considered to be an annoyance or hindrance to others), whether by email, Usenet postings, or any other communication mechanism relying on the Services.

    Any breach of this clause will constitute a material breach of this Agreement, and shall, without derogating from any other right of recourse available to it, entitle Xenon to immediately suspend the Services.

5. YOUR WARRANTIES

  1. You undertake to only use the Services, any customer-premises hardware and any associated software (where applicable) in accordance with Xenon or supplier instructions and/or software license in effect from time to time.
  2. You undertake to indemnify and keep Xenon indemnified from any claim howsoever arising (lawful or otherwise), brought by any third party resulting from Your use of the Services. You undertake to pay all costs, damages, awards, fees (legal fees on an attorney-and-own-client scale, whether incurred prior to, during or after the institution of legal proceedings) and judgments finally awarded against Xenon arising from such claims.
  3. You undertake at all times to acquaint Yourself with and abide by applicable legislation and regulation, and accordingly indemnify Xenon against any and all damages or loss occasioned by Your non-compliance hereof.

6. DOMAIN NAMES

  1. You hereby confirm and warrant that You are the owner of, or are otherwise authorised or entitled to use a trade or service mark associated with any domain name(s) used or applied for and used in conjunction with the Services.
  2. You warrant that Your application for, and where applicable, use, of a domain name(s), in connection with the Services, will not infringe the rights of any other person(s), whether in statute or at common law.
  3. You indemnify Xenon and hold it harmless against any and all claims or losses arising out of any action brought by a third party whose rights in respect of a logo, business name or trade mark have been infringed by You.
  4. If You request that Xenon registers domain name(s) for and on Your behalf, You acknowledge that:
    • Xenon does not guarantee that the domain name(s) you request is/are available for registration, or that the use of such domain name(s) will not infringe any third party rights;
    • Xenon is not a domain name provider, but a mere third-party agent acting on your instructions, to the extent that those instructions are possible and lawful;
    • The registration of the domain name(s) and its/their future availability and use is subject to the terms and conditions of use of the domain name(s) provider;
    • The registration and maintenance of the use of the domain name(s) may be subject to Alternate Dispute Resolution procedures here and internationally, and you acknowledge that Your rights in and use of the domain name(s) may be subject to the determinations of juristic Panels constituted in accordance with the terms and conditions of such procedures, and
    • Any fees and associated charges incurred in the process of applying for, renewal and maintenance of registration of the domain name(s), including any administrative work performed by Xenon following a dispute to the domain name(s) are for Your account, and are non-refundable.
  5. Any Internet Protocol (IP) address allocated by Xenon to You shall at all times remain the sole property of Xenon and its suppliers, and You will have a non-exclusive, non-transferable license to use such IP address for the duration of this Agreement.
  6. If this Agreement is terminated, for whatever reason, Your license to use the IP address shall immediately, automatically, and without prejudice, terminate.

7. DISCONTINUANCE OF SERVICES, MONITORING, NOTIFICATION

  1. Xenon reserves the right to refuse or discontinue all or part of the Services at its sole discretion if You engage in any conduct or activity that Xenon in its sole discretion believes violates any of the terms and conditions in this Agreement, or is detrimental to its interests hereunder.
  2. You acknowledge that Xenon has the right to monitor Your use of the Services from time to time in accordance with applicable legislation, and to disclose any information as is necessary in compliance with the law.
  3. Xenon assumes no obligation to act as an information content monitor, but reserves the right to refuse to post, or to remove from publication, any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of law or of this Agreement.
  4. Xenon shall have no obligation, on discontinuation of provision of the Services, to notify any third-party providers of services, merchandise or information, nor shall it be liable for any consequences resulting from such discontinuance or lack of notification.

8. NO WARRANTIES

  1. Other than as set out in this Agreement, Xenon, its employees and agents make neither express nor implied warranties or representations of any kind in respect of the Services, including without limitation warranties of title, non-infringement, or implied warranties of merchantability or fitness for any particular purpose. The Services are provided on an "as is" and "as available" basis. All warranties that are implied or residual in common law are hereby expressly excluded.
  2. Without limitation to the generality of the above clause, Xenon does not warrant that the Services available to You:
    • will be preserved or sustained in their entirety;
    • will be suitable for any purposes;
    • will be free of errors, defects, bugs or viruses of any kind;
    and Xenon assumes no liability, responsibility or obligation with regard to any of the exclusions as set out in this clause.

9. EXCLUSION OF LIABILITY

  1. Under no circumstances shall Xenon be liable to You or any third party for any direct, indirect, special, punitive, consequential or incidental loss or damage (including without limitation damage to property, business, or goodwill, or loss of profit, revenue or anticipated savings) that result directly or indirectly from Your use of or inability to use the Services, or for third parties' use of the Services, or Your or any third parties' reliance on or use of information, services, or products provided together with, on or through the Services, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
  2. Subject to the above clause, the entire liability of Xenon, and Your exclusive remedy for damages related to or arising from this Agreement, whether in contract or in delict, will not exceed the average aggregate of the charges paid by You to Xenon during the 3 months directly preceding the claim.
  3. Xenon reserves the right from time to time to suspend access to or provision of the Services for maintenance and repair work to its systems and infrastructure. In such instances and where possible, Xenon shall endeavour to provide due notice in advance of any restriction of or limitation to the Services. Any liability for any loss or damage arising from such restriction or limitation, whether direct or consequential, is hereby excluded, and the provisions of the first Exclusion of Liability clause above shall apply with the necessary changes to such restriction or limitation.

10. INDEMNIFICATION

  1. You agree, without limitation or exception, to indemnify, defend, and hold harmless Xenon and its suppliers from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees (on an attorney-and-own-client costs scale basis), causes of action or claims caused by or otherwise resulting indirectly from Your use of the Services which causes damage, either to You, Xenon, or any other third party.
  2. This indemnification extends to all issues associated with Your account, including but not limited to domain name(s) selection and web site content.

11. CLIENT INFORMATION, FINANCIAL INFORMATION, RIGHT OF USE

  1. You warrant that all information provided by You to Xenon, including without limitation all Your identification and contact information, is true and correct, and that should such information change, You will notify Xenon thereof within 30 days of such change.

12. VIRUS SCANNING, SPAM FILTERING, PERMANENT DELETION AND BACKUP OF DATA

  1. Your use of the Services is at Your sole risk. Xenon is not responsible for the security or integrity of any information stored with Xenon and its suppliers and associated with Your account.
  2. You undertake full responsibility for the integrity of all files and information communicated via the Services, and You will ensure and maintain appropriate backup facilities of files and information stored on Xenon's servers and those of its suppliers.
  3. You acknowledge that, upon the termination of this Agreement for whatsoever purpose, Xenon shall be entitled to permanently remove your information from its servers and those of its suppliers within a reasonable period, following notice to You. If You have not made alternative arrangements acceptable to Xenon for the safe transfer or further storage of Your information, Xenon accepts no liability for the permanent deletion thereof.
  4. As a responsible party facilitating access to the Internet and associated protocols, Xenon has a virus scanning and spam filter activated by default. In the unlikely event that “false positives” (a legitimate message mistakenly marked as spam) occur, Xenon will not be held liable for any direct, indirect or consequential loss, should legitimate information incorrectly be identified as spam or a virus, and filtered out, and the provisions set out in clause 1 of the Exclusion of Liability provision above will apply, with the necessary changes.

13. INTELLECTUAL PROPERTY

  1. You acknowledge that, by virtue of this Agreement, you acquire no interest or any other right in the Intellectual Property of Xenon or its affiliates, and that all such Intellectual Property is and shall remain the exclusive property of the Party to which it belongs.
  2. If You become aware of any actual, threatened or suspected infringement of such Intellectual Property, You undertake to immediately notify Xenon thereupon in writing.

14. GENERAL

  1. Choice of Law, Jurisdiction: This Agreement shall be governed in all respects by the laws of the Republic of South Africa. Both Parties consent to the non-exclusive jurisdiction of the Magistrates Court, with regard to any proceedings in connection with the Agreement, but You acknowledge that Xenon shall be entitled to institute proceedings in the High Court of South Africa.
  2. Incorporation by Reference: This Agreement shall be interpreted as including by incorporation by reference the Acceptable Use Policy and Privacy Policy as published from time to time on the Xenon website.
  3. Pre-Contractual Negotiations: This Agreement supersedes any written, electronic, or oral communication You may have had prior to the conclusion of this Agreement with Xenon, or any agent or representative thereof, and this Agreement constitutes the complete and total Agreement between the Parties.
  4. Acting as Principal: Each Party warrants that, in entering into this Agreement, it acts as a principal and not as an agent for any undisclosed principal.
  5. Domicilium Citandi Et Executandi: The Parties choose their addresses as provided for the purposes of this Agreement as their respective addresses for all purposes, including without limitation for the delivery of notices. Each Party shall be entitled to vary its address in writing to the other Party. Any communication shall be deemed to have been received on the 7th day following despatch thereof. Notwithstanding anything to the contrary, a communication actually received by a Party shall be adequate notice, notwithstanding that it was not sent to the other Party's chosen address.
  6. Unilateral Amendment: Xenon shall be entitled to unilaterally amend the terms of this Agreement insofar as they relate to the applicable charges from time to time, which shall then become effective as from the date Xenon notifies You thereof. Further, Xenon shall be entitled to unilaterally vary the terms of this Agreement upon a change in the law as it applies to the telecommunications sector in general, in order to continue to offer its Services to all then current clients.
  7. No Variation: Subject to the aforegoing provision, no acceptance by You of information offered by Xenon, its agents or employees, shall constitute an agreement expanding or diluting the terms and conditions of this Agreement, unless such offer and acceptance is explicitly intended to vary this Agreement in an addendum, and is signed by an authorised representative of Xenon.
  8. Indulgence: An indulgence granted by either Party shall not constitute a waiver or abandonment of any of that Party's rights in this Agreement, and that Party shall not be precluded from exercising any right against the other Party which may have arisen in the past, or which may arise in the future.
  9. Waiver: A waiver by either Party of any provision of this Agreement shall not be binding against that Party unless expressed in writing and signed by the Party giving it, and in that event such waiver will only be effective in that specific instance and for that specific purpose.
  10. Severability: If any provision of this Agreement is determined by a Court of competent jurisdiction to be invalid or unenforceable, all remaining provisions of this Agreement shall remain in full force and effect, said provision shall be performed to the maximum extent possible so as to obtain the intended result, and Xenon shall be entitled to review, correct and communicate a reformed provision only to the extent necessary to give intended effect to the original provision.
  11. Surviving Clauses: Upon the termination or cancellation of this Agreement or any clauses hereof for any reason, those clauses which are intended to continue and survive such termination or cancellation (including without limitation, the clause describing Intellectual Property provisions) shall so continue and survive.
  12. Assignment: You will not be entitled to cede or assign this Agreement or any part thereof without the prior written consent of Xenon, and this Agreement shall be binding on Your respective successors and assigns. Xenon shall be entitled to assign its rights and obligations without Your consent to an entity which acquires all or substantially all of the assets of Xenon, provided that such assignment does not relieve such assignee of its obligations under this Agreement.
  13. Representations: Neither Party shall without the prior written consent of the other Party refer to itself as an authorised representative of the other Party, nor use the other Party's logos, trade or service marks. Notwithstanding the foregoing, Xenon is hereby authorised to identify You as it's customer for reasonable marketing and/or publicity announcements.