Web Site Hosting Service Agreement
Updated 28 Augustus 2006
The following agreement is between Embroidery SA of 1285 Linton Rd, Ramsgate, KZN and You (“Client”)
WHEREAS, Embroidery SA is an Internet Service Provider offering storage and transfer of documents and other information over the Internet;
WHEREAS, Client seeks to use these servers for its own embroidery related purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Embroidery SA can make no guarantee that any given party shall be able to access the server made available by Embroidery SA at any given time. Embroidery SA represents that it shall make every good faith effort to ensure that the server is available as widely as possible and with as little service interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows;
I. Financial Arrangements:
1. Length of service
Client agrees to an initial one (1) month or six (6) month contractual term of service (“Term”). The length of contract required is based on the type of service desired by the Client and shall be determined solely by Embroidery SA.
2. Service start date
The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Embroidery SA receipt of payment for such first Term of service or upon a mutually agreed upon other date.
3. Renewal by client
This agreement will automatically renew for successive three (3) or six (6) month Terms unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to your account.
4. Failure to pay
a. In the case of a web site hosted on a Embroidery SA hosting server, failure of Client to remit payment to Embroidery SA by the invoice due date is cause for removal of the Client's web site files from the Embroidery SA hosting server. Client agrees that Embroidery SA shall not be held liable for such removal or disconnection.
b. In the case of a customer's ownership of a link, failure of a Client to remit payment to Embroidery SA by the invoice due date is cause for the link to be removed from the Embroidery SA website without further notification by Embroidery SA. Client agrees that Embroidery SA shall not be held liable for such removal.
5. Refund policy
a. As detailed above, cancellation by Client must be in writing with 30 days notice.
b. Setup charges are not refundable under any circumstances.
c. The first Term of service is not refundable under any circumstances.
d. Refunds of renewal fees paid to Embroidery SA shall only be made for fully unused calendar months of service that the Client desires to cancel.
e. Client shall not be entitled to any refund of any monies under any circumstances should this agreement be terminated due to a violation of the Embroidery SA Policies and Terms of service Agreement.
II. Taxes:
Embroidery SA shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or Embroidery SA server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
III. Material and Products:
Embroidery SA will exercise no control whatsoever over the content of the information passing through the network except for what is noted in section IX of this agreement, relating to Lawful Purpose, and with respect to the Embroidery SA Policies and Terms of service Agreement.
Embroidery SA makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Embroidery SA also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of Embroidery SA is at the Client's own risk, and Embroidery SA specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection. Embroidery SA does not represent guarantees of speed or availability of end-to-end connections. Embroidery SA expressly limits its damages to the Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Embroidery SA specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
IV. Trademarks & Copyrights:
Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
V. Age:
Client certifies that he or she is of full legal age to enter into this agreement.
VI. Policies
Client agrees to all terms in the Embroidery SA Policies and Terms of service Agreement.
Embroidery SA network resources used by Client may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Embroidery SA. All messages transmitted by Client should correctly identify the sender. Users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
VII. Termination:
1. This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Written notice may be by postal, email or fax transmission. Embroidery SA reserves the right to verify all cancellations before terminating service. Notwithstanding the above, Embroidery SA may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with any of the terms of this Agreement.
2. Termination for any violation of the Embroidery SA Policies and Terms of Service Agreement shall be immediate. Embroidery SA may, at its option, cancel or suspend service immediately should it believe Client has violated or is about to violate the Embroidery SA Policies and Terms of service Agreement or should the Client fail to remit payment to Embroidery SA by the Client's invoice due date.
3. Client may be liable for certain fees relating to termination when such termination is due to Uncolicited Commercial E-Mail. Such fees are outlined in the Embroidery SA Policies and Terms of Service Agreement
4. Notice of cancellation
Written notice of cancellation may be by postal mail, email or fax transmission.
VIII. Limited Liability:
1. Client expressly agrees that use of the Server offered by Embroidery SA is at Client's sole risk. Neither Embroidery SA, its employees, affiliates, agents, merchants licensers or the like, warrant that the Server service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Embroidery SA Server service. Agreement.
2. Under no circumstances, including negligence, shall Embroidery SA, its offices, agents or anyone else involved in creating, producing or distributing Embroidery SA Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Embroidery SA Server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Embroidery SA records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on Embroidery SA Server service.
3. Notwithstanding the above, Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate Rand amount which Client paid during the term of this Agreement.
IX. Lawful Purpose:
Client may only use Embroidery SA Server service for lawful purposes. Transmission of any material in violation of any Government regulations is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secrets.
X. Indemnification:
Client agrees that it shall defend, indemnify, save and hold Embroidery SA harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees asserted against Embroidery SA, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Embroidery SA against Liabilities arising out of any of the following:
i. any injury to person or property caused by any products sold or otherwise distributed in connection with Embroidery SA Server service;
ii. any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party;
iii. copyright infringement; and
iv. any defective product which Client sold on the Server offered by Embroidery SA.
XI. Contract Revisions:
Revisions to this Contract will be considered agreed to by the Client on renewal of Embroidery SA Services as specified in Section I. Financial Arrangements
