Terms of Service

 

1.           Introduction

These are the general terms of our relationship with you, where we have developed or obtained the rights to provide the services. They cover any transactions where we provide such services to you. To access our services you will log in using our portal.

Under these terms:

  • we are the service provider – DataKeepers (Pty) Ltd (Registration number: 2016/532469/07); and
  • you are our customer.

2.           Agreement

2.1.        Composition. The agreement consists of these terms of service and any other specific terms applicable to the services.

2.2.        Definitions. In the agreement:

authorised user means you or a user in your employ where you are a juristic person, who has been assigned credentials;

credentials means a unique username and password that has been assigned to an authorised user;

business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised;

business hours means our normal business hours on business days;

day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;

portal means our portal accessible at https://portal.datakeepers.co.za.

services means all services that we provide including our cloud services and our virtual services, or any other online services.

sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives; and

third party software means all third party software owned by a third party but legally licensed to us for use in providing the services; and

website means the website at the domain as may be designated by us in writing from time to time that provides you with access to the services. Product content can be found on https://virtualservers.co.za/ and https://cloudbackup.co.za/.

we, us, or our means us the service provider;

writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email.

you or your means our customer.

2.3.        Interpretation. The following rules apply to the interpretation of the agreement:

  • reference headings – clause and subclause headings are for reference only and do not affect interpretation;
  • non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
  • undefined words or phrases – all words or phrases that the agreement not define have their ordinary English meaning;
  • enactment references – references to any enactment include it as re-enacted, amended, or extended;
  • person references – references to a person includes a natural and juristic person;
  • party references – references to a party includes their successors or permitted assigns;
  • number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
  • no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
  • time calculations – the parties will use GMT +2 to calculate any times.

2.4.        Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in r other specific terms.

2.5.        Conflict. If there is a conflict of meaning between these terms and any word or phrase in other specific terms, the meaning in the specific terms will prevail in respect of the relevant services.

3.           Duration

3.1.        Commencement. These terms start whenever you accept them by:

  • doing so explicitly – such as by checking a checkbox saying that you do or agree to them;
  • using the services in any way – such as by accessing them; or
  • exercising any rights granted to you under the agreement;

and continue until terminated.

3.2.        Automatic renewal. If any of our services involve a subscription, the agreement will continue automatically from the end of the initial term or subsequent automatic renewal period for an automatic renewal period equivalent to the initial term.

3.3.        Renewal termination. Either party may terminate the agreement before the end of the initial term or subsequent automatic renewal period by giving the other party at least 30 calendar days prior written notice.

4.           Orders

4.1.        Placing orders. You place orders with us whenever you place a request or start using the services through our website. These orders are offers to us to use our services.

4.2.        Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.

4.3.        Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.

4.4.        Cancellations. We may cancel any order, but we will refund any money you have paid in relation to that particular order if we do.

4.5.        Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.

5.           Services

5.1.        Right. We grant you a right to use the services subject to the following limitations:

  • duration of agreement – you may only use the services for the duration of the agreement;
  • limited to terms – you may only use the services according to these terms;
  • non-exclusive – we may allow anyone else to use the services;
  • non-transferable – you may not transfer the right to anyone else; and
  • specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.

5.2.        Breach. We may cancel your right if you breach the agreement.

6.           Online services

6.1.        Basis. We provide the online services to you on the following basis:

  • you give us permission to monitor how you use them for security and stability purposes; and
  • you agree that our records are undisputed evidence of the services provided to you.

6.2.        Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:

  • accurately provide us with any information that we ask for on registration or account creation;
  • create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
  • look after their credentials and not give them to anyone else;
  • not interfere with or introduce any malicious software into the online services or otherwise misuse them;
  • be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
  • have the necessary infrastructure, equipment, and software to access the online services; and
  • abide by the agreement and any policies that we communicate to them in writing.

6.3.        Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.

7.           Cloud Services

7.1.        Grant of license. We grant you a limited, non-exclusive, non-transferrable, revocable license to use our cloud hosting services to:

  • store;
  • retrieve;
  • query;
  • serve; and
  • execute;

your content that you:

  • own;
  • have licensed; or
  • have otherwise lawfully obtained.

7.2.        Consent to monitoring. You consent to us monitoring your use of the cloud hosting services to check whether you are complying with this agreement by monitoring your external interfaces. You may not stop us from monitoring your external interfaces. But, you may use encryption technology or firewalls to help keep your content confidential.

7.3.        Co-operation with monitoring. You must co-operate with us to identify any problem with the cloud hosting services that we believe may be caused by your content or any other content you control.

7.4.        Service levels. We will do our best to provide you with the cloud hosting services at 98% uptime, but we accept no responsibility for the cloud hosting services being down for more than 2% of the time.

7.5.        Disaster Recovery. We will determine and maintain a disaster recovery facility and a disaster recovery plan. In the event of a disaster, we will implement the disaster recovery plan.

7.6.        Third party software. You may be allowed to use certain software third party licensors provide as part of the cloud hosting services. The third party does not sell or distribute the software to you and you may only use it as part of the cloud hosting services. You may not transfer it outside the cloud hosting services without our written permission. Your use of third party software is governed by third party software terms. Your use of third party software is at your own risk. You are responsible for testing third party software with our services.

8.           Packages

8.1.        Packages. We have a range of packages for our services. A package is made up of certain virtualised hardware specifications in exchange for a monthly services fee as agreed between you and us.

8.2.        Change to packages. We may change our available packages from time to time. You may not migrate to any new package that becomes available without our permission.

8.3.        Package migration. You may request to migrate from your existing package to a new package. We may migrate you at our discretion based on availability of equipment. We will charge additional fees for migration.

9.           IP addresses

9.1.        IP addresses. We allocate one or more IP addresses as part of the cloud hosting services to you. You have no right, title, or interest to those IP addresses.

9.2.        IP address reallocation. We may need to reallocate the IP addresses allocated to you from time to time. We will do our best not to interrupt your access to the services when reallocating IP addresses.

10.        Maintenance

10.1.      Interruption. Maintenance may interrupt the provision cloud hosting services.

10.2.      Scheduled maintenance. We will perform scheduled maintenance to our services from time to time. Therefore a monthly system downtime of seven hours to perform routine maintenance is reserved for each server forming part of the system. We will use all reasonable efforts to minimise the impact of scheduled maintenance on the system services (including typically performing the scheduled maintenance from midnight Sunday through to Monday morning). If the scheduled maintenance is to endure for a period longer than 120 minutes then we will provide you with prior notice.

10.3.      Emergency maintenance. We may perform emergency maintenance when necessary. We will do our best to inform you of any emergency maintenance when it happens or as soon after it has happened as possible.

10.4.      Co-operation with maintenance. You must co-operate with any maintenance requirements that we tell you about.

11.        Your content

11.1.      Prohibited content. We will notify you that we believe your content contains prohibited content and request that you remove it or disable access to it if we believe that it:

  • violates the law;
  • infringes or misappropriates any third party’s rights; or
  • otherwise violates a material term of the agreement.

11.2.      Unilateral action. If you do not remove or disable access to the prohibited content within two business days of our notice, we may remove or disable access to the prohibited content or suspend the services. Despite this clause, we may remove or disable access to any prohibited content without prior notice to you if we believe that it:

  • is illegal;
  • may disrupt or threaten the services; or
  • must be removed to comply with law or any judicial, regulatory or other governmental order or request.

11.3.      Geographic location. You will access all cloud hosting services from and store all your content in the location agreed between you and us.

12.        Security

12.1.      Physical data security. Our hosting provider takes reasonable security measures to protect the physical security of the data centres where we store your content.

12.2.      Electronic data security your responsibility. You are responsible for maintaining appropriate electronic security, protection, and backup of your content. This may include using encryption technology to protect your content from unauthorised access, and routine archiving of your content. You can customise the cloud hosting services for increased electronic security by:

  • installing third-party software;
  • implementing security controls; or
  • establishing and enforcing user access controls.

12.3.      Data safeguards. The cloud hosting services are designed to only allow your authorised users to access your content. You acknowledge that we do not have access to your content. You must issue us with temporary credentials if you request support from us that requires us to access your content.

12.4.      No backup. We are not required to make or maintain any additional backups of your content under this agreement.

13.        Your applications

13.1.      Limited right. You may install and host your applications using our services provided that you comply with the requirements and restrictions in our terms.

13.2.      Your responsibilities. You are solely responsible for:

  • operating your applications;
  • supporting and maintaining your applications;
  • ensuring that your personnel have the necessary rights to administer your applications on the cloud hosting services;
  • the conduct of your end users; and
  • ensuring that your end users comply with the terms.

13.3.      Your intellectual property. You are the sole and exclusive owner of all right, title, and interest in your applications and your content.

13.4.      Grant of license. You grant us an irrevocable non-exclusive limited licence to use your applications and your content in connection with providing the services.

14.        Support

14.1.      Basic support. We provide basic support to you for the cloud hosting services in the form of content posted on our website and a help desk.

14.2.      Our Help desk. We will provide a help desk during business hours for support requests.

  • Support level one is your responsibility and includes the initial recording and diagnosis of service requests reported to the help desk. You will resolve user errors and handle information requests. Your support resource will, before logging a service request with our help desk, thoroughly research any problem encountered and will make sure that all the details relating to the problem are available to disclose to our help desk.
  • Support level two is our responsibility and includes replying to support requests from your personnel placed with our help desk, stating the necessary information. The support request must be made in writing, either via email or using the portal on our website. Once a service request has been resolved, our help desk will inform you. You will within a reasonable period thereafter (having regard to when the problem would reasonably be detected by you again) inform us through our help desk whether the correction was satisfactory to you or not. If no notice is received, then the problem will be deemed to be corrected to your satisfaction.

14.3.      Third party supplier support. If a support request involves a third party supplier, we have primary responsibility for enforcing service levels and turnaround times from third party.

14.4.      End user support excluded. We are not obliged to reply to support requests from or relating to your end users.

14.5.      Additional support. You may request additional support over and above the basic support for the cloud hosting services that we provide. We will charge additional fees for any additional support.

15.        Your data

15.1.      Definition. Your data is any data belonging to you or your customer that:

  • you or your customer (or any third party on your behalf) provide to us; or
  • we generate, process, or supply to you or your customer in providing the services;

but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.

15.2.      You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.

15.3.      We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.

15.4.      Responsibility. We take the protection of your data very seriously and will always do everything in our power to protect it.

We will:

  • comply with all relevant laws that affect your data, including data protection, retention, and destruction laws;
  • comply with any of your policies or procedures relating to your data that you communicate to us timeously in writing;
  • have due regard to leading industry information security management codes of practice, where appropriate;
  • have an individual to oversee compliance with relevant data protection laws;
  • not sell, dispose of, or encumber any of your data or try to do any of those things;
  • be able to identify any of your data separately from any other data under our control; and
  • not disclose any personal information from your data, other than in terms of the agreement.

15.5.      Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that we:

  • we get your written permission to do so beforehand;
  • notify you in writing of: (i) the purpose of sharing your data with the subcontractor; and (ii) how we have carried out due diligence on them;
  • do so only through a written agreement with the subcontractor which imposes the same obligations on them as are imposed on us; and
  • remain fully liable for any processing of your data under the agreement by our subcontractor.

15.6.      Location. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.

16.        Confidential information

16.1.      Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details.

16.2.      Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

  • protect the other party’s interests;
  • only use it to comply with their responsibilities under the agreement;
  • only give it to their employees or agents that need it (and only as much as they need);
  • use reasonable security procedures to make sure their employees or agents keep it confidential;
  • get promises of confidentiality from those employees or agents who need access to the information;
  • not reveal the information to anyone else; and
  • not use it for any purpose other than under this agreement.

16.3.      End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:

  • the other party agrees that they may destroy or retain it instead; or
  • it is lawfully in the public domain;
  • someone else who is allowed to reveal it gives it to them;
  • someone gives it to them to comply with a court order or other legal duty.

16.4.      Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.

16.5.      Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

17.        Intellectual property

17.1.      Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.

17.2.      Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.

17.3.      Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.

17.4.      Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

17.5.      Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.

17.6.      Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.

18.        Non-solicitation

You will not contract with any of our personnel, other than through us, who were involved in providing services r for 12 calendar months after its termination.

19.        Fees and payment

19.1.      Monthly in advance. You will pay us the monthly access fee specified on the first calendar day of each calendar month, starting on the effective date.

19.2.      Debit order. Debit order payments will run on the 4th last working day of each month.

19.3.      Payments made. All payments must have been made by the 7th day of each month.

19.4.      Non-payment. We may suspend your account if payments remain unpaid after the 7th day of the month.

19.5.      Time and materials. We may charge you additional fees on a time and materials basis for time that we, in our reasonable opinion, spend in relation to the following:

  • data restoration or re-establishment or other assistance required by you that does not result from inherent errors in the cloud hosting services;
  • unauthorised use of our services; or
  • providing services to you in circumstances where any reasonably skilled and competent software as a service administrator would have judged your request to have been unnecessary.

19.6.      Fee increase. We are entitled to increase the fee once during each successive period of 12 calendar months calculated from the effective date by giving you one calendar months advance written notice. On receipt of the notification, you may terminate this agreement by giving at least one calendar months’ prior written notice.

19.7.      Additional fee. If, after the effective date, the fee payable by you increases as a result of an increase in the cloud hosting services for whatever reason, including you electing to use additional services, you will pay us the additional fee agreed by the parties.

20.        Suspension of the service

20.1.      Your content. We will not erase your content when we suspend your services.

20.2.      Without cause. We may modify, suspend, or discontinue providing the services without cause (with or without notice) and will not be liable.

20.3.      AUP violation. We may immediately suspend your right to use any of the services if you violate our acceptable use policy, that we may have from time to time.

20.4.      Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

21.        Our warranties

21.1.      Service warranties. We warrant that we will:

  • employ enough trained personnel with the knowledge and expertise to provide the services;
  • use reasonable efforts consistent with prevailing industry standards to maintain the services; and
  • provide the services in accordance with all applicable laws.

21.2.      General warranties. We warrant further that we:

  • have the legal right and authority to perform our obligations under the agreement; and
  • will not knowingly introduce any malicious software into your systems.

22.        Disclaimer of warranties

22.1.      Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause.

22.2.      Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

23.        Your warranties

23.1.      Agreement warranties. You warrant that:

  • no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
  • you are not breaching of any other agreement by entering into the agreement.

23.2.      Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

24.        Limitation of liability

24.1.      Direct damages limited. We are only liable to you for any direct damages that the services may cause up to the total amount of fees that you have already paid us for them.

24.2.      Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.

24.3.      Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

25.        Breach and termination

25.1.      Breach. If either party:

  • does not fix a breach within seven days of receiving written notice from the other party;
  • breaches the agreement materially twice or more in six months;
  • is bankrupt or has some legal disability;
  • takes steps to or is closed down (such as becoming insolvent or entering sequestration);
  • makes any settlement or arrangement with their creditors; or
  • fails to pay a court order against themselves for a significant amount within 21 days;

then the other party may:

  • make the party comply with the agreement; or
  • immediately cancel the agreement in writing and claim damages from the other party, including fees already due.

25.2.      Suspension. We may immediately suspend your right to use the services if:

  • you try to gain unauthorised access to them;
  • we decide that your use poses a security threat to us or another user other than you;
  • there is evidence of fraud on your account; or
  • we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.

We will not delete your content during the suspension of our services.

26.        Termination

26.1.      Termination for good cause. We may need to terminate the agreement immediately if:

  • we discontinue or stop providing the services;
  • believe providing the services could burden or pose a risk to us;
  • have to terminate to comply with a law; or
  • determine that providing the services has become impractical.

If we need to terminate, we will give you as much notice as reasonably possible in writing.

26.2.      Termination for convenience. You may terminate the agreement on at least 60 days’ written notice to us.

26.3.      Termination for abuse. We may terminate your agreement if you are found abusing our services or staff. Abuse will include abusing the services we provide as well as any abuse shown towards our staff members during their communication with you.

26.4.      Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.

27.        Effect of termination

27.1.      Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.

27.2.      Fees. Fees charged for our hosting services will not accrue once we have terminated the services.

27.3.      Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.

27.4.      No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.

28.        Disputes

28.1.      Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognized and appropriate forum for arbitration that is accessible to both parties.

28.2.      Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).

28.3.      Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

29.        General

29.1.      Governing law. South African law governs this agreement.

29.2.      Entire agreement. The agreement is the entire agreement between the parties on the subject.

29.3.      Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

29.4.      Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.

29.5.      Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

29.6.      Relationship. The agreement does not create an employment relationship between the parties.

29.7.      Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future services orders. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

29.8.      Waiver. Any favour we may allow you will not affect any of our rights against you.

29.9.      Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

29.10.   Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.

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