Evoweb General Terms & Conditions

1 Definitions

1.1 “Acceptance Date” – the date on which you accepted these terms, whether in writing or electronically;

1.2 “Activation Date” – the date on which EVOWEB gives you access to and/or enables you to use a product or service;

1.3 “Agreement” means the agreement concluded between you and EVOWEB in respect of the product or service contemplated herein which agreement will be exclusively governed by these terms and conditions and the product specific terms and conditions applicable to the relevant product or service;

1.4 “ECA” means the Electronic Communications Act, 2005;

1.5 “ECT Act” means the Electronic Communications and Transactions Act, 2002;

1.6 “ICASA” means the Independent Communications Authority of South Africa;

1.7 “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the aforegoing and any names, licenses, know how, trade secrets and data associated with the aforegoing;

1.8 “Legal Notices Website” means web-guru.co.za;

1.9 “EVOWEB Marks” means any trademarks, logos, brand names, trade names domain names or other names or marks of EVOWEB whether registered or not;

1.10 “EVOWEB”, “we”, “us” and “our” means Web Guru Design (Pty) Ltd, Registration Number 2014 / 216240 / 07, its affiliates and subsidiaries;

1.11 “NCA” means the National Credit Act, 34 of 2005;

1.12 “Website” means evoweb.host;

1.13 “Subscriber”, “you” or “Customer” means a user of any of our products or services;

1.14 “Uncontrollable Event” means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of EVOWEB including the termination or suspension of a service or product that may result in a delay or a failure to provide any product or service; and

1.15 “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991.

2 Commencement, Duration, Termination and Cooling-off

2.1 The Agreement will commence on the Acceptance Date and endure indefinitely until it is cancelled as provided for in this clause.

2.2 Duration

2.2.1 This agreement will run month to month, from the commencement date, until terminated by either party on 30 days’ notice. Pro rata rates will not apply. The monthly subscription is payable in advance.

2.2.2 EVOWEB may cancel the agreement on 20 (twenty) Business Days after giving you written notice to remedy a material breach of the agreement and you have failed to remedy that breach with such time; and

2.2.3 In the event that you cancel the agreement prior to the expiry of the agreement period you will remain liable for all amounts owing up to the date of cancellation and in addition EVOWEB will be entitled to impose a reasonable cancellation penalty in contemplation of the Agreement enduring for its intended term.

2.3 This agreement may be terminated by either EVOWEB or you on one calendar months’ notice, save to the extent provided otherwise in the Product Terms, which termination will take effect on the first day of the month immediately following the end of the applicable notice period.

2.4 Notwithstanding the termination of the Agreement, in the event that you continue to use the products or services despite the termination of the Agreement, you will remain liable for and promptly pay on demand all amounts that would have been due to EVOWEB as a result of the use of or access to the product or service and this Agreement shall be deemed to continue to apply until such time as all amounts due to EVOWEB have been paid in full.

3 National Credit Act CA and ECT Act

3.1 This agreement does not constitute a credit agreement or incidental credit agreement as contemplated in the National Credit Act (NCA). Although the Agreement is not a credit agreement as contemplated in the NCA, your application for a service or product may be subject to a credit referencing or risk assessment process. This means that EVOWEB may utilize the information provided by you including your personal information and request and receive information about you and your credit record (“Assessment Information”) from registered credit bureaux in order to determine whether you will be in a position to meet your obligations under the intended Agreement, and EVOWEB is entitled to list your details with registered credit bureau in the event of a default on your part. EVOWEB will be entitled to decline to activate a product or service that you apply for if EVOWEB reasonably determines that you may not be able to meet your commitments under the Agreement.

3.2 EVOWEB is entitled to perform these assessments each time you apply for a service or product.

4 Conditions of access

4.1 EVOWEB will make the services available to you on the Activation Date.

4.2 EVOWEB will, where relevant, issue a user name and password to you prior to the Activation Date in order to enable you to gain access to and/or use a service. In such instance, you will not be able to access and/or use a service without a user name and password.

4.3 You agree that:

4.3.1 you will use your user name and password for your own personal use only;

4.3.2 you will not disclose your user name or password to any other person for any reason whatsoever and that you will maintain the confidentiality thereof;

4.3.3 in the event that your password is compromised, you will immediately notify EVOWEB and change your password;

4.3.4 you, as the holder of the user name and password, acknowledge you are solely responsible for all payments in respect of a service charged to your EVOWEB account, irrespective of whether the service has been utilized or is being utilized by you or not and accordingly the entire amount outstanding on your EVOWEB account will be deemed to have arisen from (or relate to) your access to and/or use of a service;

4.3.5 you agree to cause all persons who use any products or services under your account or with your authorization to comply with the Agreement. All acts or omissions of all persons who use services under your account or with your authorization will be treated for all purposes as your acts or omissions;

5 Service Delivery, Service Availability

5.1 EVOWEB will make all its services and products available to you in accordance with the provisions of its Service Level Agreement and Acceptable Use Policy, which are available on our Website under Legal Notices.

5.2 EVOWEB will use reasonable endeavors to make its services available to its Subscribers, and to maintain the availability thereof for use by its subscribers. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.

5.3 EVOWEB will use its best endeavors to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.

6 Data Retention

6.1 We will use reasonable endeavors to ensure the safekeeping of any data or content which you may receive or upload to our servers from time to time, such as (without being limited to) photographs, websites, videos, data and e-mail messages (hereinafter collectively referred to as “your data”), subject to our Acceptable Use Policy. However, it is your obligation to keep copies and back-ups of your data, as:

6.1.1 we will not be liable for any direct or indirect loss or damages of any kind, which you may suffer as a result of the loss of your data, or any part thereof, for any reason whatsoever; and

6.1.2 we will, unless otherwise required by law, delete all your data from our servers within 30 days of termination of this Agreement.

7 Communication, Complaints Handling and Dispute Resolution

For any complaints or disputes, please send us an email to [email protected]

8 Payment

8.1 Billing will commence on the Activation Date.

8.2 You agree to pay all amounts due under this Agreement in consideration for a service or product in accordance with the product/service to which you have subscribed.

8.3 To the fullest extent permitted by law, all amounts due and payable in terms hereof shall be paid free of exchange and without deduction or set-off in such manner as EVOWEB may from time to time determine. You agree that:

8.3.1 EVOWEB will be entitled and authorized to draw all amounts payable in terms of the Agreement from the account specified by you (or any other bank or branch to which it may be transferred);

8.3.2 any debit order will commence on the Activation Date and will continue and not be revoked until termination of this Agreement or until all amounts due and owing to EVOWEB have been fully and finally discharged;

8.3.3 you will sign all such forms and do all such things as may be necessary to give effect to a debit order as contemplated in this clause 8.3.2.

8.4 Your first bill may be for part of a month and you will be charged for the number of days left in the month in which you signed up, plus the subscription for the next month.

8.5 Should you fail to pay any amount on the due date for payment then EVOWEB may, without prejudice to any of its other rights and remedies:

8.5.1 take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation the use of debt collection mechanisms;

8.5.2 suspend your access to the service or the use of any product without notice to you until such time as the outstanding amount has been paid in full; or

8.5.3 subject to clause 2, terminate this agreement with immediate effect.

8.6 In the event of EVOWEB suspending your access to the service, EVOWEB reserves the right to continue to charge you the minimum required to keep your account activated for the period of suspension, unless terminated by you in terms of this Agreement.

9 Software

Any software and accompanying documentation we provide to you remains our property or that of our licensors. You will take all reasonable steps to protect such software or documentation from theft, loss or damage. You will be obliged to review and agree to the applicable end user license agreement before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all end user license agreements will terminate upon termination of the Agreement.

10 Return, Exchange and Refunds

10.1 EVOWEB’s policy in respect of exchanges, returns and refunds depends on, inter alia, the type goods and the policy of the manufacturer or supplier thereof. Where the CPA applies to you, EVOWEB’s policy in this regard will comply with the requirements of the CPA in relation to exchanges, returns and refunds.

10.2 Warranties, if any, will ordinarily be included in the hardware packaging.

10.3 Where the CPA applies to you and/or the product or service in question, EVOWEB will provide, the warranties, undertakings and assurances as required under the CPA but subject to any limitations and restrictions as allowed under the CPA.

11 Security and Privacy

11.1 EVOWEB will be entitled to take whatever action EVOWEB may deem necessary and reasonable to preserve the security and reliability of its network.

11.2 You may not utilize any service in any manner which may compromise the security of EVOWEB’s network, or any other network connected to EVOWEB’s network, or tamper with a service or such a network in any manner whatsoever.

11.3 EVOWEB takes reasonable steps to secure your payment information. EVOWEB uses a payment system that is in EVOWEB’s reasonably opinion, sufficiently secure with reference to accepted technological standards at the time of the electronic transaction and the type of the transaction concerned.

11.4 EVOWEB will deal with your personal information in accordance with the provisions of our Privacy Policy which is available on our Legal Notices Website and in compliance with all relevant laws.

12 Acceptable Use Policy

You hereby agree to adhere to generally acceptable Internet and e-mail etiquette. In this regard you will be expected to have read and familiarized yourself with our Acceptable Use Policy.

14 Intellectual Property Rights

14.1 You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our services and/products.

14.2 You are prohibited from using any EVOWEB Marks without the prior written approval of EVOWEB.

14.3 Other than as specifically provided in the product or service specific terms and conditions, EVOWEB will wholly and exclusively retain all existing Intellectual Property Rights and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to software used by EVOWEB, its network infrastructure, e-commerce network infrastructure, business and the provision of any of the services in terms of the product or service specific terms and conditions.

16 Breach

16.1 Subject to any other provisions set out in these general terms and conditions and without prejudice to any of these provisions, should you be in breach of any provision of this Agreement, then EVOWEB shall be entitled, without prejudice to any other rights that it may have and to the extent required or permitted, as the case may be, by law, to forthwith:

16.1.1 afford you a reasonable opportunity to remedy the breach, taking into account the nature of the breach in question; or

16.1.2 suspend your access to a service;

16.1.3 cancel all agreements concluded between us; or

16.1.4 claim immediate performance and/or payment of all your obligations in terms hereof.

16.2 Should EVOWEB suspend, disconnect or terminate your service, EVOWEB will be entitled to, charge you a fee for reconnecting your service.

17 Indemnity

17.1 You hereby indemnify and agree to hold EVOWEB harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by EVOWEB as a result of any claim instituted against EVOWEB by a third party (other than you) as a result of (without limitation):

17.1.1 your use of our services or products other than as allowed or prescribed in the Agreement;

17.1.2 any other cause whatsoever relating to the Agreement or the provision of services or products to you where you have acted wrongfully or failed to act when you had a duty to so act.

18 Limitation of liability

18.1 Save to the extent otherwise provided for in this Agreement and the Consumer Protection Act where you are entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, we do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality or security of any product or service.

18.2 Without limiting the generality of the provisions of clause 18.3, EVOWEB shall not be liable for and you will have no claim of whatsoever nature against EVOWEB as a result of –

18.2.1 the loss of or access to any usernames or passwords which you are required to safeguard and not allow unauthorized access on the understanding that we will be entitled to assume that you are the person so using or gaining access to any service or account where your username or password is used;

18.2.2 any unavailability of, or interruption in the service due to an Uncontrolled Event;

18.2.3 any damage, loss, cost or claim which you may suffer or incur arising from any suspension or termination of the service/s for any reason contemplated in the Agreement.

18.3 In addition to and without prejudice to any other limitations of liability provided for in the Agreement and to the fullest extent permitted by applicable law, EVOWEB shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that EVOWEB is liable to you for any damages, EVOWEB’s liability to you for any damages howsoever arising shall be limited to the amounts paid by you under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.

19 Cession and Delegation

You may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of this Agreement without the prior written approval of EVOWEB. EVOWEB shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without your consent and without notice to you. “Affiliates” for this purpose includes EVOWEB’s holding company, the holding company(ies) of EVOWEB’s holding company (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by EVOWEB or are under common control with EVOWEB.

20 Jurisdiction

Notwithstanding clause 7 above, you hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by EVOWEB arising out of this Agreement, provided that EVOWEB shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 7 above.

21 Amendment of this agreement

EVOWEB reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our web site on a regular basis in order to determine whether any amendments have been made.

22 General

22.1 The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No changes or cancellation of this Agreement by you, including any changes to the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties, notwithstanding activation of the service.

22.2 EVOWEB is in terms of section 43 of the ECT Act required to make its contact details and certain other information available to its Subscribers who enter into electronic transactions with EVOWEB. This information is available under “ECT Act Information” under Legal Notices on our website.

22.3 You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.

22.4 No indulgence, leniency or extension of time which EVOWEB may grant or show to you shall in any way prejudice EVOWEB or preclude EVOWEB from exercising any of its rights in the future.

22.6 You warrant that as at the date of signature of the Application Form, all the details furnished by you to EVOWEB are true and correct and that you will notify EVOWEB in the event of any change to such details.

22.7 All our terms and conditions can be accessed, stored, and reproduced electronically by you.

23 All-Inclusive Website Terms

23.1 Websites developed by EVOWEB as part of our all-inclusive package will remain the property of EVOWEB, unless otherwise agreed to.

23.2 The customer is fully liable for copyrighted material, trademark, trade secret or other intellectual property right used without proper authorisation infringments.

23.3 If you would like to cancel the all-inclusive website design package and keep a copy of the website, a buyout fee will be calculated based on the number of months paid (minus hosting & maintenance fees).