PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
This Agreement constitutes the entire agreement between you and SME Hosting with respect to the SME Hosting services and supersedes all prior agreements between you and SME Hosting. SME Hosting 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. Any use by you of the SME Hosting services after the effective date of any such amendment, shall be deemed to constitute acceptance by you of such amendment.
This agreement covers your use of SME Hosting’s products, services, website, information, communications and any other SME Hosting service available to you. All such usage shall be subject to the terms and conditions contained in this agreement and the policies set out below including any the product specific terms and conditions applicable to the relevant product or service (collectively, “the / this Agreement”)
This Agreement applies to all accounts, sub-accounts, and alternative account names associated with your principal account. The Account Holder is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account.
SME Hosting’s failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right.
In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. The terms of this Section will survive any termination of this Agreement.
Save where otherwise provided for in this Agreement, if you:
- fail to pay any amount payable under this Agreement within ten days after receipt of written demand requiring such payment; or
- commit a breach of any provision (other than a payment obligation) of this Agreement and, if such breach is capable of remedy, fail to remedy such breach within thirty days after receipt of written demand requiring you to do so;
- are placed under liquidation, judicial management, business rescue proceedings or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;
- commit any act which if committed by a natural person would constitute an act of insolvency;
- become insolvent;
- compromise or attempt to compromise generally with any of your creditors;
- have a final judgment taken against you which is not satisfied within 30 days after the granting of such judgment,
then SME Hosting shall be entitled, without prejudice to any of its other rights under this Agreement and/or in law and by giving written notice, to immediately cancel this Agreement or to claim immediate specific performance of all of your obligations whether or not due for performance, in either event without prejudice to SME Hosting’s right to claim damages.
The interpretation and enforcement of this Agreement shall be governed according the laws of the Republic of South Africa (excluding its choice of law rules).
You consent to the jurisdiction of the South Africa courts.
The SME Hosting services are provided from Westville, Durban, South Africa, and this Agreement is deemed to have been entered into at Westville, Durban..
Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery, fax or by email. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th Business day after posting. Emails and faxes shall be deemed to be received on the Business Day they are sent if sent before 16h00 on that day or on the next Business Day thereafter is sent after 16h00 on a Business Day or if sent on a non-Business Day.
General Dispute Resolution
The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation and with a problem-solving mind set, without formal proceedings and in accordance with the various dispute resolution procedures provided.
In the event of the dispute not being resolved, please follow the general complaint procedure as stipulated by ICASA for all complaints excepts Billing disputes:You are required to direct a general complaint to complaints@SME Hosting.co.za. The complaint is required to be accompanied by the following;
Your full particulars and contact details;
- Your relationship with SME Hosting and any customer reference which may be applicable;
- A statement of the reasons for the complaint with enough detail to allow us to assess these; and
- Any relevant evidence or documentation you wish to submit in support of your complaint.
Under the ICASA Code of Conduct Regulations SME Hosting is required to:
- Acknowledge receipt of your complaint within three working days; and
- Determine an outcome for the complaint and communicate this to you within fourteen (14) working days.
Referral of Complaints to ICASA
If you are not happy about the outcome of the Complaint you have the right to escalate it to ICASA. If ICASA are not able to resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.
Please note that under the ICASA Code of Conduct Regulations 2008 you must give us an opportunity to resolve the matter within the 14 day period before you have the right to escalate your complaint to ICASA.
ICASA can be contacted in the following ways:
- telephone (011) 566 3000,
- fax (011) 444 1919 or
- email: firstname.lastname@example.org
Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in South Africa. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
The terms of this Section will survive any termination of this Agreement.
Billing Disputes Procedure
This Procedure sets out the obligations of SME Hosting and the Customer in resolving a Billing Dispute, including the manner in which Billing Disputes should be lodged and how they will be handled thereafter.
SME Hosting’s Billing Dispute Handling Procedure is intended to service both the Customer and SME Hosting’s interests by setting out clear rules and procedures to be used where Billing Disputes Occur.
“Billing Dispute” means an instance where a Customer states in good faith that their bill contains incorrect charges, payments or adjustments.“Billing Dispute Notice” means a notice submitted by the Customer in terms of this Procedure.“Billing Disputes Procedure”and “this Procedure” mean this Billing Dispute Procedure for the initiation and resolution of Billing Disputes.“Billing Enquiry”means the situation where the Customer seeks information or clarification relating to an Invoice including without limitation seeking clarification of charges or sources of usage. For the avoidance of doubt, this is not a Billing Dispute.“Business Day” means any day other than a Saturday or Sunday or a public holiday observed as such in the Republic of South Africa;“Complaint” means an expression of dissatisfaction or grievance made by a Customer, but does not include a request for information. A Complaint is not a Billing Dispute.
Any charge recorded on an Invoice (the subject of a Billing Dispute) which is not submitted in accordance with this Procedure is payable in full to SME Hosting by the Due Date of the Invoice.
For the avoidance of doubt the parties acknowledge and agree that:
An amount that is not in dispute (“Undisputed Amount”) cannot be withheld for any reason (including without limitation when that amount is on an invoice together with a Disputed Amount).
Only Billing Disputes can trigger the Billing Dispute Handling Procedure (and the potential right to withhold payment of Disputed Amounts from SME Hosting as set out below).
Billing Enquiries and Complaints are not Billing Disputes and do not trigger the Billing Dispute Procedure. Billing Enquiries should be directed to:
Complaints are dealt with under the SME Hosting Complaints Handling Procedure.
SME Hosting will not entertain any Billing Dispute based on unauthorised use of the services or on unauthorised use of the services by a third party, it being your responsibility to safeguard access to the services which you receive and to use them in the manner set out in the terms and conditions applicable thereto.
Customer’s obligations to first use this Procedure
As a current or prior Customer of SME Hosting, you agree to allow SME Hosting to attempt settlement of any Billing Dispute for 14 Business Days before raising a dispute with any third party, credit card company or bank. SME Hosting requires and you agree that it be the first option in Billing Disputes. Should SME Hosting receive a chargeback or other reversed charge from a third party, Credit Card Company or bank on your behalf before SME Hosting has been given a chance to resolve the issue, SME Hosting has the right to collect on the rendered services and any fees associated with those disputes.
Not all Billing Disputes may be settled to a customer’s satisfaction. Once this Procedure has been exhausted, a Customer may use any third party, Credit Card Company or bank in an attempt to settle the dispute. However, SME Hosting still retains the right to collect on any rendered services or fees that are due. Should SME Hosting be unable to reverse any disputed amounts with a third party, Credit Card Company or bank, SME Hosting will submit the full delinquent amount for Collections.
Time period within which Billing Disputes can be initiated
A Billing Dispute Notice may be lodged in the required manner until the passing of 60 days from the date of the relevant invoice.
Circumstances under which payment of a Disputed Amount may be withheld
You may only withhold payment of a Disputed Amount where SME Hosting receives a valid Billing Dispute Notice relating to such Disputed Amount at least 5 Business Days prior to the Due Date recorded on the relevant invoice.
Billing Dispute Notice
A Billing Dispute can only be validly initiated through the submission of a valid Billing Dispute Notice to email@example.com.
The Billing Dispute Notice should clearly set out:
- Invoice number and date;
- The amount in dispute (“the Disputed Amount”);
- The amount not in dispute (“the Undisputed Amount”);
- The full details of the dispute; and
- Any relevant evidence or documentation you wish to submit in support of your complaint.
Response to Billing Dispute Notice
Under the ICASA Code of Conduct Regulations SME Hosting is required to acknowledge receipt of your complaint within 3 Business Days.
SME Hosting shall provide a response to the Billing Dispute Notice within 14 Business Days, which response shall take one of the following forms:
- A rejection of the Billing Dispute Notice on the basis that:
- The Billing Dispute Notice was not received by SME Hosting within 60 days from the date of the relevant invoice;
- The Billing Dispute Notice does not contain all of the information required or was not submitted in accordance with the conditions of this Billing Dispute Procedure.
- The Customer has not made payment in accordance with (and does not have a right to withhold payment) in terms of the conditions inthis Procedure;
- SME Hosting has confirmation from the Customer that the dispute which is the subject of the Billing Dispute Notice has been resolved;
- The Customer is disputing the charges on the basis that the Customer did not authorize the particular use of the services by another person; or
- SME Hosting reasonably believes that the Customer does not have a bona fide dispute in relation to the charges.
- A request for information or documentation from the Customer lodging the Billing Dispute Notice which is reasonably required to assist SME Hosting in making a determination in the matter. The Customer shall provide such information or documentation as soon as possible and the running of the 14 Business Day period referred to below shall be suspended until such time as it has been received by SME Hosting
- A determination of the Billing Dispute and the reasons for such determination.
Referral to Senior Management
If you are not satisfied with SME Hosting’s response under this Billing Dispute Procedure then you must notify SME Hosting Senior Management ("SM Request") within 3 Business Days of receiving SME Hosting’s response, that you want the matter referred to Senior Management (“SM”).
Both parties agree:
- To ensure that SM meet to resolve the dispute within 7 Business Days of SME Hosting receiving the SM Request but in any event not later than 14 Business Days after the lodging of the Billing Dispute Notice.
- Any decision of SM will be final and binding on both parties.
- Both parties acknowledge and agree that if SME Hosting does not receive a Notification from you in accordance with this clause 72 then the Billing Dispute will be deemed to have been resolved in accordance with the response provided under section 72 and SME Hosting will have no further obligations in relation to the Billing Dispute.
Resolution, Agreement or Determination
If stipulated under SME Hosting’s response, or where SM agree on a resolution or reach a decision that you must make payment of a Disputed Amount, you must within 5 Business Days of the date of the determination pay the Disputed Amount.
If stipulated under SME Hosting’s response, or where SM agree on a resolution or reach a decision that SME Hosting must withdraw the disputed charge or refund a disputed charge previously paid, SME Hosting must as soon as practicable:
- Credit any Disputed Amount already paid by you.
Where a resolution or determination is made in accordance with this Billing Dispute Procedure then, subject to either party meeting the payment obligations specified in such resolution or determination, the Billing Dispute will be deemed to be resolved and SME Hosting will have no further obligations in relation to the Billing Dispute.
Effect of this Procedure on continued service provision
SME Hosting will not disconnect a service provided to you which is the subject of a Billing Dispute or take adverse collection procedures or impose late payment penalties or charges while attempting to resolve a Billing Dispute lodged in terms of this Procedure and until such time as SME Hosting has reached a determination and communicated this to you.
We reserve the right, however, to take such measures immediately:
- Where a determination of the Billing Dispute has been made and communicated to you; or
- Where you have indicated that you are unable to pay your invoice or bill or have filed or are the subject of any application to court for sequestration or liquidation or otherwise seek to reach a formal arrangement with your creditors.
Subject only to the above, the rights and obligations of each party under the Billing Dispute Procedure continue pending resolution of a Billing Dispute invoked under this Billing Dispute Procedure. For the avoidance of doubt this includes that SME Hosting shall continue to have the right to terminate or suspend the service in accordance with SME Hosting’s rights under the agreement that you have with SME Hosting.
Neither party shall use any information obtained from the other party during the course of any process invoked under this Procedure for any purpose other than the resolution of the particular Billing Dispute.
Should you wish to dispute an overage charge you may do so by following the Billing Dispute Procedure and requesting an overage investigation.
Should, however, the overages be accurate (within a 5% margin) a once off charge of R150.00 per disputed charge will be applied to your account.
Request for Reconciliation
Should you want a reconciliation done on your account, you may request one by following the Billing Dispute Procedure.
Should however the reconciliation prove the account to be accurate (within a 5% margin), a once off charge of R150.00 per reconciliation will be applied to your account.
Referral of Billing Disputes to ICASA
If you are not happy about the outcome of the complaint you have the right to escalate it to ICASA. If ICASA cannot resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.
ICASA can be contacted in the following ways:
- telephone (011) 566 3000,
- fax (011) 444 1919 or
- email: firstname.lastname@example.org.
Acceptable use policy
By using our services, you agree to comply with our Policies and Procedures, including this Acceptable Use Policy (AUP).
Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted material, violation of export restrictions, harassment, fraud, trafficking in obscene material, child sexual abuse imagery, drug dealing, and other illegal activities.
SME Hosting’s services and servers may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes a legal threat, or violates export control laws. Examples of unacceptable content or links: “Pirated software”, “Hackers programs or archives”, “Warez Sites”, “Irc Bots”, “Illegal Mp3’s” etc.
Due to the nature of a shared web hosting environment, SME Hosting reserves the right to ask customers to upgrade or correct issues pertaining to their shared web hosting package, or to correct issues on their shared web hosting package, should it adversely affect the network or server performance for the majority of our hosting customers.
The SME Hosting shared web hosting platform is intended for hosting a website with relevant content and function for a personal or small home business without the concern of traffic overages. The use of the service should not be indicative for large scale enterprises or applications where a dedicated server would be more suited.
SME Hosting prohibits the use of the shared webhosting service disk space to be utilised for purposes other than its intended function: content hosting, personal and small enterprise email and relevant web files.
The use of shared or dedicated hosting services for hosting torrent boxes and/or running proxies is strictly prohibited. Servers continuously running a risk of supporting these types of services will be disabled and cancelled from our network.
Posting of defamatory, scandalous, violent or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.
Any unacceptable use of the services constitutes a material breach of these Terms and Conditions and SME Hosting fully and strictly reserves its rights in this regard.
The provisions of this Policy are intended as guidelines and are not meant to be exhaustive. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this Policy, is prohibited. SME Hosting reserves the right at all times to prohibit activities that damage its commercial reputation and goodwill.
System and Network Security
Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following:
- unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic;
- interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- forging of any TCP-IP packet header or any part of the header information in an e- mail or a newsgroup posting; and
- employing posts or programs which consume excessive CPU time or storage space, permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for their own account; or resale of access to CGI scripts installed on our servers.
Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A user shall not use another site’s mail server to relay mail without the express permission of the site or distributing, advertising or promoting products or software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or spam.
It is contrary to SME Hosting’s policy for customers to use our servers to effect or participate in any of the following activities:
- To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner- published FAQ or description of the group or list;
- To send unsolicited mass e-mailings, if such unsolicited e-mailings provoke complaints from the recipients;
- To engage in any of the foregoing activities using the service of another provider, but channelling such activities through a SME Hosting provided server, or using a SME Hosting provided server as a maildrop for responses;
- To falsify user information provided to SME Hosting or to other users of the service in connection with use of a SME Hosting service.
Determination of a breach of this Policy
SME Hosting will be the sole arbiters and have a sole and unfettered discretion in determining what constitutes a violation of this Policy.
Consequences of breach of this Policy
When SME Hosting becomes aware of an alleged violation of its AUP (Acceptable Use Policy), SME Hosting will initiate an investigation (within 24-48 hours). During the investigation SME Hosting may restrict your access in order to prevent further possible unauthorized activity. If you are found in violation of our SPAM policy, SME Hosting may, at its sole discretion, restrict, suspend, or terminate your account and/or pursue other civil remedies. Also, SME Hosting reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. If such violation is a criminal offence, SME Hosting will notify the appropriate law enforcement department of such violation.
SME Hosting does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
You shall be held liable for any and all costs incurred by SME Hosting as a result of your violation of these terms and conditions. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the clean-up of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations.
First violations will result in a Cleanup Fee of R1500 and your account will be reviewed for possible immediate termination.
A second violation will result in Cleanup Fee of R3500 and immediate termination of your account.
The Customer who violates this policy agrees to also pay Investigation Fees of no more than R1500 per hour that SME Hosting personnel must spend to investigate any violations.
SME Hosting may, at times with reasonable notice to Customers, revise or amend its current Shared and Dedicated Hosting offerings relating to price, features, traffic allocations and disk sizes.
SME Hosting reserves the right to add, delete, or modify any provision of this Policy at any time without notice.
Reporting Network Abuse
Any party seeking to report any violations of SME Hosting’s policy may contact via e-mail: email@example.com
Website Take Downs
All queries related to website take downs may be directed to the Internet Service Providers’ Association (ISPA), which SME Hosting has appointed as its agent for the purposes of receipt of take down notices in accordance with Chapter 11 of the Electronic Communications and Transactions Act of 2002:
- Website: www.ispa.org.za
- Email: firstname.lastname@example.org
Disclaimers and Limitation of Liability
You agree that our entire liability, and your exclusive remedy, with respect to any Services(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services.
We disclaim any and all loss or liability resulting from, but not limited to:
- loss or liability resulting from access delays or access interruptions;
- loss or liability resulting from data non-delivery or data mis-delivery;
- loss or liability resulting from acts of God;
- loss or liability resulting from the unauthorized use or misuse of your account identifier or password;
- loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement;
- loss or liability resulting from the interruption of your Service.
You agree that we will not be liable for any loss of registration and use of your domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages.
Subject always to the provisions of the CPA, to the extent that it is applicable, SME Hosting’s services are provided on an as is, as available, basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. SME Hosting expressly disclaims any representation or warranty that the SME Hosting services will be error-free, secure or uninterrupted.
No oral advice or written information given by SME Hosting, its employees, licensors of the like, will create a warranty; nor may you rely on any such information or advice as if it were a warranty. The terms of this section will survive any termination of this Agreement.
SME Hosting will use its best efforts to maintain a full time Internet presence for the Account Holder. You hereby acknowledge that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error.
The terms of this Section will survive any termination of this Agreement.
Responsibility for content and Account Holder indemnities
You agree to indemnify and hold SME Hosting harmless from any and all Claims resulting from or connected with any activities conducted by you. You and SME Hosting will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement.
You agree not to store, transmit, link to, advertise or make available any images containing pornography through the Virtual Web Hosting service. SME Hosting reserves the right to refuse service if any of the content within, or any links from, your website is deemed illegal, misleading, or obscene, or is otherwise in breach of these terms or SME Hosting’s then current Acceptable Use Policy, in the sole and absolute opinion of SME Hosting.
SME Hosting will not change passwords to any account without proof of identification, which is satisfactory to SME Hosting, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes you, you understand that SME Hosting will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will SME Hosting be liable for any losses incurred by you during this time of determination of ownership, or otherwise. You agree to indemnify and hold harmless SME Hosting from any and all Claims arising from such ownership disputes.
You agree to indemnify and hold harmless SME Hosting and any other Account Holder from any and all Claims resulting from your use of the services provided by SME Hosting. The terms of this Section will survive any termination of this Agreement.
You agree not to harm SME Hosting, its reputation, computer systems, programming and/or other persons using SME Hosting’s services.
The terms of this Section will survive any termination of this Agreement
Non-transferability of services
Your rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of SME Hosting.
You are responsible for maintaining the confidentiality of your password. In the event of a breach of security through your account, you will be liable for any unauthorized use of SME Hosting services, including any damages resulting there from, until you notify SME Hosting’s customer service.
The responsibility of all passwords and other related sensitive information is assumed by you, should any additional fee’s arise from resource consumption due to poor credentials (such as, but not limited to blank passwords or “test” accounts) no fault shall be levied on SME Hosting