The laws of the Republic of South Africa shall govern these Terms & Conditions of Service .This agreement in each party irrevocably submits to the jurisdiction of the courts exercising jurisdiction in this country.
1.1 “Okuhle Digital” means either of OKGH (Pty) Ltd or Okuhle Digital or any other entity which Okuhle Digital may assign, cede or delegate any of their rights or obligations to.
1.2 “Okuhle Digital System” means equipment operated together as a system by Okuhle Digital to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators. and uninterruptible power supplies.
1.3 “Okuhle Digital Website” means the Internet website published at the URL “www.okuhledigital.co.za” or another URL that Okuhle Digital notifies the Client of from time to time.
1.4 “Agreement” means these General Terms & Conditions of Service and applicable Service Terms, Service Orders and all annexures to any of these documents.
1.5 “Application” means a request for initiation of a Service(s) and/ or provision of Good(s):
1.6 “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.
1.7 “Business Hour” means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
1.8 “Client” is the party described as such on any Application or Service Order executed between it and Okuhle Digital.
1.9 “Client Data” means Data:
1.9.1 transmitted to the Client using the Okuhle Digital System,
1.9.2 stored by the Client on the Okuhle Digital System (or on the Client System as the case may be), or
1.9.3 transmitted by the Client via the Okuhle Digital System,
1.9.4 in the day-to-day utilisation of a Service.
1.10 “Client Equipment” means any equipment installed at Okuhle Digital’s premises by the Client that Okuhle Digital does not own, including without limitation servers, peripherals, routers, switches, Software, Databases, Data cables, and uninterruptible power supplies.
1.11 “ClientSpace” means the Client account login area of Okuhle Digital’s portal, accessed by using Client credentials and passwords;
1.12 “Data” means electronic representations of information in any form.
1.13 “Database” means a collection of related data including, but not limited to, text, images sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
1.14 “Domain” means an Internet subdomain registered with an authorised registrar appropriate to its top-level domain rTLO”) and comprising its constituent domain name server records including, but not limited to, host names, aliases and mail exchange (“MX”)
records.
1.15 “Emergency Maintenance- means maintenance to the Okuhle Digital System intended to remedy existing circumstances or prevent imminent circumstances that arelikely to cause danger to persons or property, an interruption to the Communication Services, or substantial loss to Okuhle Digital, the Client or any third party.
1.16 “Fee- in respect of each Service will beasnoted in the Fee Schedule provided to the Client on initiation of the Service and adjusted from time to time.
1.17 “Goods- means any and all goods to be provided by Okuhle Digital to the Client in terms of this Agreement, including without limitation equipment, hardware and third party software.
1.18 “Good Industry Practice- means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
1.19 “Intellectual Property Rights- means patents. registered designs, trade marks (whether registered or otherwise), copyright. trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, that grant similar rights.
1.20 “Malicious Code- means anything that contains any computer software routine or code intended to:
1.20.1 allow unauthorised access or use of a computer system by any party, or
1.20.2 disable, damage, erase, disrupt or impair the normal operation of a computer system,
1.20.3 and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
1.21 “Multi-Factor Authentication- refers to the process of establishing a user’s identity using several concurrent means of verification such as one-time pin, security questions or other forms of validation.
1.22 “OTP- means One-Time Pin or One-Time Password that is used for login to Afirhost systems or for verification purposes.
1.23 “RICA- means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2003.
1.24 “Services- generally means internet services and access but for each specific service offering the meaning will bespecified in more detail, as provided in the additional Terms & Conditions of Service for each of the listed options.
1.25 “Service Order” means a goods, license. services and/ or work order agreed to in terms of this Agreement describing the specific Goods or Services to be provided by Okuhle Digital to the Client.
1.26 “Service Terms- means a document describing the terms on which Okuhle Digital will provide a particular Good or Service, as amended from time to time.
1.27 “General Terms” means this document.
1.28 “Software- means any computer programme (whether source- or object code), as well as any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
1.29 “Supplier” means a supplier of goods and/ or services to Okuhle Digital.
1.30 “Two Factor Authentication” refers to the process of establishing a user’s identity using various methods, such as one-time pin and security questions.
1.31 “User/s” means the Client or any other person accessing any the Services provided by Okuhle Digital.
2.1 The Goods and Services that Okuhle Digital will provide to the Client will be described in Service Orders.
2.2 These General Terms & Conditions of Service apply to all Services.
2.3 More details of particular Goods or Services may be contained in Service Terms.
2.4 The Service Order(s), Service Terms, and this document together form the Agreement between Okuhle Digital and the Client. If the Parties enter into a Service level Agreement or agree to an annexure to any of these documents, these will also form part of the Agreement.
2.5 If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: General Terms & Conditions of Service (this document), Service Terms, Service Order, Acceptable Use Policy, and Service level Agreement, unless otherwise expressly stated in writing.
3.1 Okuhle Digital will provide the Goods and Services to the Client as described in an Application or Service Order in terms of the Agreement.
3.2 Okuhle Digital reserves the right to refuse to commence provision of Services based on
the Client’s prior conduct.
3.3 An Application must be submitted via the Okuhle Digital Website or ClientSpace. Once an Application is accepted by Okuhle Digital it becomes a Service Order.
3.4 Each Service Order (read with the other documents mentioned above) will bea separate contract between the Client and Okuhle Digital (unless amended or renewed by another Service Order).
3.5 The terms of one Application or Service Order will not apply to another, unless a Service Order amends or renews an existing Service Order or adds Goods or Services to an existing contract.
3.6 The Client consents to Okuhle Digital carrying out a credit check on the Client at any applicable credit bureau, and may make the provision of the Goods or Services dependant on its satisfaction with the results. Okuhle Digital mayprovide information on the Client’s payment record to a credit bureau.
3.7 If the Client is a juristic person, Okuhle Digital may require one or more of its officers to stand surety for the Client’s obligations under this Agreement. Even if the Agreement has commenced, Okuhle Digital maywithhold providing the Services until the surety has been signed.
3.8 Depending upon the Service provided, Okuhle Digital may be obliged under RICA to obtain certain information and documents from the Client, and Okuhle Digital may withhold or suspend providing Services until the Client has provided the necessary information and/or documents to Okuhle Digital.
3.9 If the Client has not complied with a requirement of this clause, Okuhle Digital may delay providing the Goods or Services until the Client has complied. If the Client does not comply within a reasonable period, Okuhle Digital may terminate this Agreement and will notbeliable for any damage that the Client may suffer as a result.
3.10 Commencement of the Services is subject to a seven•day cooling•off period which will be interrupted if the Service in question is made available to the Client during this period.
4.1 The Client confirms that all statements made to Okuhle Digital aretrue and correct. Okuhle Digital reserves the right to request proof of any facts or claims. The Client also commits to providing Okuhle Digital with necessary information required in the provision of the selected Services, and (where applicable) consent to the use or sharing of this information with 3rd parties to comply with regulatory conditions (such as Domain Registration Listings) within the guidelines of applicable privacy legislation.
4.2 Okuhle Digital reserves the right to, at any time, request verification of the identity of the Primary Account Holder. Failure to produce such verification could result in summary suspension or cancellation of the product(s) and Services.
4.3 The Client (or the Client’s agent} certifies that the Client is above the age of 18 years, has full contractual capacity and (in the case of an agent) is duly authorised by the Client to contract on the Client’s behalf.
4.4 Okuhle Digital”s website and attached systems, such as ClientSpace. are designed to facilitate reasonable use of the Okuhle Digital products and Services. Okuhle Digital reserves the right to suspend or terminate users who are improperly using features of the systems to avoid billing. shaping, suspension or any other system controls, or exploit bugs or limitations in the system design to effect avoidance of system controls or commit crimes. Okuhle Digital reserves the right to deem an activity as unreasonable exploitation of the system” and will take appropriate action based on the circumstances and severity of the incident(s).
4.5 The Service Order(s) and this Agreement, the Services or the interpretation of the supporting documents shall be governed by the laws of the Republic of South Africa and the courts of South Africa will decide any disputes.
4.6 If the Client or its staff engages in behaviour that is a contravention of the Acceptable Use Policy or may be considered offensive to Okuhle Digital or its staff. Okuhle Digital reserves the right to suspend or terminate the Client”s Services, irrespective of the form and medium of this abuse.
4.7 In the event that any of the terms of this document are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
4.8 Okuhle Digital reserves the right to remove any content hosted by a Client which it considers illegal or contrary to the AUP or for which it has received a takedown notice.
5. These Terms & Conditions of Service are applicable to all clients, users and potential users of OKuhle Digital services.
6.1 Clients will be held accountable for their conduct towards Okuhle Digital staff andin the public domain with regard to allegations or malicious conduct directed towards Okuhle Digital or its staff.
6.2 Abusive behaviour, including (but not limited to) aggression, bullying, offensive language or conduct, including threats, humiliation or any type of intimidation on a forum or directed at Okuhle Digital or its staff will bedeemed abusive and will not be tolerated. Such conduct may constitute an AUP violation and Okuhle Digital reserves the right to suspend or terminate Services to a Client in such cases.
6.3 Clients using public platforms to spread libel, false allegations, unreasonably or maliciously diminish the reputation or public perception of the Okuhle Digital brand (or its staff) mayhave their Services suspended or terminated, depending the severity and circumstances of the incident(s), and may also be regarded as contrary to the AUP.
7.1 Okuhle Digital cannot guarantee the provision of the requested Service upon the receipt of an Application.
7.2 Provision of the Service is subject to Okuhle Digital confirming that it is technically feasible to do so.
7.3 Applicants will be formally notified after receipt of an Application whether or not the Service can be provided.
8.1 Okuhle Digital offers online application and signup for all products and Services only via ClientSpace. The Client is solely responsible for ensuring that their choice of product or service conforms to their requirements or desired outcome. Okuhle Digital will notbe liable for compensation, costs or damages resulting from incorrect selection of products or services, or resultant delays in rectifying such errors.
8.2 Sign-up for products and services is subject to the cooling-off period described in section 44 of the Electronic Communications and Transactions Act ( the ECTAct”).
8.3 Okuhle Digital provides Services on the basis of information provided by the Client, and Okuhle Digital offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Client.
8.4 Okuhle Digital reserves the right to stop offering particular Services if it deems it necessary. Okuhle Digital will then either provide the service for the remainder of the time that has been paid for or refund the amount paid for that specific package.
9.1 Clients may only use a referral programme to refer other possible clients. Clients that try to refer themselves via other accounts, whether setup using spoofing methods or simply as duplicate referrals will not receive any discounts.
9.2 Should a referred client decide to cancel its services within three months of signup, Okuhle Digital reserves the right to reverse both the referrer and the referee’s credits.
10.1 Okuhle Digital reserves its rights to change its prices at any time on reasonable notice, which will not be less than 30 days, as per the minimum term of a month to month agreement.
10.2 Okuhle Digital only accepts Debit Order and Visa/Mastercard payments for month to month services, and will only accept alternative payment under specific circumstances and only by prior arrangement at Okuhle Digital’s discretion.
10.3 The Client’s monthly debit orders of the Fee will be submitted monthly in advance on or about the first Business Day of the month. This will apply to both Debit Order Payments and Visa/Mastercard Payments.
10.4 Okuhle Digital will not accept any liability or responsibility for delays, suspensions or impact to Services due to use of non-approved payment methods by Clients,
10.5 If the Client’s debit order bounces for any reason, Okuhle Digital reserves the right to resubmit the debit order at any time.
10.6 Non-payment of any Fee by its due date, whether as a result of unpaid Debit Orders, declined cards or any other cause may result in immediate suspension of Services (which may not be limited to the particular Service in question). Okuhle Digital retains the right to suspend any Services for non-payment, and to withhold such Services until all arrears are settled in full on any andall products and Services.
10.7 Services which have been suspended for non-payment of Fees will remain suspended until payment has been made and the Service is reconnected as described below. The Client will not be credited for data or Services that would otherwise have been available to the Client during the period of suspension.
10.8 If the Client remains in default of a monthly Fee for two consecutive calendar months. Okuhle Digital may terminate the agreement with immediate effect. The Client will remain liable for all Fees and charges for any period of suspension.
10.9 Should the Client settle the unpaid Fee they will be reconnected as described below.
10.10 Okuhle Digital may charge an Admin Fee for failed or returned payments. regardless of method of payment or the reason for non-payment. Such Admin Fees are payable immediately and in conjunction with the outstanding fees which resulted in non-payment. Admin Fees will be calculated on a sliding scale based on the number of incidents of non payment on the Client’s payment record. Non-payment of Ad min Fees will be considered non-payment and will be subject to the same terms. Once levied, Admin Fees are not recoverable or reversible, regardless of whether payment is made within the prescribed period.
10.11 If the Client’s Services are suspended or terminated for any reason, including non payment, Okuhle Digital may charge a Reconnection Fee for subsequent reactivation of services as described in ClientSpace. Reconnection Fees are payable in full before any services can be reactivated, once suspended. Okuhle Digital may charge multiple reconnections Fees where multiple products are affected, and may charge “escalating” penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice Okuhle Digital’s right to enforce such penalties in full at anytime (within their discretion).
10.12 Reconnection of Services may be subject to a waiting period of up to 72 hours, at Okuhle Digital’s discretion, regardless of when payment is received or cleared. 10.13 In cases of suspension of Services due to non-payment, Okuhle Digital reserves the right to levy both Reconnection Fees and Admin Fees. Any and all penalty fees must be settled in full, prior to reconnection of affected services.
10.13 Both Admin and Reconnection fees will not exceed R400 (charged on a sliding scale based on the number of incidents of non-payment), and this amount is based on (but not limited to) a reasonable estimation of accumulated administrative costs (such as labour), bank penalties and resubmission charges levied by payment carriers.
10.14 In the case of billing disputes, the onus is upon the Client to raise such disputes in good time through the complaints procedure set out in these Terms & Conditions of Service to prevent interruption of services while the billing is in dispute. Reparations will be made to Clients with successful disputes by means of an account credit or refund, at Okuhle Digital’s discretion.
10.15 Okuhle Digital reserves the right to terminate services where a Client has shown a repeated disregard for payment terms and consistently fails to make regular scheduled payments on time and using approved payment methods. The conditions of termination will be based on guidelines determined at Okuhle Digital’s discretion and may vary. The means and terms of termination will be determined at Okuhle Digital’s discretion. Notice of termination will be provided to the best of Okuhle Digital’s ability, but Okuhle Digital will not be held liable for claims or requests for further provision of services once a Client’s services have been terminated due to non-payment.
10.16 Unless otherwise agreed:
10.16.1 Billing will commence on the date that Service provision commences. Partial months will be charged pro rata.
10.16.2 Services are billed in advance and all invoices must be paid by the Client in advance.
10.16.3 Any Services invoiced in arrears are payable on presentation of invoice.
10.16.4 All Fees and other amounts payable are quoted exclusive of VAT.
10.17 Interest will be charged on any amount that remains unpaid by the Client beyond the due date of payment:
10.17.1 The interest rate will be 2%(two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month.
10.17.2 The prime overdraft rate will be as charged by Okuhle Digital’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.
10.18 The interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Client agrees and undertakes to pay the interest.
11.1 By accepting these terms, the Client hereby authorizes Okuhle Digital to debit their nominated bank account or Visa/Mastercard any variable amount pertaining to the service or products they have selected, on sign up for a calculated pro-rata and thereafter at the beginning of each month (or on sign up entirely for purchase of non-service products). This sum being the amount for settlement of the monthly amount due by the Client in respect of services or products.
11.2 The Client authorises Okuhle Digital’s nominated agent to debit their bank account or Visa/Mastercard on Okuhle Digital’s behalf !the “authorized party”). The debit authority will remain in force until such services or products are cancelled, subject to the condition that Client agrees that debits related to cancellation notice periods will be honored before the expiration of the debit authority.
11.3 The Client agrees that the authorized party may freely cede, delegate or assign any of its rights or obligations in terms of this debit order instruction without consent from the Client and that the Client may not cede, delegate or assign any of their rights and obligations in terms of this debit order instruction to any third party without the prior written consent of the authorized party.
Term and Termination
12.1 Okuhle Digital operates Month-to-Month contracts. Either the Client or Okuhle Digital may terminate the agreement, or a particular Service, by giving one calendar month’s notice to the other. For example if notice is given on the 19th of March, termination will take effect on the 1st of May. Particular Service Terms may allow for shorter notice periods.
12.2 The Client must give notice of termination to Okuhle Digital via ClientSpace. Cancellation of any Service is the Client’s responsibility and all tools to effect such cancellation are provided in ClientSpace. The Client is responsible for ensuring that such cancellation of service is actioned with due attention to terms of cancellation. as well as cancellation conditions which require the Client to specifically indicate a required process. Should the Client incorrectly complete the cancellation process, Okuhle Digital will not be liable for any additional costs or compensation due to the error.
12.3 Either party may terminate this Agreement and any service provision where there is a breach of this Agreement by the other which has not been remedied within seven (7) days of receipt of written notice to do so.
12.4 Okuhle Digital reserves the right to terminate agreements based on a breach of this agreement, or linked agreements (such as their Acceptable Use Policy) which is viewed as a breach of the whole service contract.
12.5 The Client acknowledges that Okuhle Digital may terminate this Agreement by written notice, including email, and without Liability in the event of the termination of its agreement with an upstream licensee relevant to the provision of any connectivity Service.
12.6 Okuhle Digital reserves the right to deactivate or terminate selected Free Products. such as Fax2Email, should they not be used within a prescribed period or at Okuhle Digital’s sole discretion. Such termination will take place automatically. as per product specifications, and may occur without prior warning. Okuhle Digital accepts no liability should such termination take place, and not warranty is made regarding the availability of said products in the future. For example, should a Fax2Email be deleted if not used within 90 days. Okuhle Digital makes no warranty that the number can be made available again. and accepts no liability for any consequences resulting in the deletion of the product. Okuhle Digital reserves the right to terminate products provided as Free products where a breach has occurred jsuch as non-payment) in relation to other products, whether or not such breach has direct or indirect bearing on the Free product service provision.
13.1 Should Okuhle Digital agree to the acquisition or transfer of any or all of it’s services to another company, such services and services agreements will be transferred to the acquiring entity. Clients affected will be notified of such changes and any potential impact to their service agreement within the minimum term (30 days) of a month to month agreement.
14.1 Clients signing up for services as a Primary Contact are considered as Mthe clientM and no other parties will be permitted access or authority to the Client Account, even if they are a 3rd party recipient or affiliate of the “client-.
14.2 Okuhle Digital will observe all privacy of information best practices. in accordance with the applicable laws of South Africa, including the Protection of Personal Information Act (POPI) of 2013.
14.3 The Client consents to Okuhle Digital processing Personal Information transmitted to the Okuhle Digital System in a way which is consistent with the Service being provided. Where the Client’s use of a Service Leads to the transmission of Personal Information to or from the Republic of South Africa, the Client acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Client warrants that it has obtained the consent of any third party for the useof that party’s Personal Information in this way, or otherwise that such processing is lawful, and indemnifies Okuhle Digital from any claim brought by such third party as a result of its failure to do so.
14.4 Okuhle Digital may retain backups as a matter of course for up to one year after termination, and the Client consents to such retention. However Okuhle Digital gives no warranty in respect of the effectiveness of such backups (if any).
15.1 Okuhle Digital will implement measures in line with Good Industry Practice to ensure the security of the Okuhle Digital System and the physical security of Okuhle Digital’s premises. but gives no warranty that breaches of security will not take place.
15.2 If the Client discovers a security violation, or thinks that a security violation is imminent, it must immediately notify Okuhle Digital in an appropriate way that does not further compromise security concerns.
15.3 If the Client suffers damage as a result of loss or corruption of Client Data through a security violation, it will be liable for the damage if the violation was the Client’s fault.
15.4 The Client must not do anything that may prejudice the security of the Okuhle Digital System. and must take all reasonable measures necessary to ensure that:
15.4.1 no unlawful access is gained to Okuhle Digital’s premises, the Okuhle Digital System, or the Client’s own system;
15.4.2 no Malicious Code is introduced into the Okuhle Digital System; and
15.4.3 the Client Data is safeguarded.
15.5 If a security violation occurs, or Okuhle Digital is of the view that a security violation is imminent, Okuhle Digital may take whatever steps it considers necessary to maintain the proper functioning of the Okuhle Digital System including without limitation:
15.5.1 changing the Client’s access codes and passwords (or those of any user of the Okuhle Digital System). and
15.5.2 preventing access to the Okuhle Digital System.
15.6 Okuhle Digital takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time Limit.
15.7 The Client must give its full cooperation to Okuhle Digital in any investigation that may be carried out by Okuhle Digital regarding a security violation.
15.8 If the Client is providing any service to third parties that makes use of the Okuhle Digital System, the Client must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 15.
15.9 Okuhle Digital may on prior written notice to the Client inspect the Client’s installation and Client Equipment located on Okuhle Digital’s premises to ensure
15.10 By signing up and submitting personal information to Okuhle Digital, clients expressly agree to validation and verification methods such as Two Factor Authentication and/or Multi-Factor Authentication, using personal information submitted, or such information as required by Okuhle Digital from time to time. The method of verification used will be implemented at the discretion of Okuhle Digital. Clients hereby grant authority to Okuhle Digital to use personal information for this purpose, including sending OTP information via SMS to their mobile phones.
16.1 Okuhle Digital may, subject to this Agreement or Acceptable Use Policy, suspend or terminate services of a Client in its absolute discretion by providing email notice if:
16.1.1 the Client commits a serious or repeated breach of the Agreement or the Client engages in any conduct which in Okuhle Digital’s opinion would have a negative impact on Okuhle Digital, other clients or Okuhle Digital’s staff or is detrimental to the welfare, good order or character of Okuhle Digital; or
16.1.2 Any part of the Client’s Fees are not paid in full when due; or
16.1.3 The information the Client supplied to Okuhle Digital is found to be incorrect or false:
16.1.4 Okuhle Digital reasonably thinks that the Client’s use of the Services may result in the commission of a crime or is otherwise unlawful.
16.2 Okuhle Digital reserves the right to effect such suspension or termination without notice, depending on the severity of the breach, but will undertake to inform Clients where possible. Upon such suspension or termination, such Clients:
16.2.1 Will not be eligible for reimbursement/ compensation, unless at Okuhle Digital’s discretion
16.2.2 Will not be eligible for payment under the Double Money Back Guarantee or similar promotion
16.2.3 May be further barred from signing up for any services with Okuhle Digital in the future
16.2.4 May be reported to governing bodies, such as lSPA, for listing purposes
16.2.5 May be listed with applicable authorities and credit bureaus.
16.3 T he period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
17.1 Okuhle digital will not be liable to the client or any third party in respect of any and alt damages, Loss, claims or costs, of whatever nature and including but not limited to direct, indirect, consequential or special damages, suffered by the client or third party, howsoever arising, and Okuhle Digital will moreover not be liable whether the loss was the result of the act or omission of an Okuhle Digital employee. vicarious or strict liability.
17.2 In the event that Okuhle Digital is nonetheless held liable, the quantum of Okuhle Digital’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss. in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of Okuhle Digital or any other cause.
17.3 use of the services indicates that the client indemnifies and holds harmless Okuhle Digital in respect of any damages, loss or costs or claims instituted against Okuhle Digital arising from any application or subscription to or use of any service or breach of the terms and conditions applicable to it.
17.4 These limitations on liability and indemnities apply to the benefit of Okuhle Digital andOkuhle Digital’s Affiliates, directors, officers, employees, contractors, agents and other representatives, as well as any third parties whose networks are connected to the Okuhle Digital System.
17.5 Nothing contained in this clause 17 will limit the Client’s liability in respect of charges incurred for ongoing Services.
17.6 If the Consumer Protection Act 68 of 2008 is applicable to this Agreement, and any provision of this clause 17 is found by a court or tribunal with jurisdiction over Okuhle Digital to be unfair, unreasonable or unjust, then that provision (whether it be a word. phrase or sub-clause) will be severed, and the remainder of this clause 17 will have full force and effect.
17.7 In the case of ambiguity, this clause 17 wilt take precedence over any expression of the Parties’ intention. whether express or implied, that maybe contained elsewhere in this Agreement.
18.1 All requests by the Client for the provisioning, modification or termination of Services, and for modification of contact and other personal information must be made via ClientSpace and Okuhle Digital reserves the right to ignore any such request made in any other manner.
18.2 The Parties choose their addresses where they will accept service of any notices/documents for all purposes (apart from as described in clause 19.1) arising from this Agreement (domicilium citandi et executandi}:
18.2.1 in the case of Okuhle Digital, 377 Rivonia Boulevard, Edenburg. 2128
and
18.2.2 in the case of the Client, the addresses set out in the most recent Service Order agreed between the Parties.
18.3 Either Party may vary its given postal address or other contact details by notifying the other Party in writing.
18.4 Any notice given in terms of this Agreement must be in writing and any notice given by any Party to another rthe addressee”) which:
18.4.1 is delivered by hand will be deemed to have been received by the addressee on the date of delivery: or
18.4.2 if sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax and if outside such Business Hours then at the beginning of the next Business Day; or
18.4.3 is transmitted by email will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee: or
18.4.4 is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its chosen postal will be deemed to have been received by the addressee on the 7th !seventh) day after the date of posting.
18.5 Despite the above:
18.5.1 any notice that Okuhle Digital sends by email to an email account hosted on the Okuhle Digital System by the Client will be deemed to have been received by the Client on the date of transmission: and
18.5.2 if a written notice or communication is actually received by one of the Parties from the other, this wilt be adequate written notice or communication to that Party.
19.1 Whole Agreement. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to by both parties will be of any effect.
19.2 Applicable Law & Jurisdiction. The law of the Republic of South Africa will apply to this Agreement, its interpretation and any matter or litigation relating to or arising from it. and the parties consent to the jurisdiction of the courts of Republic of South Africa in this regard.
19.3 Survival. For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty extending beyond the termination or expiry of this Agreement will survive the termination or expiry of this Agreement and continue in full force and effect.
19.4 No Indulgence. If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still been forceable.
19.5 Representatives. The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities. and accept personal liability under this Agreement should they prove not to be so authorised.
19.6 Reading Down. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void. illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
19.7 Severance. In the event that any part of this Agreement is found to be partially or fully unenforceable because it does not comply with anyLaw, or for any other reason. this wilt not affect the application or enforceability of the remainder of this Agreement.
1.1 In addition to the General Terms, these Terms & Conditions of Service govern the use of the Okuhle Digital domain registration and hosting services. By contracting with Okuhle Digital for the services a Client will be lawfully regarded as having agreed to their use of the services specified being governed by this Agreement.
2.1 Okuhle Digital registers domains on the Internet through the relevant governing bodies and hosts websites and related material on the Okuhle Digital server(s) on behalf of Clients. These Terms & Conditions of Service apply to the use and registration of domain names and the web hosting services offered by Okuhle Digital.
2.2 Okuhle Digital registers domains through approved Domain Registrars, such as Reseller Club (for gTLDs). Okuhle Digital may, at its discretion use other approved entities for registration, but in general may limit domains offered based on availability from the registrar concerned.
2.3 Okuhle Digital’s hosting and free registration is sold as a bundled package and cannot be separated. i.e. Okuhle Digital will not pay tor registration if it is not combined with any of their hosting products.
2.4 The Client will be bound by the terms and conditions of the relevant domain name space (e.g .. com or .co.za) under which any domain name registered on its behalf falls, and should become familiar with them. Okuhle Digital may post links to these Terms & Conditions of Service on the Okuhle Digital Website purely as a convenience to the Client.
2.5 Where Okuhle Digital is acting as a registrar or reseller in registering a domain name for the Client, the Client may be required to agree to further terms. Okuhle Digital will provide the Client with a link to these terms, which are incorporated into this Agreement by reference.
2.6 Okuhle Digital will strive to ensure that registration and subsequent DNS propagation is effected in the shortest period of time. However, Okuhle Digital cannot be held liable for any delays that may accompany the registration of domains. Initial Setup fees are non• refundable. Domain Name Registration fees constitute a once•off payment subject to certain renewal charges.
3.1 Domain registration may be offered, from time to time. free of charge with Hosting products, depending on the nature and type of TLD (Top Level Domain). This offer is based on the assumption that the domain (and site content) will be hosted with Okuhle Digital for a reasonable period. Okuhle Digital reserves the right to, at their discretion, charge a parking fee where a minimum period (3 months) has not been observed on the Hosting product before downgrading to a Parking product. The fee will depend on the type of domain and applicable administration fees. Waiving such fees will be entirely at Okuhle Digital’s sole discretion.
3.2 Okuhle Digital reserves the right to charge a domain registration fee (in arrears) for any domain name which is registered as a FREE domain with a hosting package that is cancelled (or the domain is transferred) within 12 months of sign up. Such fee(s) will be invoiced exclusively at Okuhle Digital’s discretion, and no leniency extended to Clients on previous occasions will in any way prejudice Okuhle Digital’s right to enforce this clause. Such fees must be settled before any domain transfer can be effected with the applicable registrar.
3.3 Okuhle Digital will not tolerate any abuse of their free registration policy. Any such abuse will result in the immediate termination of accounts concerned and Service Agreement, as well aspossible further action to recover applicable costs from the Client.
3.4 Okuhle Digital only offers Free Domain registration for “.co.za domains with new hosting package signups, or Domain Parking offered as aFree Gifr in ClientSpace. Other TLDs or gTLDs are not included in the Free Domain Registration offer. Okuhle Digital will register domains as per the clauses above, but will notberesponsible for any further costs in relation to the domain, such as Annual Renewal Fees, Redemption fees or any other fees which may become payable in respect of domain ownership. Clients are exclusively responsible for such fees, and Okuhle Digital will notenter into anydisputes resulting from non•payment. Should such domains be automatically renewed, Clients will be billed for such renewal without exception. Clients not wanting to continue with a specific domain must ensure that cancellation is effected before any such renewal is actioned by Okuhle Digital with the registrar concerned.
4.1 Okuhle Digital will register a domain for a specified period (generally one year)
4.2 Thereafter, the Client is solely responsible for ensuring that the domain is renewed at the end of that period, and subsequent periods, until the domain is either cancelled or transferred by the client. This includes domains which have been set to auto•renew.
Should the auto-renewal process fail, the onus will be on the client to notify Okuhle Digital of the failure.
4.3 Okuhle Digital will endeavour to send a courtesy reminder to the Client, such as an SMS, email, or a ClientSpace or Okuhle Digital App notification. Such reminders in no way transfer responsibility to Okuhle Digital for ensuring that the domain is renewed.
4.4 Should this reminder fail to reach the Client, or should the reminder fail to be issued, this will not consitute a breach of this agreement, as this is solely performed as a courtesy.
4.5 Clients registering domains must take note of the registration date, and ensure that renewal is effected.
4.6 Clients may manually renew domains by accepting renewal in ClientSpace, or by selecting Auto•Renewal in ClientSpace and ensuring that this is effected by Okuhle Digital.
5.1 Okuhle Digital will transfer existing (registered) domains from existing hosting providers to Okuhle Digital’s DNS and web servers. Upon requesting the transfer, and accepting the relevant Service Terms, the Client explicitly agrees that it has the authority to do so, being the registrant of the domain in question, or having been nominated as an agent of the registrant. The Client thereby indemnifies Okuhle Digital from any disputes regarding ownership of the domain and any claims as a result thereof.
6.1 Cancellation will be dealt with as per the General Terms.
6.2 Cancellation, by the Client or Okuhle Digital, will result in any data being permanently removed from Okuhle Digital’s servers. Clients are solely responsible for ensuring that backups are made of web content and email data, or any other data stored on their hosting space. Okuhle Digital will not be liable for loss of data, or be obliged to provide any such data once the hosting contract term has expired. Any backups made by Okuhle Digital will be made for legal purposes and not for data retention purposes and will not necessarily
be made available to Clients on request.
7.1 Payment will be dealt with asper the General Terms.
7.2 In the case of a website being suspended due to non-payment a reconnection fee will be payable before the website is unsuspended. An additional waiting period of up to 72 hours may be imposed in the case of multiple payment bounces.
8.1 The Client’s use and registration of its selected Domain Name/sand is therefore not obliged to either advise the Domain Name client about possible conflicting third party rights or to take steps to ensure against possible disputes concerning a third party’s intellectual property or other rights.
8.2 Okuhle Digital reserves the right to disclose pertinent information to Registrars for public disclosure as per the Terms and Conditions of the Registrar. Okuhle Digital will not beheld liable for anyclaims of infringement of privacy by fulfilling such registration conditions.
8.3 This forms a regulatory requirement by the registrar, and there a Service Agreement requirement to the Client.
8.4 The Client indemnifies Okuhle Digital by warranting that the use or registration of the Domain Name by a Client does not interfere with nor infringe the rights of any third party in any jurisdiction with respect to trademark, service mark, trade name, company name, close corporation name, copyright nor any other intellectual property right, and that Client has the right to use the Domain Name as requested.
8.5 Okuhle Digital cannot act as an arbiter of disputes arising out of the registration and use of Domain Names. At the same time, Clients acknowledge that Okuhle Digital maybe presented with evidence that a Domain Name registered by a Client violates the rights of a third party. In such instance Okuhle Digital shall be allowed to provide a complainant with the Client’s name and address and all further communication will exclude Okuhle Digital and Okuhle Digital will have no further obligations to the Client. In such instance the Client shall be entitled to continue using the Domain Name registered for the Client by Okuhle Digital until a court or other body with jurisdiction directs otherwise.
The ZACR policy indicates that the registrant contact details has to be updated to the legitimate beneficiary of the domain which would be the domain owner and not the reseller.
9.1 The registrant, being the legitimate beneficiary of the domain name service, is accurately identified on the domain name record (full legal name); and
9.2 The registrant’s designated email address is accurately identified on the domain name record where prescribed.
10.1 Okuhle Digital does NOT provide SMTP mail services by default with shared hosting packages.
10.2 Okuhle Digital reserves the right to suggest suitable alternatives to the Client andI or charge for excessive traffic or system resources as it deems necessary, at its sole discretion. Excessive traffic or use of system resources will be determined as set out in the Acceptable Use Policy.
10.3 Okuhle Digital reserves the right to move a website between web servers and Internet backbones, both within South Africa and internationally as it deems necessary. If a Client moves in excess of their monthly web traffic allocation, then the Client will be contacted and various options will be presented.
10.4 Okuhle Digital reserves the right (but does not assume any obligation) to inspect the contents of data that the Client transmits, receives or stores on an Okuhle Digital Server to ensure compliance with this Agreement, Okuhle Digital’s AUP, or any applicable laws regulations or codes of practice.
10.5 The Client must immediately and adequately respond to a denial of service attack (DOS/ DDOS). If the Client’s facilities are targeted by a DOSattack that affects other network users, the Client’s Service will be suspended.
11.1 Clients are solely responsible for backing up their data and Okuhle Digital strongly encourages ALL Hosting Clients to do so as frequently and completely as possible. Okuhle Digital will not be liable for any data loss or any other losses or damages related to backups or data recovery without exception.
11.2 Okuhle Digital may, in some instances, offer a separate backup service in conjunction with dedicated hosting, and will make such backups available to Clients on request as and when they are available. However, Okuhle Digital does not warrant or guarantee the availability, completeness or “up to date status of such backups.
11.3 Clients are ultimately responsible for their own data, and Okuhle Digital strongly encourages such Clients to continue to make their own backups as frequently and completely as possible to ensure that they have recourse in the event of any failure.
11.4 Okuhle Digital also cannot guarantee the condition or fitness of any backups provided. Such backups are provided -as is and are used at the Client’s own risk and discretion – whether restored by Okuhle Digital by instruction from Clients or by Clients themselves.
11.5 Okuhle Digital will not be liable for any losses or damages relating to any incidents arising out of such backups being provided (or not provided) to Clients on request.
12.1 Okuhle Digital provides servers to Clients for the purposes of their hosting needs. However ownership of physical hardware rests solely with Okuhle Digital at all times. Clients may not make any claim to hardware deployed for their hosting, and may not have access to Okuhle Digital property, hardware or hosting infrastructure (such as data centres) without prior consent, which must be obtained by written application with a minimum of 24 hours notice. Okuhle Digital, at its discretion, may refuse such requests within reason.
13.1 Okuhle Digital reserves the right to manage the cloud environment at its discretion for the overall benefit of cloud hosted Clients. Any virtual machine which Okuhle Digital deems at its sole discretion to have a negative effect on the environment may be powered down or suspended.
13.2 Okuhle Digital deploys all new Cloud Servers with HyperV tools (V additions, US) pre-loaded. VM additions is integral to the smooth running of virtual servers, including managing resources and smooth and safe rebooting. VM additions must be running at all times. as shutting it down will severely affect the performance of the server. and efficiency of the core controllers i.e. affecting other clients· virtual servers.
13.3 Okuhle Digital strictly forbids the creation of nested VM”s, or virtual instances within a virtual server. This severely degrades overall performance and will be treated as a violation of Okuhle Digital’s AUP and Terms & Conditions of Service (contrary to the intended use of the product).
13.4 Okuhle Digital also strictly forbids any misuse of shared or cloud resources, such as Ram Disks (use RAM memory as storage disk space), which abuses resources and compromises the integrity of the cloud environment.
13.5 Okuhle Digital may also, at its discretion, restrict server to limited IOPS (Input Output Operations Per Second) where a Client’s use of available virtual resources is negatively affecting the overall environment.
13.6 Okuhle Digital reserves the right to move a Cloud server between our virtual environments and Internet backbones, both within South Africa and internationally as it deems necessary.
14.1 Okuhle Digital guarantees that its hosting services will attain 99.9% availability, subject to the following.
14.2 The 100% website uptime guarantee is applicable only if the web server on which a Client’s web hosting service resides crashes or goes down at an unscheduled time. This guarantee is not valid if there is any network problem between the Client and the web server which prevents the Client from seeing the web server, for instance. If the Client·s ISP”s link to the respective data centre goes down or is faulty, but the web server Okuhle Digital hosts is still up, Okuhle Digital is not responsible for the Client not being able to reach their website. Okuhle Digital reseller managed server arrangement with Afrihost also means that any uptime issues experienced within Afrihost may be experienced by Clients.
14.3 Okuhle Digital is not responsible if any third party operated network or service experiences problems and outages (i.e. all network infrastructure and links, Client’s internet connection, firewall service managed by external parties). If the applicable web server is up and running at all times then the website will be deemed to have achieved 100% uptime. Okuhle Digital reseller managed server arrangement with Afrihost also means that any uptime issues experienced within Afrihost may be experienced by Clients of Okuhle Digital as well and the resolution will be tied in with the resolution of the issue at Afrihost.
14.4 The 100% uptime guarantee does not apply to any scheduled downtime for maintenance of any of the Okuhle Digital web servers. If there is scheduled maintenance to be done the Client will benotified at least 24 hours in advance. The scheduled maintenance will always be done after hours (based on Central African Time (CAT)} and the web server downtime will be kept to a minimum.
14.5 The 100% uptime guarantee does not apply if Okuhle Digital suspends the Client’s Service as allowed in terms of this Agreement.
14.6 Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services.
14.7 Disputes arising out of the Uptime Guarantee must be submitted in writing and claims may not exceed fees paid (either monthly or on a pro-rata basis) to Okuhle Digital for services not received during downtime. No direct or indirect losses or damages resulting from downtime may be claimed. Service Level commitments will also be taken into account when reviewing disputes. Where agreed provisions have been met, such disputes will be dismissed.
14.8 The Services provide access to the internet. which is subject to bandwidth constraints. system failures and all manner of other factors that mayimpact on the Client’s access, for which Okuhle Digital accepts no responsibility.
15.1 Okuhle Digital will exercise no control whatsoever over the content of the material hosted on, or the information passing through the Okuhle Digital network and in no way moderates such content.
15.2 Clients expressly agree that use of Okuhle Digital’s Server(s) and Services are at the Client’s sole risk.
16.1 Okuhle Digital provides a spam and virus filtering system to protect Clients from unsolicited mail and viruses. The Client acknowledges that this system might incorrectly identify a valid message as spam or as a virus and consequently this message might not be delivered to the Client. The Client acknowledges and agrees that Okuhle Digital shall without limitation have no responsibility for, or liability in respect of any data lost as a result of this system.
16.2 Okuhle Digital reserves the right to examine incoming or outgoing mail to the extent necessary to determine if it is classified as spam or malicious.
17.1 Webmail and other web-based email services made available by Okuhle Digital are provided on an -as is” basis without representations. warranties or conditions of any kind, and the Client acknowledges and agrees that Okuhle Digital shall have no responsibility for, or liability in respect of, any aspect of the webmail services, including without limitation for any lost or damaged data or any acts or omissions of Okuhle Digital. As webmail storage space is limited, some webmail messages may not be processed due to space constraints or message limitations.
18.1 Individual mail sent to the Client’s POP3/IMAP box or forwarded to the Client’s existing email address may be limited to 3000k8 in size each.
19.1 In terms of section 75 of the Electronic Communications and Transactions Act (The ECT Act“) the Internet Service Providers’ Association (ISPA) can instruct Okuhle Digital to perform a site takedown upon receipt of notification of infringements as defined in Section 77 of the Act.
Any enquiries can be directed to ISPA at:
Postal address: PO Box 518, Noordwyk, 1687, Midrand Tel: 010 500 1200
Email: takedown@ispa.org.za
Should Okuhle Digital receive a takedown notice from ISPA, Okuhle Digital will endeavour to:
20.1Okuhle Digital makes no claim to the intellectual property (such as data) of Clients hosted on their servers. However, all equipment remains the property of Okuhle Digital and retention of data does not directly or indirectly give ownership of Okuhle Digital hardware to Clients.
21.1 Okuhle Digital will issue IP addresses to dedicated servers or to other hosting servers, either as part of the standard product, or upon request (subject to applicable fees). IP addresses will be assigned to Clients at Okuhle Digital’s discretion and on a first come first serve basis.
22.1 Okuhle Digital will be responsible for updates to Operating Systems and Shared Libraries on Shared Hosting Servers.
22.2 Okuhle Digital will only effect software updates to Operating Systems on Managed Dedicated Servers (including cloud servers). Okuhle Digital will not effect other updates on Managed or UnManaged servers, as this is not part of the service offered.
23.1 Okuhle Digital will not be liable for any loss or damage, 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, delict, or otherwise which may be suffered as a result of or which may be attributable, directly or indirectly, to the use and/or registration of the Client’s selected domain names/s or any action taken by okuhle digital in response to the abuse of the domain registration services which it offers.
23.2 The Client hereby indemnifies and holds harmless Okuhle Digital against any loss whatsoever arising from any dispute or claim or other action occasioned by the Client’s use and registration of its selected Domain Name, even if Okuhle Digital has been advised of the possibility of such damages;
23.3 Okuhle Digital will not be liable for any indirect or consequential loss, damage, cost or expense of any kind, irrespective of how such damage or loss was caused, whether arising under contract, delict or otherwise, including, and not limited to, data loss or corruption, loss of profits. contracts, operation time and goodwill.
23.4 Neither Okuhle Digital, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that Okuhle Digital’s 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 Okuhle Digital Server service, unless otherwise expressly stated in this Agreement.
23.5 Okuhle Digital expressly limits its liability to the Client for damages suffered due to any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Okuhle Digital specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
23.6 Okuhle Digital is not responsible if an external company network and firewall is setup to block access to services Okuhle Digital provides. If a Client’s network is setup to block certain ports or web addresses that compromise the services Okuhle Digital provides it is the Client’s responsibility to ensure that their network configurations are changed as necessary.
23.7 Clients also hereby indemnify Okuhle Digital against any 3rd party claims against themselves as resellers or services provided to the public or privately. Clients will be solely liable to external parties for losses and may, in no way, petition Okuhle Digital to share or cover such losses or liability, either directly or indirectly. Okuhle Digital is also indemnified from direct claims from Clients for losses incurred due to 3rd party actions or claims.
The following definitions apply to these Registrant Service Terms:
1.1 “Administration Sites” means the Registry’s official administration website/s including, but not limited to: http:l/www.registry.net.za and the Registrar’s official administration website/s including, but not limited to: http:l/www.okuhledigital.co.za and www.okuhledigital.co.za.
1.2 “Agreement·· means the Application read together with these Registrant Service Terms.
1.3 “Applicant” means the party making application for the delegation, transfer or update of the Domain Name in terms of this Agreement. and who will beidentified as the Registrant in the Application.
1.4 “Domain Namen means the Domain Name in the Namespace, designated in the Application, and governed by the Agreement.
1.5 “Effective Daten means, in respect of the delegation of the Domain Name to the Applicant, the date on which such delegation is registered by the Registry (as evidenced by an electronic message from the Registrar to the Applicant confirming same).
1.6 “General Terms” means the Registrar”s (Okuhle Digital”s) General Terms.
1.7 “ICANNn means the Internet Corporation for Assigned Names and Numbers, a California non-profit, public benefit corporation.
1.8 “Namespace” means the .co.za, .web.za, .org.za.. net.za, .africa, .capetown, .joburg or
.durban name space of the Internet as the case may be.
1.9 “Personal Information” means information relating to an identifiable, living, natural person.
1.10 “Registrarn means Okuhle Digital.
1.11 “Registrar Accreditation Agreementn means the agreement entered into between the Registrar and ICANN in terms of which the Registrar is accredited by ICANN as a registrar.
1.12 “Registry” means ZA Central Registry NPC, a company registered in accordance with the laws of South Africa with registration number 1988/004299/08. its successors or permitted assigns.
1.13 “Registry-Registrar Agreement” means the agreement between the Registrar and the Registry in terms of which the Registrar is accredited as a registrar for a Namespace.
1.14 “Published Policiesn means those specifications and policies established and published by the Registry from time-to-time relating to the administration of a Namespace, and includes the launch Policy, Sunrise Dispute Resolution Policy, and Auction Policy. The published policies can be found on the Administration Sites.
2.1 The Registry is responsible for delegating (registering) domain names in the Namespaces.
2.2 These terms and conditions apply to all the above-mentioned domain names.
2.3 The Applicant also agrees to be bound by the Published Policies.
3.1 In addition to the General Terms, these terms and conditions govern the use of the Okuhle Digital registrar services. By contracting with Okuhle Digital for the services a Client will belawfully regarded as having agreed to their useof the services specified being governed by this Agreement.
3.2 To the extent that anyprovision of this document conflicts with the provisions of the General Terms, the provisions of this document will prevail.
3.3 In providing the registrar services the Registrar is bound by the provisions of the Registrar Accreditation Agreement and the Registry-Registrar Agreement. If the Registrar acts contrary to any provision of this Agreement as a result of an obligation to either ICANN or the Registry set out in such agreements (including compliance with the Published Policies or any mandatory ICANN policy), such act or omission will notbea breach of this Agreement.
4.1 The Domain Name will be delegated (registered) once it has been accepted and approved by the Registrar and the Registry and after payment of the relevant fees.
4.2 The Domain Name registration will continue after the Effective Date for the period described in the Application unless it is transferred or otherwise deleted as described in this Agreement or one of the documents referred to in it.
4.3 The Domain Name may be renewed upon payment of the relevant fees, and this Agreement will berenewed upon each renewal or other extension of the Domain Name’s registration period.
4.4 It the Applicant wishes to transfer the Domain Name to another registrant (which is done by updating the domain name record), the Applicant must ensure that the new registrant has agreed to the terms of this Agreement. The Registrar will notgive effect to the transfer until it has received confirmation of such agreement.
4.5 The Registrar’s deletion and auto-renewal policy will notdiffer from the parameters set out in the Published Policies by the Registry. The Registrar will under no
circumstances be liable if any Domain Name is deleted due to the Applicant’s failure to renew the Domain Name registration.
5.1 See the provisions of the General Terms as they relate to fees, which are deemed to form part of this clause 5.
5.2 Should the Applicant failto payanyof the fees contemplated within the periods stated, the Registrar may, without derogating from any other right which it may have in terms of these Service Terms or the General Terms or otherwise, and without notice, withdraw the Domain Name application or registration.
5.3 Under no circumstances whatsoever will the Registry or Registrar be obliged to refund any fees paid by the Applicant in terms of this clause 5.
6.1 The Registry or the Registrar will under no circumstances whatsoever be obliged to determine the right of the Applicant to the Domain Name. Domain names are delegated on a ‘”first-come-first servedH basis (unless the Application is made as part of a Namespace launch phase) and the delegation of the Domain Name by the Registry will innoway constitute any indication or warranty of the Applicant’s right to utilise such name.
6.2 The Registry and Registrar give no warranties of any nature whatsoever with regard to the Domain Name, the registration or use thereof and hereby disclaim all such warranties, whether express or implied.
6.3 Under no circumstances whatsoever will the Registry or Registrar be obliged to act as an arbiter of disputes arising out of the registration and use of the Domain Name.
6.4 Should a third party (the “ComplainantH). in contemplation of legal action against the Applicant in court or as described in clause 6.5, present the Registry or Registrar with prima facie evidence that indicates that the Domain Name violates the rights of the Complainant, then the Registry will beentitled to provide the Complainant with the Applicant’s name and contact particulars. All further communication will exclude the Registry and the Registrar, and who will have no further obligations to the Applicant or complainant.
6.5 The Applicant accepts the jurisdiction of any dispute resolution mechanism established in respect of a Namespace by the Registry, ICANN or by applicable law, asthe case may be, in disputes relating to the Domain Name, including the Uniform Domain Name Dispute Resolution Policy (‘”UDRPH) and the Uniform Rapid Suspension l”URSn), and agrees to be bound by any decision that may result.
7.1 The Applicant must provide to Registrar accurate and reliable contact details and correct and update them within seven (71 days of any change during the term of the Domain Name registration, including:
7.1.1 the full name, postal address. email address, voice telephone number, and fax number if available of the Applicant;
7.1.2 name of authorised person for contact purposes in the case of an Applicant that is an organisation, association, or corporation;
7.1.3 the names of the primary nameserver and secondary nameserver(s) for the Domain Name;
7.1.4 the name, postal address, email address, voice telephone number, and (where available) fax number of the technical contact for the Domain Name; and
7.1.5 the name, postal address, email address, voice telephone number, and (where available) fax number of the administrative contact for the Domain Name.
7.2 The Applicant’s willful provision of inaccurate or unreliable information, its willful failure to update information provided to Registrar within seven (7) days of any change, or its failure to respond for over fifteen (15) days to inquiries by Registrar concerning the accuracy of contact details associated with the Applicant’s registration will constitute a material breach of the Applicant-registrar contract and be a basis for suspension and/or cancellation of the Domain Name registration.
7.3 Any Applicant that intends to license use of a Domain Name to a third party is nonetheless the Applicant of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Domain Name. An Applicant Licensing use of a Domain Name according to this provision will accept liability for harm caused by wrongful use of the Domain Name, unless it discloses the current contact information provided by the licensee and the identity of the licensee within seven (7) days to a party providing the Applicant reasonable evidence of actionable harm.
8.1 The Applicant hereby irrevocably represents, warrants and agrees that:
8.1.1 the information provided in the Application is accurate and complete, and that it will keep such information up to date at all times;
8.1.2 it has the right without restriction to use and register the Domain Name;
8.1.3 to the best of its knowledge and belief the registration of the Domain Name or its use does not and will not directly or indirectly infringe any legal right of any third party in any jurisdiction, including with respect to trademark, service mark, trade name, company name, close corporation name, copyright or any other intellectual property right;
8.1.4 will not use the Domain Name for any unlawful purpose whatsoever, including, without limitation, distributing malware, abusively operating botnets, defamation, unfair or generally for the purpose of confusing or misleading any person;
8.1.5 at the time of the initial submission of the Application, and at all material times thereafter, it must have an operational name service from at least two operational name servers for the Domain Name. Each server is and will continue to be fully connected to the Internet and capable of receiving queries relating to the Domain Name and responding thereto; and
8.1.6 it has selected the Domain Name without any input, influence or assistance from the Registry and/or Registrar.
8.2 Pursuant to the above warranties. the Applicant hereby agrees that it will defend, indemnify and hold harmless the Registrar and the Registry, their directors, officers, members, employees and agents, for any loss, damage, expense or liability resulting from any claim, action or demand arising out of or related to a breach of the aforementioned warranties or the use or registration of the Domain Name, including reasonable attorneys’ fees on an attorney and own client basis. Such claims will include, without limitation, those based upon trademark infringement, copyright infringement, dilution, unfair competition, passing off, defamation or injury to reputation. The Registrar agrees to give the Applicant written notice of any such claim, action or demand within a reasonable time of becoming aware thereof. The Applicant agrees that the Registry and /or the Registrar will bedefended by attorneys of their own respective choices at the Applicant’s expense, and that the Applicant will advance the costs incurred in such litigation, to the respective parties on demand from time to time.
9.1 The Applicant agrees that the Registry or Registrar will have the right to withdraw the Domain Name delegation, suspend operation of the Domain Name, or transfer the Domain Name (as the case may be):
9.1.1 in the circumstances contemplated in clause 5.2;
9.1.2 should the Applicant breach any warranty given under clause 8.1:
9.1.3 if the Applicant withdraws its consent for processing of Personal Information described in clause 10;
9.1.4 should the Applicant breach any other provision of this Agreement, and fail to remedy such breach within 14 (fourteen) days of receiving written notice from the Registrar calling upon it to do so;
9.1.5 in order to correct mistakes by Registrar or the Registry in registering the Domain Name pursuant to the Published Policies or ICANN policy applicable to the Registrar;
9.1.6 on receipt of an order by any competent court having jurisdiction; or
9.1.7 on receipt of a decision by a dispute resolution provider appointed in terms of an official domain name Dispute Resolution Procedure introduced by Law, or adopted and published by the Registry or ICANN (if applicable).
9.2 In the event that the Registrar’s accreditation is withdrawn by the Registry, the Registry may initiate a forced transfer of the Domain Name to another registrar.
9.3 The Registrar’s deletion and auto•renewal policy will not differ from the parameters set out in the Published Policies by the Registry.
10.1 Personal Information provided by the Applicant to the Registrar will be used in a manner generally accepted in the domain name industry, and in particular for the following purposes:
10.1.1 use of Personal Information by the Registrar and Registry in providing the registrar and registry services respectively and in particular providing a public WHOIS facility which may include the Personal Information:
10.1.2 inclusion of Personal Information in escrow deposits by the Registrar and Registry held by third parties located both inside and outside of the respective countries in which they provide the services:
10.1.3 transfer of Personal Information to the Registry”s affiliates and service providers for the purposes of providing registry services;
10.1.4 transfer of Personal Information to a third party replacing the Registry in providing the Registry function in terms of the registry agreement between ICANN and the Registry, whether located inside or outside of South Africa
10.2 In processing the Personal Information as set out in clause 10.1the Registrar and Registry may transfer such Personal Information to the parties described therein. If the Registrar is a reseller of registrar services, then the Personal Information will also be transmitted to the sponsoring registrar.
10.3 The applicant consents to the processing of personal information as described in clauses 10.1 and 10.2. And acknowledges that registration. transfer or renewal of the domain name is dependent on such consent.
10.4 The applicant warrants that where it supplies the personal information of third parties to the registrar it has first provided such third parties with equivalent notice and obtained their consent as described in clauses 10.1 and 10.2 respectively.
10.5 When collecting or confirming Personal Information the Registrar will indicate in an appropriate manner which Personal Information is obligatory and which, if any, is voluntary.
10.6 The Applicant can access and rectify the Personal Information submitted to the Registrar by accessing ClientZone.
10.7 The Registrar will notprocess the Personal Information collected from the Applicant
in any way incompatible with the purposes and other limitations about which it has provided notice to the Applicant in terms of clause 10.1.
10.8 The Registrar must take reasonable appropriate, reasonable technical and organisational measures as required by applicable law to protect the Personal Information from loss. misuse, unauthorised disclosure, alteration or destruction.
10.9 Provision of the Domain Name is dependent on the Applicant’s consent, and the Domain Name may be suspended or withdrawn if the Applicant withdraws such consent.
11.1 The registry its directors, officers, employees, and agents will under no circumstances whatsoever be Liable for any direct, indirect, special, incidental, punitive or consequential damages of any kind and howsoever arising (including, without Limitation, loss of use, business interruption or lost profits), regardless of the form of action, whether in contract, delict, or otherwise, even if the registry has been advised of the possibility of such damages.
11.2 The applicant will indemnify, defend, and hold the registry and its directors, officers, employees, and agents harmless against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) relating to or arising out of to the applicant’s domain name registration.
12.1 Foradjudication of any legal disputes between the Applicant and the Registry, the Applicant hereby consents to the jurisdiction of the High Court of South Africa (Gauteng Division, Pretoria).
12.2 For adjudication of any legal disputes between the Afapplicant and the Registrar, the Applicant hereby consents to the jurisdiction of the High Court of South Africa (Gauteng Division, Pretoria) and to the jurisdiction of the courts of the Applicant’s domicile.
12.3 The Agreement will beconstrued and interpreted in accordance with the law of the Republic of South Africa.
12.4 The Applicant acknowledges that the Registry or 1CANN may oblige the Registrar to make changes to or supplement the Agreement or parts of the Agreement (“amendments”) if these amendments are reasonably necessary for the administration of a Namespace. In the case of amendments required by the Registry these amendments will bepublished on the Administration Sites from time to time.
12.5 The Applicant accepts that it is incumbent on it to monitor such changes and it hereby agrees that should it fail to notify the Registrar of the Applicant’s wish not to be bound by such amendments within 30 (thirty) days of such amendment being published, it wilt conclusively be deemed to have acceded and agreed to the amendments thus published.
12.6 To the extent that the Registry is granted rights, the relevant provisions of this Agreement will constitute an agreement for the benefit of a third party (stipulatio alteri) in the Registry’s favour. Where the Registry has lawfully assigned its rights andduties under its Registry-Registrar Agreement with the Registrar. the assignee will bethe beneficiary under this clause.
12.7 In the event that any of these terms are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
1.1 Okuhle Digital may amend the General Terms and Service Terms at any time. The amended versions will be posted on the Okuhle Digital Website, and Okuhle Digital will as soon as possible after posting the amendments make reasonable efforts to advise the Client of them by email and via ClientSpace. The Client also has a duty to duty to keep itself informed of the latest version of the above documents by accessing the Okuhle Digital Website on a regular basis.
1.2 Okuhle Digital must give at least one calendar month’s notice for the amendments, which will become effective at the beginning of the first calendar month after the notice period has expired.
1.3 If the Client objects to any of amendment, it may terminate the Agreement, and the termination will become effective at the end of the normal notice period.
1.4 If Okuhle Digital changes its Fees, the change must take place as described in this clause.
