TWC HOSTING CC t/a BALLITO ISP’s STANDARD TERMS AND CONDITIONS
1. DEFINITIONS AND INTREPRETATIONS
1.1. For purposes of these Conditions, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:
Acceptable Use Policy the acceptable use policy of Ballito ISP from time to time which forms part of these Conditions;
Affiliates the directors, managers, shareholders or members, agents, representatives, holding companies and subsidiary companies (as those terms are defined in the Companies Act, 2008) of Ballito ISP;
Applicable Laws all applicable laws and regulations in the RSA and/or internationally, as the case may be;
Application Form the Ballito ISP application form and / or email request, delivered by the Customer setting out the services which the Customer wishes to purchase from Ballito ISP (for example, Fibre-To-The-Home internet);
Business Customer a Customer that:
• is a juristic person; and
• operates with more than 5 (five) registered employees; and/or
• has requested business-specific services to be rendered by Ballito ISP to it;
Business Day Monday to Friday, excluding Saturday, Sunday or public holidays as defined under the Public Holidays Act, 1994;
Conditions these terms and conditions for the provision and use of the Services (including all rules, policies, procedures, and notices applicable thereto) which are set out in this document and which may be amended by Ballito ISP from time to time without notice to any third party or user;
Ballito ISP Infrastructure the network and systems of Ballito ISP used to provide services to its customers and users;
Ballito ISP TWC Hosting CC trading as Ballito ISP, a close corporation with registration number 2007/138702/23 incorporated under the laws of the RSA;
CPA the Consumer Protection Act, 2008;
Customer Premises the address provided by the Customer in the Application Form for purposes of installing the Equipment and at which the Services will be utilised;
Customer the person who will be liable for compliance with the Conditions and who:
• has applied for the Services (using an Application Form or otherwise); and/or
• Ballito ISP has agreed to provide the Services to; and/or
• will be liable for the payment of the Fees; and/or
• makes use of the Services;
Equipment the equipment (being moveable property) specified in the Application Form and supplied by Ballito ISP to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilise the Services;
Fees the fee payable by the Customer to Ballito ISP in consideration for the provision of the Services;
Invoice Date the date on which Ballito ISP issues the Invoice to the Customer (which date is reflected on the Invoice), being the date specified by the Customer in the Application Form;
Invoice the invoice issued by Ballito ISP to the Customer setting out the Fees (which may include an itemised bill on request or where this is specified as part of the Services provided to the Customer);
Parties the Customer and Ballito ISP (or any one of them as the context requires);
Prime Rate the prime interest rate charged from time to time by Ballito ISP’ commercial bankers to its most favoured corporate customers in respect of unsecured overdraft draft facilities;
RSA the Republic of South Africa;
Services the service/s provided by Ballito ISP to the Customer as per the Application Form, including all software and Equipment necessary for the provision of the Service/s;
VAT value-added tax as defined in the Value-Added Tax Act, 1991;
1.2. All monetary amount in these Conditions are exclusive of VAT, unless otherwise stated.
1.3. In circumstances of the CPA being applicable to these Conditions, the provisions of the CPA will prevail in the event of a conflict between any provision of the Conditions and the provisions of the CPA.
1.4. Headings of clauses have been inserted for convenience only and shall not be used for purposes of nor assist or affect its interpretation;
1.5. Unless the context clearly indicates a contrary intention, an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa and the singular includes the plural and vice versa;
1.6. Should any provision in a definition be a substantive provision conferring rights or imposing obligations on either Party, then effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
1.7. Any reference to an enactment, regulation, rule or by-law is to that enactment, regulation, rule or by-law on the date that Ballito ISP first provides the Services to the Customer, and as amended or replaced from time to time;
1.8. When any number of days is prescribed, such number shall exclude the first and include the last day, unless the last day falls on a day other than a Business Day, in which case the last day shall be the next succeeding Business Day;
1.9. Any schedule or appendix to these Conditions shall form part of these Conditions;
1.10. Any reference to months or years shall be a reference to named months or calendar years, as the case may be;
1.11. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;
1.12. The expiration or termination of these Conditions shall not affect those provisions of these Conditions which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding the fact that the clauses themselves do not expressly provide this;
1.13. In its interpretation, the contra proferentem rule of construction shall not apply (these Conditions being the product of negotiations between the Parties), nor shall these Conditions be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of these Conditions;
1.14. Recordals shall be binding on the Parties and are not merely for information purposes;
1.15. If figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail;
1.16. Expressions defined in these Conditions shall bear the same meanings in schedules or appendices to the Conditions which do not themselves contain their own conflicting definitions;
1.17. If a term is defined within the context of a particular clause in these Conditions, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of these Conditions, notwithstanding that that term has not been defined in this interpretation clause.
2.1. These Conditions set out the terms and conditions in terms of which Ballito ISP will provide the Services to the Customer and constitutes a binding agreement between Ballito ISP and the Customer as contained herein.
2.2. Ballito ISP is entitled to amend these Conditions from time to time and will place the amended Conditions on the Ballito ISP website (www.ballitoisp.co.za) which amendment will bind the Customer from the date that the amendment has been published on the Ballito ISP website.
3.1. The Customer accepts and agrees that these Conditions will become binding on it once Ballito ISP has processed the Application Form and has agreed to provide the Customer with the Services.
3.2. These Conditions will continue to be binding on the Customer until such time as the Services are cancelled in terms of these Conditions.
4.1.1. Ballito ISP will provide the Customer with a monthly Invoice on the Invoice Date.
4.1.2. Unless the Customer notifies Ballito ISP in writing at firstname.lastname@example.org within 3 (three) calendar days of receipt of an Invoice to the contrary, the contents of such Invoice will be deemed to be correct and will not be disputable.
4.1.3. Ballito ISP tries its best to keep its pricing up to date on the website and in the application process, but errors do happen. Please double check with our connect department for the latest pricing.
4.1.4. The Fees must be paid by the Customer in full, without deduction or set off and free of bank charges on the Invoice Date, unless agreed otherwise by Ballito ISP in writing or unless the Invoice has been submitted as a dispute in accordance with these Conditions (Clause 4.1.2.).
4.2. Unpaid Fees and Credit Limits
4.2.1. Should the Customer fail to make payment of any Fees that are due:
18.104.22.168. interest on any unpaid and outstanding Fees will accrue on a monthly basis at a rate of 2% (two percent) per month until the Fees are paid in full;
22.214.171.124. Ballito ISP shall be entitled to cease supplying current Services to the Customer and/or suspend any Services supplied to the Customer and/or refuse to supply new services to the Customer until such time as it receives payment in full of the outstanding amounts (including any interest accrued thereon and collection costs incurred);
126.96.36.199. for a period of more than 30 (thirty) calendar days from the Invoice Date, Ballito ISP may submit the outstanding Invoice/s to a collections agency/firm. In the event of the Invoice/s being handed over to an outside collection agency, any costs incurred by Ballito ISP in the collection process will be for the Customer’s account;
188.8.131.52. Ballito ISP may place a “non-payment” page on the Customer’s domain (if webhosting forms part of the Services) and the Domain Name System (“DNS”) of the Customer’s domain will remain unchanged until such time as Ballito ISP receives payment in full of the outstanding amounts (including any interest accrued thereon and collection costs incurred);
184.108.40.206. for a period of more than 30 (thirty) calendar days from the Invoice Date, Ballito ISP may cancel the fibre internet connection to the Customer 10 (ten) calendar days following delivery to the Customer of a written notice to that effect.
4.1.5. In respect of a Customer making use of the Ballito ISP VOIP services, residential and business VOIP customers will have a R200 (two hundred rand) and R1,000 (one thousand rand) default credit limit per month respectively, to avoid unauthorised usage and charges on the account.
4.1.6. In order to increase or decrease the default credit limit, the Customer must submit a written request to that effect to email@example.com.
4.1.7. If your line has been suspended due to non-payment you are still liable for the line fee for the months the line is suspended. Should you wish to cancel the billing you will need to send a cancellation request to our accounts department firstname.lastname@example.org. Should you wish to reconnect the cancelled services you will be charged a re-connection fee depending on the Fibre network you are connecting to. The reconnect fee will need to be paid before we can reconnect your services.
4.3. Methods of Payment
4.3.1. The Customer may only pay the Fees by means of a debit order, by using a credit card (only MasterCard and VISA are acceptable), or recurring/Instant EFT by using your unique customer code as reference. Payments made are automatically allocated to the OLDEST invoice on your account. The bank details WILL NOT change without an official message on our website. Do not pay into any other bank account than the details found on our site at https://www.ballitoisp.co.za.
4.3.2. A processing fee of R50.00 (fifty rand) (including VAT) will be charged on all returned debit orders.
4.3.3. If the preferred method of payment by the Customer is EFT, it is the sole responsibility of the Customer to ensure that all payments are made using the correct beneficiary reference as indicated on the Invoice. Failure to comply may result in an incorrect allocation of the payment which may cause service disruption as a result of the Service being suspended due to non-payment.
4.4. Fee Increases
The Customer acknowledges and agrees that Ballito ISP will be entitled, on 30 (thirty) days’ written notice to the Customer, to increase the Fees payable by the customer in circumstances of the direct costs to Ballito ISP in providing the Services (including, without limitation, the charges charged by the network provider(s) in respect of such services) being increased. The increases to the Fees shall be commensurate with the increased costs of providing the Services.
4.5.1. Ballito ISP will not credit any customer because of Fibre downtime caused by maintenance on a fibre line, break in connection, power failures, slow speeds caused by Fibre Network Operator’s (“FNO”) network, load shedding or any reason caused by third parties and/or any reason out of the direct control of Ballito ISP.
4.6. Reconciliation or Historical Information
4.6.1. The Customer may request a reconciliation of its account by submitting a request in writing to email@example.com.
4.6.2. If the reconciliation proves the balance of the account to be accurate (within a 5% margin), a once off charge of R150.00 (one hundred and fifty rand) per reconciliation will be applied to the Customer’s next Invoice.
4.6.3. If the Customer requests historical information that is made available to the Customer on any of the management interfaces provided to the Customer, a once off administration charge of R150.00 (one hundred and fifty rand) per request will be applied to the Customer’s next Invoice.
5. SERVICES AND EQUIPMENT
5.1.1. Ballito ISP provides the Services to the Customer in terms of these Conditions.
5.1.2. Services provided on a month to month / annual basis will automatically renew at the end of each month (or year, as the case may be) unless cancelled by the Customer in accordance with these Conditions.
5.1.3. All Fibre-to-the-Home or Fibre-to-the-Business services are billed one month in advance. If you subscribe during the middle of a month you will be billed a Pro-rate amount for the remainder of the month.
5.2.1. Ballito ISP may supply equipment at the Customer Premises, however, ownership of the Equipment will remain vested in Ballito ISP unless:
220.127.116.11. Ballito ISP and the Customer have agreed otherwise in writing; or
18.104.22.168. the Customer has purchased the Equipment from Ballito ISP and paid to Ballito ISP the purchase price of such Equipment in full.
5.2.2. The Customer shall be liable to Ballito ISP for any damage, destruction or theft of the Equipment which damage, destruction or theft is attributable to the Customer’s acts or omissions.
5.2.3. Ballito ISP has the right to inspect the Equipment at all reasonable times during the currency of the Conditions and to remove the Equipment on termination of these Conditions for any reason.
5.3. Remote Support / Support Services
5.3.1. For any remote assistance, the customer needs to call Ballito ISP call centre or open a ticket via firstname.lastname@example.org.
6. WEBHOSTING AND DOMAIN REGISTRATION
6.1. Domains and webhosting packages requested by the Customer will not be registered until payment has been received in full.
6.2. Only .co.za domains are eligible for free registration with a webhosting package.
6.3. A customer is only eligible for a free domain registration for the first year of domain registration.
6.4. Domain transfers are ineligible for free registration with our webhosting package special.
6.5. A webhosting package coupled with a free domain registration must be active for a minimum of 6 (six) months, failing which the Customer will be liable for the annual registration fee of the domain.
6.6. Ballito ISP offers domain registration and hosting as a reseller of said services, and accordingly:
6.6.1. Ballito ISP is only responsible to provide the Customer with support in relation to the service of the domain registration and hosting, not the management of said services as these services are provided by third parties.
6.6.2. certain queries can only be resolved with the help of the original service provider and may be delayed due to this process.
6.6.3. Ballito ISP is not responsible for the security and management of the Customer’s hosted website, e-mails, FTP, and so forth. The Customer must consult an IT professional for any security management and setup of the services included in the hosting services offered by Ballito ISP.
6.6.4. Any data hosted by the Customer is not the responsibility of Ballito ISP.
7. PASSWORDS, IP ADDRESSES AND ACCOUNT HOLDER DETAILS
7.1. The Customer is responsible for maintaining the confidentiality of its password and other related sensitive information for its user account. In the event of a breach of security through the Customer’s account, the Customer will be liable for any unauthorized use of Ballito ISP Infrastructure and Services, including any damages resulting therefrom, until the Customer notifies Ballito ISP customer service of such a breach and Ballito ISP has been able to rectify the breach.
7.2. The Customer will be liable for any additional costs incurred by Ballito ISP due to poor passwords or other credentials of the Customer in relation to the Customer’s user account (for example: blank passwords or “test” accounts).
7.3. If Ballito ISP assigns the Customer an Internet Protocol address in connection with its use of the Ballito ISP Infrastructure and/or Services, the ownership of and right to use that Internet Protocol address will remain with and belong only to Ballito ISP, and the Customer will have no right to use that Internet Protocol address except as allowed by Ballito ISP in its sole and absolute discretion.
8. LIMITATION AND VARIATION OF SERVICES
8.1. General Limitations and Variations
8.1.1. The Customer acknowledges and agrees that:
22.214.171.124. Ballito ISP may establish limits in relation to the use of the Services and/or any other Ballito ISP service offered on any Ballito ISP web site, including without limitation the maximum number of days that e-mail messages will be retained by any Ballito ISP service, the maximum number of e-mail messages that may be sent from or received by an account on any Ballito ISP service, the maximum size of an e-mail message that may be sent from or received by an account on any Ballito ISP service, the maximum disk space that will be allotted on Ballito ISP servers on behalf of the Customer (either cumulatively or for any particular service);
126.96.36.199. Ballito ISP has no responsibility for and/or is not liable for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Ballito ISP service;
188.8.131.52. the features, parameters (for example, the amount of storage available to users) or existence of any Ballito ISP service may change at any time and Ballito ISP endeavours to notify the Customer if any such changes will affect it;
184.108.40.206. Ballito ISP reserves the right to select the server for the Customer’s website (if any) for best performance;
220.127.116.11. the Services provided by Ballito ISP are provided on a shared server and accordingly, one website cannot be permitted to overwhelm the server with heavy CPU usage (for example from the use of highly active CGI scripts or chat scripts). If the Customer’s website (if any) overwhelms the server and causes complaints from other users, the Customer must relocate its website. If the Customer refuses to comply with this clause 18.104.22.168, then Ballito ISP has the right to terminate the Services without refunding the unused portion of the Fees prepaid by the Customer.
8.2. Reliance on Third Parties
8.2.1. Whilst Ballito ISP operates the Ballito ISP Infrastructure, Ballito ISP hereby advises the Customer that Ballito ISP does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide separate but interrelated and connected services which as a whole, allows the Ballito ISP Infrastructure to function. These third parties operate as independent service providers who are not necessarily contracted by Ballito ISP and the Customer accepts and acknowledges this fact.
8.2.2. Whilst Ballito ISP will use its best endeavours to ensure that the Services are operational at all times, Ballito ISP does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on the actions and/or input of a number of independent third parties whom Ballito ISP has no direct control over. Accordingly, Ballito ISP will not be liable for nor will it reimburse the Customer for any Fees paid or costs and/or damages of any nature whatsoever incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether Ballito ISP has entered into a service level agreement with such third party).
8.2.3. Notwithstanding the provisions of this clause 8.2.2, Ballito ISP will use its best endeavours to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where Ballito ISP is in a position to do so.
9. UPGRADES AND DOWNGRADES
9.1. A downgrade occurs when the Customer changes its current package to a package with a lower cost, for example: changing from a Home Uncapped 20Mbps account at R900 (nine hundred rand) to a Home Uncapped 10Mbps account at R650 (six hundred and fifty rand) would be considered a downgrade. An upgrade would be the opposite of a downgrade.
9.2. Upgrades or downgrades may be requested from Ballito ISP by emailing email@example.com. Lead times may be applicable for such upgrade or downgrade.
9.3. The Customer must notify Ballito ISP of downgrades or upgrades on or before the 20th of each month, in order for the downgrade or upgrade to take effect from the first day of the next month. Until such time as the downgrade or upgrade is effected by Ballito ISP, the Customer will continue to be charged for the rate of the existing package.
9.4. If a service is downgraded during the month, there will be no refund/pro-rata for the money paid already for that service.
10. INDEMNITY AND LIMITATION OF LIABILITY
10.1. The Customer agrees to indemnify Ballito ISP (and its Affiliates) and at all times keep it indemnified against all losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgements whatsoever in relation to or arising directly or indirectly out of the provision by Ballito ISP of the Services, and the Customer will reimburse Ballito ISP from time to time for all costs and expenses (including legal and other professional fees) that Ballito ISP may reasonably incur in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration in which Ballito ISP is a party and whether or not resulting in any liability on its part, except to the extent that such action or claim is found in final judgement to be the direct result of Ballito ISP’ fraud, gross negligence or breach of these Conditions.
10.2. Subject to the provisions of the CPA to the extent that the CPA is applicable to these Conditions and to the Customer, Ballito ISP will not be liable to the Customer, or any third party claiming through or on behalf of the Customer, in respect of any claim whatsoever, whether in contract, delict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by Ballito ISP of the Services, except to the extent that such losses, damages, costs or expenses incurred by the Customer are found in final judgement to be the direct result of fraud, gross negligence or breach of these Conditions by Ballito ISP. In these or any other circumstances, the maximum amount of the liability of Ballito ISP in respect of such losses, damages, costs or expenses will be limited to the amount of Fees that have been paid to Ballito ISP by or on behalf of the Customer in connection with the Services.
10.3. Without limiting the generality of clause 10.2, Ballito ISP will not (other than in circumstances of the gross negligence or fraudulent intent of Ballito ISP) be liable for any damage or loss suffered by the Customer caused by and/or attributable to:
10.3.1. the Services being interrupted, suspended or terminated, for whatsoever reason; and/or
10.3.2. communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever; and/or
10.3.3. circumstances that constitute a force majeure event (as contemplated in clause 12); and/or
10.3.4. the Customer’s failure to perform its obligations under these Conditions; and/or
10.3.5. changes made to the Customer’s operating environment which were not communicated to Ballito ISP; and/or
10.3.6. a power failure or power interruptions at any site from where the Services or any component of the Services are rendered; and/or
10.3.7. any failure or delay by the Customer to report problems or queries to Ballito ISP’s call centre and/or
10.3.8. the server and/or equipment of any recipient party being non-functioning for any reason whatsoever; and/or
10.3.9. the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the supplier and/or the customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the Services;
10.3.10. the unavailability of Ballito ISP website for any reason whatever; and/or
10.3.11. the Customer using the Service for any unlawful, improper or immoral purpose; and/or
10.3.12. the unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, PBX or other telecommunication equipment.
Subject to any warranties that may be implied by the CPA to the extent that the CPA is applicable to these Conditions and the Customer, Ballito ISP does not make any representations nor give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services or the Equipment, including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose, nor that the Services will be error-free, secure or uninterrupted.
12. FORCE MAJEURE
12.1. Ballito ISP will not be liable for any delay in performing or any failure to perform any of its obligations in terms of the Conditions due to any cause beyond its reasonable control.
12.2. Upon the occurrence of any delay or failure referred to in this clause 12, the provisions of the Conditions which are affected shall be suspended for as long as the cause in question continues to operate, provided that if the delay or failure referred to in this clause 12, has not ceased to operate within a period of 3 (three) months from the date upon which it arose, the Services may by way of notice in writing be cancelled by either Party.
13.1. Should Ballito ISP commit a breach of any of the provisions of these Conditions and fail to remedy that breach within 7 (seven) business days after receipt from the Customer of written notice calling upon it so to do, then the Customer will be entitled to either:
13.1.1. enforce specific performance of the terms hereof; or
13.1.2. cancel the Services with effect from the beginning of the following calendar month and recover such damages as it may have sustained, subject to the provisions of these Conditions.
13.2. In addition to any other cancellation rights which the Customer may have in these Conditions, the Customer may cancel the Services at any time provided that they provide Ballito ISP with one full calendar month’s notification – in such circumstances, the Services will be cancelled with effect from the last day of the month following the month in which such notice was given.
13.3. The Customer will be responsible for the pro rata cost of any installation performed by Ballito ISP which was covered by Ballito ISP subject to the Customer agreeing to a term commitment – in such circumstances, the Customer shall be liable for a percentage of the installation costs equal to the outstanding term. (Eg. Installation costs of R2,000 (two thousand rand) covered by Ballito ISP provided the Customer commits to utilizing Ballito ISP’s Service for a 12 (twelve) month period, and the Customer cancels with effect from the end of the 6th (sixth) month. Accordingly, the Customer will be liable for 50% (fifty percent) of the installation costs, namely, R1,000 (one thousand rand)). The Customer shall be obliged to make payment of such installation cost on demand.
13.4. The Customer will be liable for the full cost of the domain registration price if the Customer cancels the free domain registration service within the first 12 (twelve) months.
13.5. The Customer will be liable for the full cost of any Fibre line ordered by completing the Application Form and then cancelling such Application Form after 7 (seven) calendar days of its submission and before installation.
13.6. Customers must notify the accounts department of a cancellation request in writing by emailing firstname.lastname@example.org.
13.7. In addition to any other cancellation rights which Ballito ISP may have in these Conditions, if the Customer breaches any term of these Conditions including any failure to pay Ballito ISP any monies on due date, and fail to remedy that breach within 7 (seven) calendar days after receipt from Ballito ISP of written notice calling upon it so to do, then Ballito ISP will be entitled, without prejudice to any right it may have as a result of that breach, to cancel these Conditions and cease providing the Services to the Customer. This remedy will not be exhaustive and will be in addition and without prejudice to any others Ballito ISP may have under or in consequence of these Conditions.
13.8. If an application for business rescue proceedings or liquidation is filed by or against the Customer, or if the customer is sequestrated, liquidated, goes out of business or announces intention to do so, Ballito ISP will be entitled to immediately cancel these Conditions and terminate current Services to the Customer, upon notice to the Customer.
13.9. If the supply of the Services is terminated in accordance with this clause 13, the full outstanding balance of the Customer becomes due and payable immediately.
13.10. If your line has been suspended due to non-payment you are still liable for the line fee for the months the line is suspended. Should you wish to cancel the billing you will need to send a cancellation request to our accounts department at email@example.com. Should you wish to reconnect the cancelled services you will be charged a re-connection fee depending on the Fibre network you are connecting to. The reconnect fee will need to be paid before we can reconnect your services.
13.11. Please note that by default we require one full calendar month’s notification of non-renewal. If you do not provide this notice, you will be charged the rate stipulated on the relevant product page for the next renewal term. To illustrate, for non-renewal to be affected at the end of November, notice of non-renewal must be received on or before the last day of October. If a client cancels within the first 30 (thirty) calendar days, the client will be liable to pay any activation fees that Ballito ISP incurred on behalf of the Customer.
14. DISPUTE RESOLUTION
14.1. Any dispute between the Parties in regard to any matter arising out of any Invoice and/or these Conditions or their interpretation or their respective rights and obligations arising thereunder or their cancellation or any matter arising out of their cancellation, must first be (attempted to be) resolved by the Customer and a manager of Ballito ISP in accordance with the following procedure:
14.1.1. the Customer must submit to firstname.lastname@example.org a written complaint / dispute setting out the Customer’s full particulars, contact details, customer reference number, relationship with Ballito ISP, statement of reasons for the complaint / dispute and any relevant evidence or supporting documentation;
14.1.2. Ballito ISP must:
22.214.171.124. acknowledge receipt of the complaint / dispute within 3 (three) Business Days of its submission by the Customer; and
126.96.36.199. determine the outcome of the complaint / dispute, and communicate this result to the Customer within 14 (fourteen) Business Days of the above acknowledgement.
14.1.3. Ballito ISP will not entertain any dispute / complaint in respect of an Invoice or Fees based on unauthorised use of the Services, it being the Customer’s responsibility to safeguard access to the Services which it receives and to use the Services in the manner set out in these Conditions.
14.1.4. Should any disputed overages be accurate (within a 5% margin), a once of charge of R150 (one hundred and fifty rand) (excluding VAT) per domain server will be applied to your account.
14.1.5. If the Customer is not satisfied with the outcome in clause 188.8.131.52, then the complaint / dispute shall on written demand by any Party to the dispute be submitted to arbitration in Ballito in accordance with the High Court Rules by an arbitrator agreed upon by the Parties, or failing agreement within 10 (ten) Business Days after arbitration has been demanded, appointed by the Chairman of the KwaZulu-Natal Society of Advocates or its successor.
14.1.6. Any Party to the arbitration may appeal the decision of the arbitrator within a period of 15 (fifteen) Business Days after the arbitrator’s ruling has been handed down by giving written notice to that effect to the other Party or Parties to the arbitration.
14.1.7. The decision of the arbitrator shall be final and binding on the Parties to the arbitration after the expiry of the period of 15 (fifteen) Business Days from the date of the arbitrator’s ruling if no appeal has been lodged by any Party.
14.1.8. The appeal shall be dealt with in accordance with the High Court Rules by a panel of 3 (three) arbitrators appointed, mutatis mutandis in accordance with the provisions of clause 14.1.3. The majority decision of the panel of arbitrators shall be final and binding on the Parties to the arbitration.
14.1.9. A decision which becomes final and binding in terms of this clause 14 may be made an order of court at the instance of any Party to the arbitration.
14.1.10. Nothing herein contained shall be deemed to prevent or prohibit any Party from applying to the appropriate court for urgent relief.
14.1.11. Each of the Parties hereby submits itself to the jurisdiction of the KwaZulu-Natal Durban High Court (South Africa) should the other Party wish to make the arbitrator’s decision an order of that Court
14.1.12. The provisions of this clause 14 will continue to be binding on the Parties notwithstanding any termination or cancellation of this Agreement.
14.1.13. Any arbitration in terms of this clause 14 shall be conducted “in camera” and the Parties shall treat as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration.
14.1.14. The demand by a Party to submit a dispute to arbitration in terms hereof shall be deemed to be the required legal process to interrupt prescription in terms of the Prescription Act, No. 68 of 1969.
Ballito ISP will keep all information supplied to, or acquired by it in connection with any order in terms of these Conditions strictly confidential, shall not use such information or any part thereof for any purpose other than permitted under these Conditions.
Notices required by these Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery, fax or by e-mail. 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 (fifth) Business Day after posting. E-mails and faxes will 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 if sent after 16h00 on a Business Day or if sent on a non-Business Day.
17. PERSONAL INFORMATION
17.1. By requesting and utilising the Services, the Customer consents to:
17.1.1. Ballito ISP recording and storing, in a secure manner, the Customer’s personal details for record-keeping purposes and in order to comply with its obligation in terms of these Conditions;
17.1.2. Ballito ISP providing the Customer’s personal details to any law enforcement agencies upon it being requested to do so;
17.1.3. Ballito ISP using location-based services for any lawful or third party service;
17.1.4. Cookies being stored to provide customized services (if any);
17.1.5. certificates being stored;
17.1.6. Ballito ISP, third party vendors / partners redirecting the Customer to third party vendor payment processing partners; and
17.1.7. Ballito ISP making the Customer’s personal information available to its Affiliates, provided that such personal information will not be provided to or sold to any third parties which are not Affiliates of Ballito ISP without the prior written consent of the Customer.
18.1. The Customer will not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of the Conditions and/or the Services, in whole or in part, to any other party or person without the prior written consent of Ballito ISP.
18.2. Ballito ISP may assign any and/or all of its rights and/or obligations under these Conditions to any third party without prior notice to the Customer and without the prior written consent of the Customer.
18.3. No Party will have any claim or right of action arising from any undertaking, representation or warranty not included in these Conditions.
18.4. No extension of time, relaxation or indulgence granted by Ballito ISP to the Customer will be deemed to be a waiver or tacit amendment of Ballito ISP’s or the Customer’s rights in terms hereof, nor will any such relaxation or indulgence be deemed to be a novation or waiver of the terms and conditions of these Conditions.
18.5. Each of the provisions of these Conditions will be considered as separate terms and conditions and in the event that these Conditions are affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of such illegality, invalidity, prohibition or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited or unenforceable provision was not a part hereof.
18.6. All costs, charges and expenses of any nature whatever which may be incurred Ballito ISP in enforcing its rights in terms of these Conditions, including without limiting the generality of the aforegoing, legal costs on the scale of attorney and own Customer and collection commission, irrespective of whether any action has been instituted, will be recoverable on demand from the Customer against and are payable on demand.
18.7. The validity of these Conditions, their interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of these Conditions or their performance will be determined in accordance with the laws of South Africa.
18.8. These Conditions supersede any and all previous agreements between Ballito ISP and the Customer relating to the subject matter hereof.
18.9. The provisions of this Agreement shall be binding upon the successors-in-title and the permitted assigns of the Parties. Accordingly, the rights and obligations of each Party pursuant to this Agreement shall devolve upon and bind its personal representatives, successors-in-title and permitted assigns.
19. ACCEPTABLE USE POLICY
19.1. General and Acceptable Use
19.1.1. The provisions of the Acceptable Use Policy:
184.108.40.206. form part of the Conditions;
220.127.116.11. are binding on the Customer; and
18.104.22.168. are intended as guidelines and are not meant to be exhaustive.
19.1.2. Generally, conduct that violates any law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in the Acceptable Use Policy, is prohibited. Ballito ISP prohibits activities that may damage its commercial reputation and goodwill and reserves the right to take such steps as it may deem required in order to protect itself from such damage being caused by the Customer.
19.1.3. The Customer must:
22.214.171.124. use the Internet and Ballito ISP Infrastructure for his/her own personal use only and must do so with respect, courtesy, and responsibility, giving due regard to the rights of other Internet and/or Ballito ISP Infrastructure users;
126.96.36.199. have a basic knowledge of how the Internet functions, the types of uses which are generally acceptable, and the types of uses which are to be avoided.
19.1.4. The Customer acknowledges and agrees that Ballito ISP is unable to exercise control over the content of the information passing over the Ballito ISP Infrastructure and the Internet, including any websites, electronic mail transmissions, news groups or other material created or accessible over the Ballito ISP Infrastructure. Accordingly, Ballito ISP is not responsible for the content of any messages or other information transmitted over the Ballito ISP Infrastructure and/or Internet.
19.1.5. The Customer agrees to indemnify Ballito ISP and its Affiliates in full and on demand from and against any loss, damage, costs or expenses which they may suffer or incur directly or indirectly as a result of the Customer’s use of the Ballito ISP Infrastructure and/or Internet otherwise than in accordance with the Acceptable Use Policy, the Conditions and the Applicable Laws.
19.2. Prohibited, Unacceptable and Unlawful Use
19.2.1. The Ballito ISP Infrastructure may be used only for lawful purposes and Customers may not violate any Applicable Laws when using the Ballito ISP Infrastructure and/or the Internet.
19.2.2. Transmission, downloading, distribution or storage of any material on or through the Ballito ISP Infrastructure in violation of Applicable Laws by the Customer is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secrets or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, violates export control laws, constitutes child sexual abuse imagery, pirated software, illegal downloads, “Hackers programs or archives”, “Warez Sites”, “Irc Bots”, “Illegal Mp3’s”, drug dealing or other illegal activities.
19.2.3. The Customer is prohibited from 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.
19.3. Web Hosting
19.3.1. Due to the nature of a shared web hosting environment, Ballito ISP reserves the right to ask Customers to upgrade or correct issues pertaining to upgrade their shared web hosting package, or to correct issues on their shared web hosting package, should it adversely affect the Ballito ISP Infrastructure, network or server performance for the majority of the Ballito ISP web hosting customers.
19.3.2. The Ballito ISP 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.
19.3.3. Ballito ISP prohibits the use of the shared web hosting service disk space to be utilised for purposes other than its intended function, which intended function is: content hosting, personal and small enterprise e-mail and relevant web files.
19.3.4. The use by the Customer 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 the Ballito ISP Infrastructure.
19.3.5. Ballito ISP may at any time with reasonable notice to the Customer (if such Customer makes use of the web hosting services), revise or amend its current shared and dedicated web hosting offerings relating to price, features, traffic, allocations and disk sizes.
19.4. Business Use
19.4.1. The Customer acknowledges that:
188.8.131.52. there is a distinction between residential/home internet services (fibre-to-the-home) and business services (fibre-to-the-business);
184.108.40.206. a high number of users (on average, more than 5 users) accessing the Ballito ISP Infrastructure and/or Internet through a single account, would result in a higher cost incurred by Ballito ISP to service such an account based on the Ballito ISP uncapped, unlimited and unshaped model;
19.4.2. Accordingly, the Customer acknowledges and agrees that, unless it is a Business Customer, it may not allow more than 5 users to access the Ballito ISP Infrastructure through its account at any given time. Failure to adhere to this requirement may result in the Customer incurring additional charges and Ballito ISP may immediately suspend or terminate the Services of such a Customer without notice.
19.5. System and Network Security
19.5.1. All references to systems and networks under this section includes the Internet (and all those systems and/or networks to which the Customer is granted access through Ballito ISP) and includes but is not limited to the Ballito ISP Infrastructure itself.
19.5.2. The Customer may not circumvent user authentication or security of any host, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, customer, host, or network (referred to as “denial of service attacks”).
19.5.3. Violations of system or network security by the Customer are prohibited, and may result in civil or criminal liability. Ballito ISP will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected.
19.5.4. Examples of system or network security violations include, without limitation, the following:
220.127.116.11. unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of Ballito ISP;
18.104.22.168. unauthorised monitoring of data or traffic on the network or systems without express authorisation of Ballito ISP;
22.214.171.124. interference with service to any user, customer, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
126.96.36.199. forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting; and
188.8.131.52. 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
184.108.40.206. resale of access to CGI scripts installed on the Ballito ISP servers.
19.6. E-mail Use and Spamming
19.6.1. It is expressly prohibited to send unsolicited mail messages (“junk mail” or “spam”), including, without limitation, commercial advertising and informational announcements, and the Customer will refrain from doing so.
19.6.2. The Customer will not use another site’s mail server to relay mail without the express permission of the site (known as public relay) 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.
19.6.3. Ballito ISP may examine the Customer’s mail servers to confirm that no mails are being sent from the mail server through public relay and the results of such checks can be made available to the Customer. All relay checks will be done in strict accordance with Ballito ISP’s policy of preserving customer privacy.
19.6.4. The Customer may not use the Ballito ISP Infrastructure and/or servers to effect or participate in any of the following activities:
220.127.116.11. posting 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;
18.104.22.168. sending unsolicited mass e-mailings, if such unsolicited e-mailings provoke complaints from any of the recipients;
22.214.171.124. engaging in any of the foregoing activities using the service of another provider, but channelling such activities through the Ballito ISP Infrastructure (or a Ballito ISP provided server, or using a Ballito ISP provided server as a maildrop for responses);
126.96.36.199. falsifying user information provided to Ballito ISP or to other users of the service in connection with use of a Ballito ISP service.
19.7. Fair Access
19.7.1. To help ensure that all Customers have fair and equal use of the Services and to protect the integrity of the Ballito ISP Infrastructure, Ballito ISP reserves the right, and will take necessary steps, to prevent improper or excessive usage of the Ballito ISP Infrastructure. These steps include, but are not limited to:
188.8.131.52. limiting throughput;
184.108.40.206. preventing or limiting Service through specific ports or communication protocols; and/or
220.127.116.11. complete termination of Services to users who grossly abuse the Ballito ISP Infrastructure through improper or excessive usage.
19.7.2. This applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited usage.
19.7.3. Online activity will be subject to the available bandwidth, data storage and other limitations of the Service provided, which Ballito ISP may, from time to time, revise at its own discretion and without prior notice to the Customer.
19.7.4. Internet line speeds stipulated are the maximum line speeds, and although Ballito ISP will endeavour to achieve such maximums, no warranty is given that such line speeds will be maintained at all times.
19.8. Reporting Network Abuse and Complaints
Anyone may report a complaint, a violation or suspected violation of the Acceptable Use Policy to Ballito ISP by contacting Ballito ISP via email: email@example.com.
19.9. Breach of the Acceptable Use Policy
19.9.1. Ballito ISP may, in its sole discretion, determine what constitutes a breach of the Acceptable Use Policy.
19.9.2. Upon Ballito ISP becoming aware of an alleged violation of the Acceptable Use Policy, it may:
18.104.22.168. initiate an investigation into this alleged violation within a reasonable time after becoming aware thereof;
22.214.171.124. restrict or completely withdraw the Customer’s access to the Ballito ISP Infrastructure and Internet during the investigation in order to prevent further possible unauthorized activity – in these circumstances the Customer is not entitled to service credits for these outages.
19.9.3. If the Customer is found in violation of the Acceptable Use Policy, Ballito ISP may, in its sole discretion, restrict, suspend, or terminate the Customer’s account and/or pursue other civil remedies (including but not limited to any costs associated with the investigation of a substantiated policy violation). Generally, violations will be dealt with as follows, however, Ballito ISP may deviate from this if it determines it necessary:
126.96.36.199. first violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Cleanup Fee of R1,500 (one thousand five hundred rand) and the Customer’s account will be reviewed for possible termination;
188.8.131.52. second violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Cleanup Fee of R3,500 (three thousand five hundred rand) and immediate termination of the Customer’s account.
19.9.4. If a violation is a criminal offence, Ballito ISP will notify the appropriate law enforcement department of such violation.
19.9.5. The Customer will be liable for any and all costs incurred by Ballito ISP as a result of the Customer’s violation of the Acceptable Use Policy. This includes, but is not limited to, legal fees on an attorney own client basis 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, and an investigation fee of no more that R1,500 (one thousand five hundred rand) per hour that Ballito ISP personnel must spend to investigate any violations.
20. REFERRAL OF COMPLAINTS TO ICASA
20.1. 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.
20.2. Please note that under the ICASA Code of Conduct Regulations 2008 you must give us an opportunity to resolve the matter within the 14 (fourteen) day period before you have the right to escalate your complaint to ICASA.
20.3. ICASA can be contacted in the following ways:
20.3.1. telephone (031) 334 9500;
20.3.2. fax (012) 568 3444; or
20.3.3. email: firstname.lastname@example.org
20.4. 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 clause will survive any termination of this Agreement.
21. COUNTRY OF DOMICILE
21.1. The Ballito ISP website is governed by the laws of South Africa.
21.2. Ballito ISP chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature, Unit 7 Richard Park, Ballito Business Park, Ballito.
21.3. The Customer chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature, the physical address and e-mail address on the Application Form.