BISNET'S GENERAL TERMS & CONDITIONS
Bisnet's General Terms cover the general terms and conditions of our relationship which include the duration of the Agreement, fees payable by you, Bisnet's right to monitor communications and content in specific circumstances, steps to protect the security of your data and Bisnet's systems, when Bisnet is authorised to suspend or terminate your services and the resolution of disputes between us.
Summary of our General Terms & Conditions:
- The Agreement will commence when Bisnet provides you with a username and password.
- The Agreement is binding unless and until you or we give notice to terminate.
- We may change the features or functionality of the Services over time.
- You must comply with the Acceptable Use Policy that applies to your use of the Services.
- We can prevent your access to the Service/s if you breach the Agreement or for technical reasons.
- You accept that you will get no rights to the intellectual property in Bisnet's computer systems.
- Subject to your right to withdraw your consent in certain instances, you agree that we may obtain your personal information and use it, for certain specified purposes, including for, internal Bisnet marketing and contract administration as well as to enable us to collect your debit order payment.
- You agree that our liability to you is substantially limited.
- The Agreement is subject to South African law.
- We will use your given address as your address for service.
Read the full text of Bisnet's General Terms & Conditions.
BISNET'S SPECIFIC TERMS & CONDITIONS
Bisnet's Specific Terms go into more detail and address specific issues around our hosting packages (Web Hosting), e-mail and domain names. These terms must be viewed as an extension of our General Terms.
Read the full text of Bisnet's Specific Terms & Conditions.
Bisnet Hosting Terms and Conditions (General Terms)
(Last updated: 22 January 2008)
(Previous versions: none)
Bisnet Internet Services (Registration No. 2007/125222/23) ("Bisnet") is a South African web hosting service provider that provides a range of web hosting Services to its Customers. Bisnet provides the Services to its Customers subject to the terms and conditions of the Bisnet Hosting Terms, which include these General Terms as well as the Specific Terms and the Acceptable Use Policy. These documents can be found at www.bishost.co.za/page.php?pid=4&mid=47&sm=1 under their respective headings.
In the Bisnet Hosting Terms, unless a contrary intention appears –
1.1 the clause headings in the Bisnet Hosting Terms have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation;
1.2 any reference to (i) the singular includes the plural and vice versa, (ii) any gender includes the other genders and (iii) a natural person includes a juristic person and vice versa;
1.3 the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules;
1.4 unless the context indicates a contrary intention, the words and expressions defined in clause 2 shall, throughout the Bisnet Hosting Terms, bear the meanings assigned to them in that clause 2 and similar expressions shall bear corresponding meanings;
1.5 any reference to "days" shall be construed as being a reference to calendar "days" unless qualified by the word "business" in which instance a "business day" shall be any day other than a Saturday and a Sunday and/or a public holiday as gazetted by the Government of the Republic of South Africa from time to time. Any reference to "business hours" shall be construed as being the hours between 08h00 and 17h00 on any business day;
1.6 the word "include" and "including" means "include without limitation" and "including without limitation". 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;
1.7 terms other than those defined within these General Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings;
1.8 defined terms appearing in these General Terms in title case shall be given the meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with the ordinary meaning as qualified by clause 1.7 and shall, unless the context otherwise indicates, include the term as defined.
In the Bisnet Hosting Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause:
2.1 "Agreement" means the contract entered into between Bisnet and the Customer consisting of, inter alia, the Bisnet Hosting Terms and any application form, or addendum thereto, completed by the Customer;
2.2 "Commencement Date" means the date when a customer profile is created and Bisnet furnishes the Customer with the Customer Data;
2.3 "Customer" means (i) the party identified on the application form or in any addendum thereto, relating to the relevant Service subscribed for by the Customer and in the case of a Domain Name, means the registered holder of the Domain Name (as defined in the Specific Terms) and (ii) a Reseller enrolled under the Bisnet Reseller programme who hosts directly with Bisnet;
2.4 "Customer Data" means the username/s, password/s or e-mail address/es provided by Bisnet to the Customer as part of the Services, but expressly excluding Customer Domains managed by Bisnet as part of the Services;
2.5 "General Terms" means these terms and conditions;
2.6 "Bisnet Hosting Terms" means the General Terms, the Specific Terms and the Acceptable Use Policy;
2.7 "Intellectual Property Rights" means all patents, trademarks, service marks, design rights, copyright, trade or business name, know-how, concepts, ideas, methods, procedures, processes, techniques, models, reports, templates, software or any changes or additions thereto (if any) and other similar rights or obligations, whether or not registerable, registered or application for registration thereof has been made in any party of the world;
2.8 "Marks" means any trademarks, logos, brand names, domain names or other marks of either of the Parties;
2.9 "Party" and "Parties" means Bisnet and the Customer;
2.10 "Services" means the services provided by Bisnet to the Customer;
2.11 "Service Fees" means fees and charges payable by the Customer to Bisnet in respect of the Services, which Service Fees are dealt with in clause 7 hereunder and are set out in the application form/s, and any addenda thereto, completed by the Customer in respect of the Services;
2.12 "Specific Terms" mean the terms and conditions which supplement the General Terms and govern the use of individual Services selected by the Customer;
2.13 "Website" means the website from which the Services are provided, currently being http://www.bishost.co.za
3. Bisnet Hosting Terms
3.2 These General Terms set forth the general terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms.
3.3 To the extent that:
3.3.1 any individual Service selected by the Customer is not dealt with in the Specific Terms, such individual Service shall be governed by the General Terms and Acceptable Use Policy;
3.3.2 any Specific Terms are binding upon the Customer, those Specific Terms are deemed included in the Bisnet Hosting Terms.
3.4 The Acceptable Use Policy represents the terms and conditions pertaining generally to the Customer's use of the Services and specifies the activities prohibited by the Customer and is intended to enhance the use of the Internet by preventing unacceptable use. The Customer is required at all times to comply with the Acceptable Use Policy, which is deemed to form part of the Bisnet Hosting Terms. The Acceptable Use Policy, as amended from time to time, is posted on the Website.
4. Amendment to Bisnet Hosting Terms
4.1 Bisnet reserves the right, at any time, to amend any of the Bisnet Hosting Terms to which the Customer is bound without specific notice to the Customer. An updated version of the Bisnet Hosting Terms will be posted on the Website.
4.2 The Customer agrees that it is their responsibility as a diligent user to peruse any amended Bisnet Hosting Terms posted on the Website and the Customer undertakes to regularly visit the Website so as to remain advised of such amended Bisnet Hosting Terms.
4.3 If the Customer objects to any amended Bisnet Hosting Terms which are binding upon it or are to become binding upon it, the Customer is entitled to terminate its relationship with Bisnet upon the terms and conditions set forth in clause 14.1 below.
5. Customer Status
5.1 It is recorded that the Customer may be an incorporated entity (such as a company or close corporation), trust, partnership or individual.
5.2 To the extent that a person enters into the Agreement in a representative capacity on behalf of a Customer who is an incorporated entity or on behalf of an unincorporated entity, or in any other representative capacity recognised in South African law, the Customer hereby warrants that:
5.2.1 such person is legally authorised to do so and indemnifies Bisnet against any loss or damage that Bisnet may sustain resulting from such person's lack of authority;
5.2.2 all the information relating to the entity, trust, partnership, association or other person who he/she represents and which he/she has supplied to Bisnet at any time will be true, accurate and complete.
5.3 Bisnet reserves the right to treat all misrepresentations by the Customer or its representative as fraud and such person indemnifies Bisnet against any loss or damage that Bisnet may sustain resulting from such person's lack of authority.
5.4 If Bisnet discovers that the Customer has fraudulently contracted for the receipt of Services or that its representative has contracted without contractual capacity to do so, Bisnet will be entitled to terminate the Bisnet Hosting Terms and/or Service/s immediately without any further liability to the Customer whatsoever and the Customer shall not be entitled to claim any restitution or refund of any amount already paid, regardless of whether the Customer has used the Services or not.
5.5 The Customer shall, if requested by Bisnet, furnish Bisnet with sufficient evidence of the authority of the person who shall, on behalf of the Customer, take any action or execute any documents required or permitted to be taken or executed by such person under the Agreement. This would include providing proof of permission to debit from the authorised signatory of the Customer's bank account.
5.6 In the event of a dispute between individuals or entities involved with the Customer (including partners, shareholders, trustees, employees), Bisnet shall be entitled to act on the representation of a person claiming to be duly authorised to represent the Customer, without being obliged to obtain independent verification of such authority and the Customer indemnifies Bisnet from any action or inaction based on such representation. However, should Bisnet, in its sole and absolute discretion, require independent verification of the authority of any individual, the Customer shall provide same in a format reasonably acceptable to Bisnet.
6. Commencement and Duration
6.1 The application form submitted by the Customer to Bisnet will be treated as an offer by the Customer to make application for the Service/s. The Customer's offer shall only be deemed to have been received by Bisnet once this has been confirmed to the Customer by Bisnet. Although the Website is configured to confirm receipt of any offer ("Confirmation"), technical or other problems may delay or prevent such Confirmation. The Customer should contact Bisnet if it does not receive Confirmation from Bisnet shortly after having sent the offer. Confirmation shall not mean that a transaction has been concluded. It merely serves to confirm that the application has been received by Bisnet. Confirmation is deemed to have been sent by Bisnet as soon as this is reflected in Bisnet's log files.
6.2 The Bisnet Hosting Terms shall commence and become binding on the Customer with effect from the Commencement Date.
6.3 The Bisnet Hosting Terms shall endure for an indefinite period until terminated in terms of the provisions of clause 14 below.
6.4 Both Parties record and agree that Port Elizabeth, Eastern Cape shall be deemed to be the place where the Parties have concluded the Agreement or any portion thereof.
7. Service Fees
7.1 All Service Fees payable by the Customer in terms of the Bisnet Hosting Terms for Services are payable in advance.
7.2 The Service Fees shall be payable either on a monthly, quarterly, bi-annual or annual basis as specified on the Website and are calculated in accordance with the rate schedule on the Website.
7.3 The Service Fees shall be paid by way of debit order and the Customer hereby authorises Bisnet to effect the necessary transfers from the Customer's designated bank account at the beginning of each and every month for the continued duration of the Bisnet Hosting Terms. The Customer shall ensure that the debit order is in place within seven (7) days of the Commencement Date. A rejected debit order will accrue a handling fee of R50,00 per rejection (Recurring rejections will accrue a higher handling fee)
7.4 The Customer shall only be entitled to pay cash for the Services in circumstances where the Service Fee is payable on a bi-annual or annual basis. This would exclude any incremental over-usage charges.
7.5 Where the Customer's use of any service commences during a month rather than at the start of that month, the Customer will be charged on a pro rata basis for those Services provided during that month.
7.6 Bisnet reserves the right to amend or vary the Service Fees from time to time and any amendment or variation of such Service Fees will be deemed to be an amendment of the Bisnet Hosting Terms. In the event that Bisnet does amend its Service Fees, it will give the Customer at least thirty (30) days prior notice of such amendment to the Service Fees. If the Customer objects to any amended or varied Service Fees which affect it, it shall be entitled to terminate its relationship with Bisnet upon the terms and conditions set forth in clause 14.1 below.
7.7 The Customer acknowledges that it is not entitled to withhold any payment of any Service Fees due to Bisnet by reason of any alleged breach of the Bisnet Hosting Terms by Bisnet or for any other reasons whatsoever. In addition, the Customer acknowledges that it is not permitted to apply set-off to or demand any discount, refund (other than in terms of clause 7.10 below) or reduction in respect of any Service Fees owed to Bisnet.
7.8 The Customer acknowledges that the Service Fees (Where stipulated) are inclusive of value added tax. Should any alterations to the Value Added Tax Act, 89 of 1991 be gazetted or promulgated during the duration of the Bisnet Hosting Terms, resulting in a high level of Value Added Tax being attracted to any payment due under the Bisnet Hosting Terms, such increased Value Added Tax shall be borne by the Customer.
7.9 In the event of a dispute arising between the parties, the Customer shall be obliged to continue paying the Service Fees as and when they become due and payable in terms of the Bisnet Hosting Terms.
7.10 The Customer may terminate the Service within:
7.10.1 seven (7) days after the Commencement Date should the Customer decide not to continue subscribing for the Service/s; or
7.10.2 within thirty (30) days after the Commencement Date should Bisnet fail to meet the service levels for hosting services and e-mail services as specified in the Specific Terms,
provided that the Customer's right to terminate shall be exercised by notice from the Customer to Bisnet transmitted via e-mail to email@example.com. In the event of the Customer terminating the Service for the aforesaid reasons, the Customer shall be entitled to a refund of any Service Fees. Bisnet shall not, however, be obliged to refund the Customer with any third party costs already incurred by Bisnet directly or indirectly as a result of the initial request for the Service. The Customer remains responsible for any third party costs.
8.1 Whilst Bisnet monitors its Services to determine that its facilities are operating satisfactorily, Bisnet does not, as a general practice, monitor its Customers activities. Where Bisnet is required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 ("the Monitoring Act"), any interception of communications shall be strictly carried out in accordance with the requirements of the Monitoring Act, as and when required under the Monitoring Act.
8.2 With specific regard to the monitoring of content which is found on a website belonging to a Customer and which is hosted by Bisnet, the Customer acknowledges that Bisnet has no knowledge of, nor interest in, Customer content hosted by Bisnet or published by Bisnet on the Customer's behalf using the Services and further that Bisnet does not in any way contribute or approve such content.
8.3 Notwithstanding this, the Customer agrees that if Bisnet, in its sole and unfettered discretion determines that the Customer's content is in violation of any law (including the Films and Publications Act 65 of 1996) or of the Acceptable Use Policy, it may (i) forthwith request the Customer to remove such content; and/or (ii) forthwith require the Customer to amend or modify such content; and/or (iii) without notice terminate access to any Services and/or suspend or terminate any Services; and/or (iv) without notice, delete the offending content; and/or (v) notify the relevant authorities of the existence of such content (if required by law or otherwise), make any back-up, archive or other copies of such material as may be required by such authorities, disclose such elements of the Customer data as may be requested by such authorities and take such further steps as may be required by such authorities.
8.4 The Customer specifically agrees that it shall have no recourse against Bisnet in the event of Bisnet acting in terms of clause 8 and accordingly waives its right to make any claim or demand or to institute any legal proceedings against Bisnet.
9.1 All Customer Data allocated to the Customer is personal to the Customer and the Customer shall be liable for any loss or damage sustained by the Customer, Bisnet or any third party as a result of any actions by the Customer or any other person to whom the Customer has disclosed its Customer Data.
9.2 The Customer authorises Bisnet to act on any instruction given by and/or purporting to originate from the Customer, even if it transpires that both Bisnet and the Customer have been defrauded by someone else, unless the Customer has notified Bisnet in terms of clause 9.3 below prior to Bisnet acting on a fraudulent instruction.
9.3 If any security violations are reasonably believed to have occurred in connection with the Customer's account, Bisnet will investigate forthwith and, if necessary, change the relevant Customer data, including access codes and passwords and give the Customer immediate notification. A copy of the results of any investigation will be provided to the Customer at no cost.
9.4 The Customer shall advise Bisnet immediately should any other person gain access to its Customer Data following the Bisnet procedures relating to reporting misuse http://www.bishost.co.za/index.php/hosting/legal/reporting-abuse-procedure/ and shall give its full co-operation to Bisnet in any investigation carried out by Bisnet.
9.5 The Customer hereby indemnifies Bisnet against any claim howsoever arising from (i) the Customer's disclosure of its Customer Data to a third person, (ii) the use of such Customer Data by a third person and/or (iii) any action by the Customer or third party as a result thereof.
9.6 Bisnet reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its infrastructure and the Customer undertakes that it will not do or permit anything to be done which will compromise Bisnet's security.
9.7 Although Bisnet applies reasonable endeavours to provide disaster recovery, Bisnet does not specify any recovery time, nor is Bisnet liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with any cause whatsoever as a result of its failure to provide, or delay in providing, or providing only partial disaster recovery. The Customer is required to make back-ups of its data. Nothing contained in the Bisnet Hosting Terms shall be construed as a representation that any back-ups of data implemented by Bisnet will be successful or in any way will avoid disaster.
10.1 Bisnet warrants that it has the facilities, infrastructure, capacity and capability to provide the Services.
10.2 Save for the aforegoing warranty, the Services are provided "as is" and "as available" and without any further warranty of any nature whatsoever, whether express or implied, including without limitation warranties of merchantability, fitness for purpose, title or non-infringement.
10.3 Under no circumstances shall any advice or information furnished by Bisnet, its agents or employees be construed as a warranty of any kind.
11. Intellectual Property Rights
11.1 The Customer is obliged to comply with all laws applicable to any Intellectual Property Rights in respect of any data and/or information accessed, retrieved or stored by the Customer through the Customer's use of the Services.
11.2 The Customer is prohibited from using any of the Bisnet or M4ubill Marks without the prior written approval of Bisnet.
11.3 The Customer hereby grants Bisnet a non-exclusive licence to use its Marks for the limited purposes of enabling Bisnet to exercise its rights or to fulfil its obligations under the Bisnet Hosting Terms.
11.4 Other than as specifically provided for in the Bisnet Hosting Terms, Bisnet will wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all Intellectual Property Rights employed in or otherwise related to its network infrastructure, business and the provision of any of the Services in terms of the Bisnet Hosting Terms.
12. Customer Indemnities
12.1 The Customer acknowledges that the Services are provided subject to all applicable laws and the Customer accordingly hereby indemnifies Bisnet from any liability attributable to any regulatory body or civil or criminal proceedings instituted against Bisnet or for any loss or damage suffered by the Customer or any third party as a consequence of any interruption or unavailability of the Services.
12.2 The Customer hereby unconditionally and irrevocably indemnifies Bisnet and agrees to hold Bisnet free from and harmless against all losses suffered or incurred by the Customer or Bisnet or instituted against Bisnet by any third party as a direct or indirect result of the Customer's use of the Services, the Customer's failure to comply with any Bisnet Hosting Terms, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included, but without limitation, within the ambit of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following: (i) software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services, (ii) non-performance or unavailability, of whatever nature and howsoever arising, of any of the services provided by a electronic communications network or service provider, including, but not limited to, line failure, or in any international Services or remote mail servers, (iii) non-performance or unavailability, of whatever nature and howsoever rising, of external communications networks to which the Customer or Bisnet's network infrastructure is connected and (iv) repairs, maintenance, upgrades, modifications, alternations or replacement of any hardware forming part of the Services or any faults or defects of whatever nature in such hardware.
12.3 The Customer shall defend Bisnet against any claim against which Bisnet is indemnified in terms of clause 12.2 and elsewhere in the Bisnet Hosting Terms ("indemnified claim") and pay any and all costs, damages and expenses (including attorneys fees on the attorney and own client scale) finally awarded against Bisnet by a court of competent jurisdiction or agreed to in a written settlement agreement signed by the Customer directly arising out of such indemnified claim, provided that (i) Bisnet shall notify the Customer in writing as soon as Bisnet becomes aware of the indemnified claim to enable the Customer to take steps to contest it, (ii) the Customer may assume sole control of the defence of such claim and/or related settlement negotiations and (iii) Bisnet shall provide the Customer, at the Customer's expense, with the assistance, information and authority necessary to enable the Customer to perform its obligations under this clause.
12.4 The Customer shall pay to Bisnet the amount of an indemnified claim forthwith upon receipt of request for payment unless the Customer contests the indemnified claim in which case the Customer shall pay to Bisnet the amount of the indemnified claim forthwith after any judgment or order is granted, provided that in those circumstances where the Customer does not at any time proceed with the contest of the claim timeously and promptly, Bisnet shall be entitled to require the Customer either to pay the amount of the claim in question in trust to its attorneys pending the outcome of the proceedings, or Bisnet shall be entitled to require the Customer to give proper and adequate security therefore.
13. Suspension of the Services
13.1 Bisnet is entitled to temporarily suspend its obligations in terms of the Bisnet Hosting Terms (i) in order to give effect to the provisions of clauses 8.3 and/or 9.5, (ii) in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the Services and/or (iii) where third parties have alleged that the Customer has engaged in unlawful activities arising from or connected to the Services.
13.2 Where circumstances permit, Bisnet will use its best endeavours to provide prior notice of any such suspension to the Customer and Bisnet shall not be liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with or from any cause whatsoever as a result of such suspension.
14.1 Termination by either Party: Either party may terminate the Bisnet Hosting Terms together with all Services, or individual Services, on thirty (30) days written notice (firstname.lastname@example.org) to the other Party at their chosen domicilium citandi et executandi in terms of clause 18. It is also possible to terminate your hosting with Bisnet via the M4ubill control panel.
14.2 All purported terms of termination communicated to Bisnet in any manner other than as specified above may, at Bisnet's sole discretion, be deemed to have been invalidly given and without force and effect.
14.3 Breach: Should the Customer breach any of the Bisnet Hosting Terms, then Bisnet shall be entitled, without prejudice to any other rights that Bisnet may have and without notice to the Customer, to (i) forthwith claim immediate payment of all outstanding charges due to Bisnet, (ii) terminate or suspend the Customer's use of any or all of the Services, (iii) terminate its relationship with the Customer and/or (iv) list the Customer with any credit bureau or Internet service provider list or the South African Fraud Prevention Service which the Customer hereby expressly consents to. In all instances, Bisnet shall be entitled to retain all Services Fees already paid by the Customer and recover all of its costs associated with the Customer's breach, including without limitation, legal costs on an attorney and own client scale, whether incurred prior to the institution of, or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of such judgment.
14.4 Retention of hardware or software: The Customer acknowledges that where Bisnet is in possession of any hardware or software belonging to the Customer as a result of Bisnet's provision of the Services to the Customer, and the Customer is in default of its payment obligations to Bisnet, Bisnet shall be entitled to retain such hardware and/or software pending the Customer's settlement of all amounts owed by the Customer to Bisnet. In addition, where the Customer fails to make payment of all amounts owed to Bisnet within sixty (60) days of any notice by Bisnet to the Customer in that regard, Bisnet shall be entitled, but not obliged, to dispose of such property in order to defray any expenses as well as any amounts owed by the Customer to Bisnet.
14.5 Return of hardware or software: Where the Customer is in possession of any Bisnet hardware or software in consequence of the provision of a Service and the Service to which that hardware or software relates is terminated, the Customer will immediately return such hardware or software to Bisnet and shall not be entitled to retain such hardware or software for any reason whatsoever.
15. Force Majeure
15.1 On the happening of a Force Majeure Event, any delay or failure in performance or breach by Bisnet occasioned thereby or resulting therefrom will not be deemed to be a breach of the Bisnet Hosting Terms by Bisnet, nor shall it subject Bisnet to any liability whatsoever.
15.2 For purposes of clause 15.1, a "Force Majeure Event" means any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure and/or telecommunications lines provided by any third party, including, but not limited to, the Telkom Limited group of companies, or any circumstances of like or different nature beyond Bisnet's reasonable control.
16. Dispute Resolution
16.1 Any dispute which may arise between the Parties shall be referred to arbitration and resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator.
16.2 The arbitrator shall be agreed upon between the Parties and failing such agreement, and within a period of ten (10) days after the arbitration has been demanded by either the Parties, either of the Parties shall be entitled to request the chairperson for the time being of AFSA to make the appointment who, in making the appointment, shall have regard to the Party's requirement of speedy arbitration.
16.3 Clauses 16.1 and 16.2 shall not preclude either Party from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator.
16.4 The arbitration shall be held (i) in Port Elizabeth at a venue agreed to between the Parties in writing, (ii) in English and (iii) as soon as practically possible and with a view to it being completed within twenty one (21) days after it has been demanded.
16.5 The Parties irrevocably agree that any award that may be made by the arbitrator (i) shall be final and binding, (ii) will be carried into effect and (iii) may be made an order of any Court to whose jurisdiction the Parties are subject.
16.6 The provisions of this clause 16 (i) constitute an irrevocably consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or to claim at any such proceedings that it is not bound by such provisions and (ii) are severable from the other provisions of the Bisnet Hosting Terms and shall remain in effect notwithstanding the termination of, or invalidity for any reason, of any of the Bisnet Hosting Terms.
17. Exclusion and Limitation of Liability
17.1 Neither Bisnet, its directors, employees, agents, consultants and advisers shall be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising, or may arise out of the Services and/or the use thereof, under contract, delict including negligence and / or gross negligence or otherwise), sustained by the Customer, its directors and/or servants, including but not limited to any loss of profits, loss of operation time, corruption or loss of information and/or loss of contracts and/or profits.
17.2 Bisnet's total liability to the Customer shall accordingly be limited to the payment of direct damages only, which direct damages shall be limited to a maximum amount of (i) three months of the Customer's base hosting fee or (ii) R2 500,00 (Two Thousand Five Hundred Rand), whichever is the lesser.
17.3 Bisnet's liability for direct damages under clause 17.2 shall be excluded where such liability results or may result from the Customer's use of any third party Services or products accessible or used in conjunction with the Services, but which are not provided by Bisnet.
17.4 The exclusion of liability under clauses 17.1 and 17.3 and limitation of liability under clause 17.2 shall apply notwithstanding the fact that Bisnet may have been advised of the possibility of such loss or damage being incurred prior to its occurrence.
18. Domicilium Citandi Et Executandi
18.1 Addresses: The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:
18.1.1 Bisnet: 71 Sixth Avenue, Newton Park, Port Elizabeth, Eastern Cape, South Africa, 041 365 3642(Tel), 0866-7626-61 (fax);
18.1.2 The Customer: The physical address furnished to Bisnet on the application form when the Customer first subscribed for the Services, as amended in writing pursuant to any change of address, which the Customer is hereby required to furnish to Bisnet within ten (10) days of the change of such address.
18.2 Notice or communication to be in writing: Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
18.3 Requirements for notices: Any notice to a Party (i) sent by prepaid registered post in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 10th (tenth) business day after posting, (ii) delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery, or (iii) sent by telefax to its chosen telefax number stipulated in clause 18(a), shall be deemed to have been received on the date of despatch.
19.1 Whole Agreement: The Agreement, together with the other documents making up the Bisnet Hosting Terms constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in the Agreement.
19.2 No Variation: No variation or consensual cancellation of the Agreement and no addition to the Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives.
19.3 Waiver: No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
19.4 Severability: Should any of the terms and conditions of the Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions, which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.
19.5 Applicable Law: The Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
19.6 Survival: Notwithstanding termination of the Agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.