Bisnet Internet Services cc (Registration No. 2007/125222/23) ("Bisnet") is a South African web hosting service provider which 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 Specific Terms, the General Terms as well as the Acceptable Use Policy which are published at www.bishost.co.za/page.php?pid=4&sm=1 under their respective headings.
1. Interpretation and Definitions
1.1 Unless the context clearly indicates to the contrary, any term defined in the General Terms shall, when used in these Specific Terms, bear the same meaning as defined in the General Terms.
1.2 Unless the context clearly indicates to the contrary, the following words will have the meanings assigned to them in this clause:
1.2.1 "Abusive Content" means content which Bisnet considers to be defamatory, discriminatory, obscene, lewd, offensive, threatening, abusive, harassing, harmful, hateful, as hatespeech, or which contains child, explicit or violent pornography, content which may be harmful to minors, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person's rights, regardless of whether such content is accessed, transmitted, propagated, distributed, created or stored in a public or private context;
1.2.2 "Application Form" means the application form completed by the Customer for the initiation of the individual Service/s as may be amended from time to time in terms of the Agreement and specifically includes any web-based interactive version as well as non-interactive electronic and paper versions of the Application Form;
1.2.3 "Domain Name/s" means the domain name or names that is/are the subject of the Domain Services;
1.2.4 "Domain Services" means the Services Bisnet renders to the Customer in respect of the Domain Name/s as set out in these Special Terms;
1.2.5 "Email" means the Services Bisnet renders to the Customer of (i) an email box provided by Bisnet to the Customer on Bisnet's systems, which includes an email address and/or aliases to such email address from time to time and (ii) best endeavours virus protection and filtering for unsolicited commercial email (SPAM);
1.2.6 "General Terms" mean the terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms;
1.2.7 "Harmful Code" means any computer code which (i) is designed to disrupt, disable, harm, or otherwise impede in any manner the operation of any software, hardware or network (generally referred to as "viruses", "Trojan horses" or "worms"), (ii) would disable any software, hardware or network or impair in any way its operation based on the running out of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (generally referred to as "time bombs", "time locks", or "drop dead" code), (iii) would permit any person to access any software, hardware or network of any other person without consent (generally referred to as "trap", "access code", "back door" or "trap door" codes) and (iv) any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause such software, hardware or networks of any person to cease functioning or to damage or corrupt data, storage media, programmes, equipment or communications, or otherwise interfere with operations;
1.2.8 "Location" means the Bisnet Data Centres situated in Port Elizabeth, Cape Town & Johannesburg as well as in Germany and/or any other address indicated by Bisnet from time to time;
1.2.9 "Misrepresentation" by a Customer includes (without limitation) (i) actions designed to deceive, mislead, defraud or otherwise make incorrect representations to any person regarding any fact or circumstance, (ii) impersonating or attempting to impersonate or otherwise misrepresenting your identity to any person for whatever purpose, (iii) altering the content of communications received by you and thereafter forwarding same to others without indicating the nature of the alterations and (iv) forging or otherwise manipulating origination details and data on any electronic data message generated by the Server with a view to disguising or deleting the origin of anything posted or transmitted including, without limitation, the use of "Socks Proxies", "EZBounce", "Vhosts", "BNC's" and/or any other software or hardware methods used to disguise or misrepresent your own IP address;
1.2.10 "Party" and "Parties" mean Bisnet and the Customer;
1.2.11 "Registrar" means the entities referred to in clause 5 or any replacement thereof and/or any other entity who attends to the administration of Domain Names;
1.2.12 "Server" means the computer hardware, machinery and equipment on which the software operates;
1.2.13 "Server Hosting" means the Services as contemplated hereunder which Bisnet renders to the Customer;
1.2.14 "Software" means the operating system and applications provided by Bisnet;
1.2.15 "System Abuse" means any conduct which does or may (i) damage, impair, overburden or disable any system of any person (including us) using the Server or Bisnet's hardware, software and network, (ii) interfere with any other person's use of the Internet or of the Server or Bisnet's hardware, software or network, (iii) compromise or tamper with the security of Bisnet's or any other person's software, hardware, systems, networks or the Server including (without limitation) spamming and mass messaging, the use of software and technologies known as "floodbots", "clonebots", "automated client" ( e.g. "bots", "fserv" or "script"), nuking and nuking tools (e.g."7th Sphere").
2. Undertakings and Acknowledgements
2.1 Bisnet undertakes to use its reasonable endeavors to provide the Services to the Customer on a continuous basis and for the duration of the Customer's agreement with Bisnet.
2.2 Although Bisnet uses reasonable care and diligence to ensure that the Services are available, accurate, complete, correct, error free, secure, up to date and/or reliable, the Customer agrees that the Services are rendered "as is" and "as available" and is used at the Customer's own discretion and risk.
3. Terms and Conditions Specific to Hosting
3.1 Bisnet provides Servers, space on shared Servers and hosting of Customer Servers, together with web services and email facilities for web sites controlled by individuals or companies that do not have their own web servers.
3.2 The Customer shall not:
3.2.1 make any Misrepresentation;
3.2.2 post, upload or transmit any Abusive Content by means of the Server or through Bisnet's information and communications facilities;
3.2.3 replicate or store Abusive Content on the Server;
3.2.4 perform System Abuse;
3.2.5 propagate, distribute or transmit Harmful Code, whether or not damage is actually caused thereby;
3.2.6 access any of the Bisnet or any third party hardware, software or network without authorisation or through hacking, password mining or any other means; or
3.2.7 help any third party to do any of the above.
3.3 The Customer agrees that if Bisnet, in its sole and unfettered discretion determines that the Customer has breached any of 3.2.1 to 3.2.7 above, Bisnet shall be entitled to exercise any rights it may have available to it in law, including without notice terminate access to any Services and/or suspend or terminate any Services.
3.4 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 on a Server or a shared hosting account and further that Bisnet does not in any way contribute or approve such content.
3.5 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.
3.6 The Customer further acknowledges and agrees that nothing that Bisnet does in the performance of its obligations in terms of the Service shall be construed as an assumption of responsibility or liability by Bisnet arising from or in connection with any content as aforesaid. In particular, the limitation of liability in the General Terms shall apply specifically to any loss, destruction or corruption of the Customer's data, irrespective of the cause thereof, including Bisnet's negligence and any system error or failure, whether foreseen or unforeseen.
Managed Shared Hosting (Web Hosting)
3.7 Bisnet will make an account available on a Server, where the Server is shared with other Customers. The Server will at all times remain the property of Bisnet. Bisnet shall be responsible for the setup, as per the standard managed hosting server configuration, of the Server at the Location on behalf of the Customer. Bisnet shall not be responsible for the use by the Customer of any software that it may install (and any vulnerabilities including traffic generated as per clause 3.9 that may result from the use of such software). Such software is accordingly used by the Customer at its own risk.
3.8 In this environment, Customers do impact negatively on other Customers at times. Should Bisnet deem a Customer's actions or activity on the Customer's account to be negatively affecting other Customers, Bisnet reserves the right to relocate or disable such account or accounts without any prior notice. If the account is found to be in violation of Bisnet's Acceptable Use Policy, it may result in termination of the account should corrective measures not be taken by the Customer.
3.9 Where appropriate, Bisnet will in its sole discretion, maintain the software on its managed servers.
3.10 The Customer shall remain solely responsible for all bandwidth and traffic related to his hosting account. This includes regularly monitoring usage via Virtualmin and the Customer shall be liable for any over-usage charges. Any traffic management and reporting tools provided by Bisnet are provided solely to assist the Customer in this process, but do not absolve the Customer of responsibility, nor place any such responsibility on Bisnet. Should the Customer elect to make use of any such traffic management and reporting tools, the Customer acknowledges and accepts (i) that all information will not be real time information and that there will always be a one (1) day delay in the furnishing of such information and (ii) that Bisnet accordingly will not be responsible for any traffic spikes, information or denial of service attacks, or any loss or damage sustained by the Customer resulting from the information not being provided in real time. Bisnet is not entitled to provide the Customer with further information on traffic usage other than what it reported via Virtualmin.
3.11 Bisnet is not responsible for any licensing of any software used by the Customer.
Managed Dedicated Hosting
3.12 Bisnet shall make a Server available to the Customer for its own exclusive use. The Server will at all times remain the property of Bisnet. Bisnet shall be responsible for the setup and management of the Server at the Location on behalf of the Customer.
3.13 All server log files remain the property of Bisnet. Should the Customer request to be furnished with any server log files, a copy of the relevant log file(s) will be provided to the Customer.
3.14 The Customer shall under no circumstances be entitled to remove the Server from a Location.
3.15 Bisnet will be responsible for the management of the Server, both the hardware and the software, this includes upgrades at Bisnet's sole discretion.
3.16 The Customer shall remain solely responsible for all bandwidth and traffic management of the Server. This includes regularly monitoring usage via Virtualmin and the Customer shall be liable for any over-usage charges. Any traffic management and reporting tools provided by Bisnet are provided solely to assist the Customer in this process, but do not absolve the Customer of responsibility, nor place any such responsibility on Bisnet. Should the Customer elect to make use of any such traffic management and reporting tools, the Customer acknowledges and accepts (i) that all information will not be real time information and that there will always be a one (1) day delay in the furnishing of such information and (ii) that Bisnet accordingly will not be responsible for any traffic spikes, information or denial of service attacks, or any loss or damage sustained by the Customer resulting from the information not being provided in real time. Bisnet is not entitled to provide the Customer with further information on traffic usage other than what it reported via Virtualmin.
3.17 Should the Server become the target or source of any form of denial of Service attack, Bisnet reserves the right to disconnect the Server from the network should it deem that no other solution is possible at that stage.
3.18 Bisnet shall not be responsible for the use by the Customer of any software that it may install (and any vulnerabilities including traffic generated as per clause 3.16 that may result from the use of such software). Such software is accordingly used by the Customer at its own risk.
3.19 Bisnet is not responsible for any licensing of any software used by the Customer.
Managed Hosting (Shared and Dedicated) Service Availability and Service Level Guarantee
Network Uptime Guarantee
3.20 Bisnet guarantees that its network will be available 99.9% of the time in a given month, excluding scheduled maintenance. This means that the Customer should not experience network downtime of more than 43 minutes in any given month counted from the first day of every month. Network uptime includes functioning of all network infrastructure including routers, switches, firewall and cabling. Network downtime exists when a Customer is unable to transmit and receive data to and from Bisnet's Managed Service and is measured according to Bisnet's monitoring system.
3.21 If network uptime is less than 99.9% (i.e. downtime exceeds 43 minutes in a given month), Bisnet will credit the Customer 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of the Customers' monthly fee for the affected hosting account or server).
3.22 The Customer shall not be entitled to the aforesaid credit (i) in the event of there being a degradation of the Service outside Bisnet's control, (ii) during scheduled maintenance windows, (iii) on the happening of a force majeure event, (iv) where the downtime is attributable to failure of access circuits to the Bisnet network, Domain Name Server issues outside the direct control of Bisnet, DNS propagation, negligent Customer acts or omissions or outages elsewhere on the Internet that hinder access to the Customer's hosting account. Bisnet is furthermore not responsible for browser or DNS caching that may make the Customer's website appear inaccessible when others can still access it. The aforesaid exclusions shall not apply where the problems arise from Bisnet server links to the Internet or Bisnet routers.
3.23 Should the Customer wish to exercise its rights as aforesaid, the Customer shall request the same by forwarding an e-mail to Bisnet at email@example.com. The e-mail shall include the domain / server name associated with the Customer's account in the "subject" line. Each request must include the Customer's account number as well as the dates and times of the network unavailability. The request must be received within 48 hours of the aforementioned downtime. Only once Bisnet confirms the network unavailability according to its monitoring system, will the credits be supplied to the Customer within two billing cycles after Bisnet's receipt of the aforesaid requests, in accordance with Bisnet's Refund Policy http://www.bishost.co.za/page.php?pid=4&sm=1. Notwithstanding anything to the contrary herein contained, the total amount credited to the Customer in a particular month shall not exceed the total hosting fee paid by the Customer for the month in question.
4. Terms and Conditions Specific to email
4.1 Bisnet shall provide the following email related Services for Customers selecting shared or managed dedicated hosting only:
4.1.1 Filtering of unsolicited commercial email (SPAM): This is done on a best effort basis, without any guarantees, using appropriate best of breed technologies (e.g. SpamAssassin which is the most widely used open source filtering software and sqlgrey);
4.1.2 Virus filtering: This is done on a best effort basis without any guarantees, using appropriate best of breed technologies (e.g. Clam which is a very popular open source solution).
4.1.3 An SMTP (simple mail transfer protocol) server for the sending of outgoing mail;
4.1.4 A POP3 (post office protocol) server for the downloading of incoming mail.
4.2 Bisnet shall endeavour to make the Customer's email environment secure and reliable.
4.3 The Customer acknowledges that Bisnet shall (i) use its reasonable endeavours to support the setup and configuration and (ii) not be held responsible should there be any incompatibility between the Bisnet Systems and any other third party application.
4.4 The Customer shall not use the Bisnet Email Service to (i) send messages or communications which are unsolicited, offensive, abusive, indecent or obscene, (ii) send messages causing annoyance, inconvenience or anxiety to other users of the Internet, (iii) send messages for the purposes of fraud and/or with the intention of committing a criminal offence and (iv) use the Email Service in a way which breaches the provisions of the Acceptable Use Policy.
4.5 Bisnet shall be entitled to prevent the sending of bulk unsolicited Email, to and/or from a Server where (i) Bisnet identifies a Server that has an open mail relay, (ii) a significant volume of Email is sent from a Domain in a defined time scale and (iii) Bisnet has received any complaints concerning unsolicited Email originating from a Bisnet hosted Domain.
4.6 Bisnet shall be entitled to disable a Domain held on Bisnet's Servers to prevent Bisnet's IP addresses being blocked by IP address blocking technologies or services, where Bisnet has any complaints concerning unsolicited Email originating from or unsolicited Email being sent to promote sites being hosted on a Bisnet Server. The Customer of the offending Domain will be obliged to pay any third party costs required to unblock Bisnet's IP address. Refusal to do so may result in termination of Bisnet's hosting services.
5. Terms and Conditions Specific to Domain Names
5.1 The Customer acknowledges that:
5.1.1 all Domain Names registered by Bisnet on behalf of the Customer within the .ZA domain name space, or registered by the Customer directly or through third parties are subject to the terms and conditions of the relevant domain name Registry, as such terms and conditions may be amended from time to time,
5.1.2 Bisnet utilises the Services of various Registrars to register generic Top Level Domains (gTLDs such as .COM and .ORG) as well as names in non-South African country code Top Level Domains (ccTLDs such as .uk and .eu) which registration is subject to the terms and conditions of the relevant Registrar and Registry, as amended from time to time,
5.1.3 registration, maintenance, transfer of a Domain Name is subject to the terms and conditions of the relevant Registry operator who allocates and governs such Domain Name and that Bisnet cannot guarantee the registration of the Domain Name/s selected by the Customer,
5.1.4 Registrars used by Bisnet may change or be replaced from time to time.
5.2 Bisnet shall use its best efforts to attend to the registration of a Domain Name or, where applicable, the transfer of an existing Domain Name as soon as reasonably possible after the commencement of the Domain Services. Bisnet shall insert its details as the billing and technical contact of the relevant Domain Name/s, unless the Customer registers the domain itself and / or manages the domain record with the Registrar directly.
5.3 For the avoidance of doubt it is recorded that the Domain Name shall not become the property of Bisnet and Bisnet shall not insert its details as the registrant of such Domain Name/s.
5.4 The Customer agrees (i) to pay Bisnet in addition to any Service Fees, all reasonable expenses and/or charges relating to the registration, transfer or renewal of a Domain Name and (ii) that Bisnet shall, as part of the Domain Services, host the Domain Name.
5.5 The Customer warrants in favour of Bisnet that (i) it is the lawful registrant of the Domain Name/s or it has the consent of the registrant to use such Domain Name/s or it is not prohibited by law or otherwise from registering such Domain Name/s and (ii) in using the Domain Name, it has not violated any Intellectual Property Rights of whatever nature of any person who may lawfully claim title of whatever nature to such Domain Name or to any word or name forming a constituent part of such Domain Name/s.
5.6 The Customer acknowledges and agrees that Bisnet has no interest in the Domain Name/s and agrees that nothing that Bisnet does in the performance of its obligations in terms of the Domain Services shall be construed as an assumption of responsibility or liability by Bisnet for attending to the Domain Services.
5.7 The Customer further acknowledges that:
5.7.1 Bisnet does not guarantee that the Domain Name/s requested by the Customer is/are available for registration or that the use of such Domain Name/s will not infringe any third party rights. Domains are available on a first come, first serve basis and are available either through Bisnet or directly with a Registrar. Should the Customer register a domain through Bisnet , and provide incomplete or inaccurate information which will lead to a delay in the registration process, and the domain is subsequently taken by someone else, Bisnet shall not be held responsible.
5.7.2 Bisnet is not a Domain Name provider, but merely a third party agent acting on the Customer's instructions, to the extent that those instructions are possible and lawful,
5.7.3 the registration of the Domain Name/s and its/their future availability and use are subject to the terms and conditions of use of the relevant Domain Name Registry,
5.7.4 Bisnet charges an additional fee for the administrative processes involved in applying for, and where applicable, maintaining the registration of a Domain Name/s on behalf of the Customer and
5.7.5 any Service Fees incurred in the process of applying for, renewal and maintenance of registration of the Domain Name/s shall be borne exclusively by the Customer and are not refundable.
5.8 The Customer further acknowledges that any Internet Protocol (IP) address allocated by Bisnet to the Customer, shall at all times remain the sole property of Bisnet who grants the Customer a non-exclusive, non-transferable licence to use such Internet Protocol address for the duration of the Bisnet Hosting Terms.
5.9 Without limiting the generality of the Bisnet Hosting Terms and the Acceptable Use Policy, the Customer hereby indemnifies Bisnet and holds it harmless against any liability and/or claim of whatever nature made by any person for any loss or damages suffered or arising directly or indirectly from the use, display and/or publication of the Domain Name/s.
Changes to the Domain Name
5.10 The Customer agrees that Bisnet shall not be entitled to cancel, transfer or otherwise make changes to the Domain Name/s, including transferring registration of the Domain Name/s from the registered holder to another person or entity without being in receipt of:
5.10.1 written instructions from the Customer or its authorised agent to take such action;
5.10.2 written instructions from the liquidator of an incorporated or unincorporated business, where the business has been wound up, whether provisionally or finally, whether compulsory or voluntary, to do so;
5.10.3 a written and valid resolution of the members/shareholders/trustees of a close corporation/company/trust authorising the transfer of the domain name from the close corporation/company/trust to the new registrant;
5.10.4 a written consent signed by all the partners in a partnership where a partner requests that the Domain Name be transferred to him/her/it;
5.10.5 a letter from the executor where the registrant of the Domain Name has died requesting that the Domain Name be transferred to a named entity;
5.10.6 an order of Court in relation to any of 5.10.1 to 5.10.5; or
5.10.7 being in receipt of an order of an Arbitration Tribunal of competent jurisdiction requiring such action in any administrative proceeding to which the Customer is a party and which was conducted under the Uniform Dispute Resolution Policy adopted by ICANN, the Alternate Dispute Resolution Regulations applicable in South Africa or any similar proceedings in any other ccTLD or gTLD (see clause below).
Default in respect of the Domain Service
5.11 Should a Customer fail to pay Bisnet for the registration of any Domain Name/s, renewals, updates or changes thereto or any other charges relating to the administration of the domain, Bisnet shall be entitled, in its sole and absolute discretion to (i) exercise a lien over such Domain Name/s until such time as the relevant costs or charges have been paid, (ii) procure or allow the suspension, termination or deletion of the Domain Name/s; and/or (iii) transfer the Domain Name/s.
Termination of the Domain Service
5.12 Should the Domain Service be terminated for any reason whatsoever, Bisnet shall, without incurring any liability of whatever nature and without limiting the generality of the Bisnet Hosting Terms, be entitled to notify the relevant Registrar and/or Registry of such termination and to instruct such Registrar and/or Registry to remove Bisnet and/or any of its systems as the host of the Domain Name/s even if no replacement is available.
5.13 In the event that any of the Registrars and/or Registries amend, suspend or terminate its provision of a Domain Service or any other aspect of its services upon which Bisnet depends for the provision of the Domain Service to the Customer, Bisnet will use reasonable endeavours to ensure the continuance of the Domain Service. In the event that Bisnet is unable to ensure the continuance under any circumstances, Bisnet will not be liable to the Customer or any other third party for any loss or damages (as contemplated in the Bisnet Hosting Terms) incurred by the Customer or by any third party arising from, or in any way relating to, the termination of the Domain Services.
Domain Name Disputes
5.14 Various alternate dispute resolution mechanisms apply in respect of domain names registered globally, including the Uniform Dispute Resolution Policy adopted by ICANN for certain gTLDs, the Alternate Dispute Resolution Regulations applicable in South Africa and similar proceedings in other ccTLDs. Such mechanisms allow for the resolution of disputes concerning the registration and/or use of a domain name.
5.15 Disputes between the Customer and any third party regarding the registration and/or use of the Domain Name/s registration may be brought in terms of such alternate dispute resolution mechanisms and/or a Court or Arbitration Tribunal that may be available to the Customer and such third party.
5.16 Bisnet will not participate in any way in any dispute between the Customer and any third party. In the event of the Customer involving Bisnet in any dispute, the Customer hereby furnishes Bisnet with the indemnity as provided for in clause 12 of the General Terms. It is specifically recorded that the Customer shall be responsible for all legal costs incurred by Bisnet or the attorney and own Customer scale.9>