This document contains the general terms and conditions, which governs the subscription to and usage of Kagiso Online’s services. These General Terms and Conditions must be read together with the Services Terms and Conditions and the Policies of Kagiso Online. By subscribing to and using any of the services offered by Kagiso Online, the Customer and its users irrevocably agree to be bound by the provisions of this General Terms and Conditions, the relevant Services Terms and Conditions and the Policies of Kagiso Online. In the event of a discrepancy between this Agreement and the Service Terms and Conditions, the Service Terms and Conditions will take precedence.
General Terms and Conditions
1. Definitions and Interpretation
In this Agreement, the words hereunder will have the meanings assigned to them below:- “Agreement” means these General Terms and Conditions, applicable Services Terms and Conditions, all the Policies of Kagiso Online and all other application or order forms, as amended and updated from time to time; “Confidential Information” means any information or data relating to Kagiso Online and any Group Company (even if not marked as being confidential, restricted, secret, proprietary or any similar designation), in whatever format and whether recorded or not (and if recorded, whether recorded in writing, on any electronic medium or otherwise), which: by its nature or content is identifiable as confidential and/or proprietary to the Company; or is intended or by its nature or content could reasonably be expected to be confidential and/or proprietary to the Company, and includes:
information relating to existing and future strategic objectives and existing and future business plans and corporate opportunities; trade secrets;
technical information, techniques, know-how, operating methods and procedures; details of costs, sources of materials and customer lists (whether actual or potential) and other information relating to the existing and prospective customers and suppliers;
pricing, price lists and purchasing policies; computer data, programmes and source codes; information contained in or constituting the hardware or software, including third party products and associated material; information relating to the network telecommunications services and facilities; any and all methodologies, formulae and related information in developed software and processes and other business; products, drawings, designs, plans, functional and technical requirements and specifications; Intellectual Property that is proprietary or that is proprietary to a third party and in respect of which the Company or any company in the Group has rights of use or possession; marketing information of whatsoever nature or kind; financial information of whatsoever nature or kind;
information relating to any contracts to which the Company or any Group company is a party; and any information which is not readily available to a competitor of the Company and/or any of its Related Companies in the normal and ordinary course of business. “CPA” means the Consumer Protection Act No. 68 of 2008 of South Africa; “Customer” “you” or “your” means the Customer making use of the Services offered and provided by Kagiso Online and includes all the users of the Customer that have the benefit of or avail of the Services in terms of this Agreement;
“Kagiso Online” means Kagiso Online (Pty) Ltd, trading as Kagiso Online, with its registration number: 2012/130337/07, a private company duly incorporated under the laws of South Africa, with its business address at Zwelitsha Avenue, Father Gerald Martin, Kagiso 2, Mogale City, South Africa, 1754;
“Kagiso Online System” means equipment operated together as a system by Kagiso Online to provide its Service(s) and services ancillary to such Service(s),;
“Kagiso Online Website” means the Internet website published at the URL https://Kagisoonline.co.za, https://www.Kagisoonline.africa, or another URL that Kagiso Online notifies the Customer of from time to time;
“Fees” means the fees applicable and charged by Kagiso Online for each of the Services, as disclosed on Kagiso Online’s Website and in writing, before the Customer subscribes or applies for such Service(s);
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents; “Malicious Code” means anything that contains any computer software routine or code intended to allow unauthorised access or use of a computer system by any party, disable, damage, erase, disrupt or impair the normal operation of a computer system, and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
“NCA” means the National Credit Act, 34 of 2005 of South Africa;
“Parties” means the Parties to these Standard Terms and Conditions and “Party” means any one of them as the context may indicate;
“Personal Information” means any information relating to an identifiable, living, natural person, and where applicable, an identifiable, existing juristic person including –
information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture language and birth of the person;
information relating to the education or the medical, financial, criminal or employment history of the person;
any identifying number, symbol, e-email address, physical address, telephone number, location information, online identifier or other particular assignment to the person;
the biometric information of the person;
the personal opinions, views or preferences of the person;
correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
the views or opinions of another individual about the person; and
the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
“Processing” means any operation or activity or set of operations, whether or not by electronic means, concerning personal information including –
the collection, receipt, recording, organisation, collection, storage, updating or modification, retrieval, alteration, consultation or use;
dissemination by means of transmission, distribution or making available in any other form; or
merging, linking, restriction, degradation, erasure or destruction of information.
“POPIA” means the Protection of Personal Information Act, no 4 of 2013 of South Africa.
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or Copyright Material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property. For the purposes of this definition, “Copyright Material” means any Material in which copyright subsists;
“RICA” means the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 of South Africa;
“Service(s)” means all the service(s) provided by Kagiso Online as specified on Kagiso Online’s Website;
“Signature Date” means the date of signature of this Agreement by the Party signing it last in time;
“Software” means any computer program or software installed or provided by Kagiso Online for the purposes of using the Services and any modifications, enhancements or upgrades thereto;
“South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to applicable codes of conduct, as may be promulgated or amended from time to time;
“Supplier” means a supplier of goods and / or services to Kagiso Online; and
“VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991 of South Africa.
The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.
A reference to any statutory enactment shall be construed as a reference to that enactment as at the signature date and as amended or substituted from time to time.
2. Application and Initiation of Services
By subscribing to or applying for the Services, the Customer hereby appoints Kagiso Online to provide the Service(s) to the Customer for the duration of this Agreement, which appointment Kagiso Online accepts, subject to the terms and conditions contained in this Agreement.
Each application for or subscription to a Service will constitute a separate contract between the Parties and Kagiso Online reserves the right to refuse to commence provision of a Service based on the Customer’s prior conduct.
If required by Kagiso Online , your application for a Service may be subject to a credit referencing or risk assessment process. You agree that Kagiso Online may request and receive your confidential, credit and prescribed information (as defined in the NCA) (“Assessment Information”) from registered credit bureau in order to perform a financial means test to determine whether you will be in a position to meet your obligations under the intended agreement. Kagiso Online is entitled to perform a financial means test each time you apply for a Service. No agreement shall come into effect in the event of a negative credit reference or risk assessment, unless at the discretion of Kagiso Online to waive this clause. Kagiso Online may choose to waive this clause on a case by case basis and any such waiver shall not constitute a permanent or overall waiver of this clause for all Services. In this regard you consent to Kagiso Online requesting, receiving and reporting your Assessment Information from and to registered credit bureau in accordance with the provisions and for the purposes of the NCA; and the sharing of such information by registered credit bureau and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
Depending upon the Service provided, Kagiso Online may be obliged under RICA to obtain certain information and documents from the Customer, and Kagiso Online may withhold or suspend providing Services until the Customer has provided the necessary information and/or documents to Kagiso Online .
If the Customer is a juristic person, Kagiso Online may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, Kagiso Online may withhold providing the Services until the surety has been signed.
If the Customer has not complied with a requirement of this clause, Kagiso Online may delay providing the Goods or Services until the Customer has complied. If the Customer does not comply within a reasonable period, Kagiso Online may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result.
Kagiso Online cannot guarantee the provision of the requested Service upon the receipt of an application. Provision of the Service is subject to Kagiso Online confirming that it is technically feasible to do so. Applicants will be formally notified after receipt of an application whether or not the Service can be provided.
3. Commencement and Termination
This Agreement shall be effective from the date on which you register for any Services with Kagiso Online.
Subject to the Service terms, this Agreement shall continue in effect on a month to month basis and either Party shall have the right to terminate this Agreement upon providing the other Party with at least one calendar month notice.
The Customer acknowledges that Kagiso Online may:
terminate this Agreement by written notice, including email, and without liability in the event of the termination of its agreement with a Supplier relevant to the provision of any Service; or suspend or terminate the Services of a Customer in its absolute discretion and without notice:
if the Customer commits a serious or repeated breach of the Agreement (and in particular any provision of the Acceptable Use Policy) or the Customer engages in any conduct which in Kagiso Online’s opinion would have a negative impact on Kagiso Online, other customers of Kagiso Online or Kagiso Online’s staff or is detrimental to the welfare, good order or character of Kagiso Online;
any part of the Customer’s Fees are not paid in full when due;
the information the Customer supplied to Kagiso Online is found to be incorrect or false; or
Kagiso Online reasonably thinks that the Customer’s use of the Services may result in the commission of a crime or is otherwise unlawful.
Upon such suspension or termination, the Customer:
may not resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Kagiso Online, its servants, its agents or any other persons for whom it may be liable in law;
will not be eligible for re-imbursement of any the Fees paid in advance for the Services, if applicable;
may be barred from subscribing to any services with Kagiso Online in the future;
may be listed with applicable authorities and credit bureaus.
Kagiso Online may in its sole discretion determine the period of suspension it may deem necessary in consideration of the particular circumstances that gave rise to the suspension.
4. Services and Changes to Services
Kagiso Online offer various Services and may provide recommendations to customers, based on the information provided by such customers. Kagiso Online provides Services on the basis of information provided by the Customer, and Kagiso Online offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Customer. The Customer is solely responsible for ensuring that their choice of Services provided by Kagiso Online to their requirements or desired outcome. Kagiso Online will not be liable for compensation, costs or damages resulting from incorrect selection of Services, or resultant delays in rectifying such errors.
While every effort is made by Kagiso Online and its Suppliers to ensure that all Services retain a constant uptime (99.9% on a yearly basis and 99% on a monthly basis) and high level of service quality given the nature of the Services, technology, infrastructure and number of Suppliers involved in the provision of such Services this is not always achievable. As such all Services unless otherwise agreed to in writing are based on the best effort premise where no guarantees on throughput, latency or uptime can be provided. If in the instance that Kagiso Online cannot meet such standard of service quality its liability shall be limited to three months of your base hosting fee for the service affected.
To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against Kagiso Online, is to require Kagiso Online to remedy the defect in the quality of the Services performed.
Kagiso Online reserves the right to stop offering particular Services if it deems it necessary. Kagiso Online will then either provide the service for the remainder of the time that has been paid for or refund the amount paid for that specific package.
5. Security
Kagiso Online will implement measures in line with Good Industry Practice to ensure the security of the Kagiso Online System and the physical security of Kagiso Online’s premises, but gives no warranty that breaches of security will not take place. If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify Kagiso Online in an appropriate way that does not further compromise security concerns. The Customer must not do anything that may prejudice the security of the Kagiso Online System, and must take all reasonable measures necessary to ensure that: no unlawful access is gained to Kagiso Online’s premises, the Kagiso Online System, or the Customer’s own system;
no Malicious Code is introduced into the Kagiso Online System; and the Customer Data is safeguarded.
If a security violation occurs, or Kagiso Online is of the view that a security violation is imminent, Kagiso Online may take whatever steps it considers necessary to maintain the proper functioning of the Kagiso Online System including without limitation: changing the Customer’s access codes and passwords (or those of any user of the Kagiso Online System), and preventing access to the Kagiso Online System.
Kagiso Online takes reasonable measures to provide disaster recovery; but does not warrant that recovery will be successful or that it will be completed within any time limit. The Customer must give its full cooperation to Kagiso Online in any investigation that may be carried out by Kagiso Online regarding a security violation.
If the Customer is providing any Service to third parties that makes use of the Kagiso Online System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 5.
6. Customer Duties
Customer is prohibited from selling, reselling or otherwise dealing with the Services(s) which are proprietary to Kagiso Online in any manner whatsoever without its consent. Without limitation to the aforegoing, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to Kagiso Online unless the Customer is duly authorized to resell such Service(s).
The Customer is prohibited from allowing any person, other than its employees or other authorised parties, to have access to the Service(s).
The Customer shall only use the Service in compliance with South African Laws, the terms and conditions of this Agreement and Kagiso Online’s Policies, as published on Kagiso Online’s Website. The Customer acknowledges that Kagiso Online has no obligation to assist the Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
Where any Service is provided to the Customer with a predefined maximum allowable amount of resources, which includes, but is not limited to: bandwidth, traffic usage, data, memory, data storage, CPU or data cap (“Resource Allocation”) during a predefined period or term as applicable to the particular Service, such Resource Allocation may not be exceeded. In the event of such Data Allocation being exceeded by you, Kagiso Online shall charge you for such overage as applicable to the particular Service and at the prevailing overage rate for that Service. Alternatively, Kagiso Online may elect to deduct the amount exceeding the original Resource Allocation from the following Resource Allocation as applicable to the specific Service.
In case of any dispute that arises, it remains the customer’s duty to reach out to Kagiso Online by means of the available communication channels albeit phone, online chat or email in order for Kagiso Online to mitigate and resolve dispute.
7. Fees, Charges and Payment
Subscription options: With reference to the applicable Service, Kagiso Online offers the following subscriptions options:
Monthly: Fees will be due monthly in advance and should be paid on or before the invoice due date. Subject to the provision of the Agreement, the Customer must give one calendar month’s written notice to Kagiso Online in order to cancel this subscription.
Quarterly: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further quarterly renewal period(s), unless the cancelled by Customer with at least one calendar month’s written notice to Kagiso Online, before the expiry of the applicable quarterly period.
Bi-annually: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further bi-annual renewal period(s), unless the cancelled by Customer with at least one calendar month’s written notice to Kagiso Online, before the expiry of the applicable bi-annual period.
Annual: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further annual renewal period(s), unless cancelled by Customer with at least one calendar month’s written notice to Kagiso Online, before the expiry of the applicable annual period.
Usage Fees, if applicable, shall be billed in arrears.
Billing process:
Billing will commence on the date that Service provision commences. Partial months will be charged pro rata;
Services are billed in advance and all invoices must be paid by the Customer in advance;
Any Services invoiced in arrears are payable on presentation of invoice;
All Fees and other amounts payable are quoted inclusive of VAT unless indicated otherwise;
All Fees shall be paid by debit order or credit card payments. Kagiso Online shall only accept payment for bi-annual, tri-annual or annual payments by way of electronic funds transfer in exceptional circumstances and on only by prior arrangement at Kagiso Online’s discretion; and
All payments shall be without deduction and free of exchange or set-off.
Consequences of late or non-payment:
If any Fees remains unpaid by the Customer beyond the due date of payment:
the interest rate will be charged at 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month in accordance with the maximum interest rate allowed in terms of the NCA for incidental credit agreements;
the prime overdraft rate will be determined by Kagiso Online’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove;
interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears;
In the event of a debit order being returned by your bank, Kagiso Online shall charge a debit order return fee of the greater of 5% of the attempted debit order amount or R50.00 (or the customer billing currency equivalent thereof); and
if the non-payment pass fourteen days from the due date, a letter of demand may be sent to you. If payment is not received after twenty business days from the date of notice, your default will be listed on a registered credit bureau database, which will affect your credit rating.
The customers hosted data is at risk of being irrecoverably removed from our infrastructure and there is no guarantee that this data can be recovered at a later date. Kagiso Online retains the right to suspend any and all its Services for non-payment (which may not be limited to the particular Service in question), and to withhold such Services until all arrears are settled in full on any and all products and Services.
Suspension occurs after the company have made reasonable efforts to notify customers in advance of such suspension. While Services are in a suspended state you will have no access to the Services, but will continue to be liable for the full cost associated with the Service(s) and no refunds or pro-rata of any kind will be provided to you for the period in which the Service was suspended. The company is not liable for any resulting losses due to non-payment-related service suspension.
If the Customer’s Service(s) are suspended or terminated for non-payment (or any other breach of this Agreement), Kagiso Online may charge a reconnection fee for subsequent reactivation of Services. Reconnection Fees are payable in full before any services can be reactivated. Kagiso Online may charge multiple reconnections Fees where multiple Service(s) are affected, and may charge “escalating” penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice Kagiso Online’s right to enforce such penalties in full at any time (within their discretion). Reconnection of Services may be subject to a waiting period of up to 72 hours, at Kagiso Online’s discretion, regardless of when payment is received or cleared.
Billing disputes:
In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time to prevent interruption of services while the billing is in dispute. All invoices shall be sent to Customers by way of e-mail and the Customer is responsible to keep Kagiso Online informed of all changes to such e-mail addresses.
All billing complaints must be directed to Kagiso Online in writing (billing@Kagiso Online.com) and must be accompanied by a copy of the bill concerned or the particulars thereof, e.g. username or invoice number, the reason for the dispute; the amount in dispute; and supporting information or documentation, if any.
Kagiso Online will reach a determination regarding the billing complaint and communicate its decision to you within fourteen (14) working days of receipt of the complaint.
Reparations will be made to Customers with successful disputes by means of an account credit or refund, at Kagiso Online’s discretion.
Amendment of Fees:
Kagiso Online reserves its rights to change its prices at any time on reasonable notice, which will not be less than thirty days.
8. Intellectual Property Rights and Infringements
All Intellectual Property rights in and to Kagiso Online’s Software, Systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement shall belong to Kagiso Online. In addition, all intellectual property rights in and to Suppliers’ software, systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement and licensed to Kagiso Online shall be made available to Customers in the sole discretion of Kagiso Online and subject to Kagiso Online’s agreement with such Suppliers. The Customer undertakes that it shall at no time, have any right, title or interest in the Intellectual Property of Kagiso Online or the applicable Suppliers and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the software systems, procedures and policies owned by Kagiso Online, or any of its Suppliers.
The Customer agrees to only make use of properly licensed third party software in connection with its use of the Services and agrees to indemnify and hold Kagiso Online and any of its members, representatives, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any third party claims relating to its involvement in any copyright infringement or alleged copyright infringement.
The Customer warrants that it shall not use the Service(s) to produce, host or present any content in contravention of any person’s Intellectual Property rights, and in particular warrants that it shall recognise, acknowledge and use any content in accordance with any third party’s Intellectual Property rights. The Customer furthermore warrants that it has received all necessary permissions to make use of any Intellectual Property relating to third parties.
Any specifications, descriptive matter, drawings and other documents which may be furnished by Kagiso Online to the Customer from time to time:
do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement; and
shall remain the property of Kagiso Online and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer. All copyright in such documents vests in Kagiso Online and such documents shall be returned on demand.
9. Protection of Personal Information
A Party (“Operator”) shall at all times treat and hold all Personal Information it receives and processes from the other Party (“the Responsible Party”) as confidential and must not disclose it unless required by law or in the course of the proper performance of their duties and may only process such information with the knowledge or authorisation of the Responsible Party.
The Operator undertakes that it will endeavour to:
in order to protect the proprietary interests of the Responsible Party in and to its Confidential Information and Personal Information the Operator will not at any time, whether during the currency of this Agreement or at any time thereafter, either use any Confidential Information or Personal Information of the Responsible Party or directly or indirectly divulge or disclose any Confidential Information or Personal Information of the Responsible Party to third parties; and upon termination, cancellation or expiry of this Agreement the Operator will deliver to the Responsible Party, or at the Responsible Party’s option, destroy all originals and copies of Confidential Information in its possession.
The aforegoing obligations will not apply to any information which – is lawfully in the public domain at the time of disclosure to the Operator;
subsequently becomes lawfully part of the public domain by publication or otherwise; subsequently becomes available to the Operator from a source other than the Responsible Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information or Personal Information to the Operator; or is disclosed pursuant to requirement or request by operation of law, regulation of court order; is required to be processed or retained in terms of any legal obligation or law.
The Customer consents and agrees as part of the conclusion and performance of contract to Kagiso Online Processing Personal Information transmitted to Kagiso Online’s System in a way which is consistent with the Service being provided. Where the Customer’s use of the Service(s) leads to the transmission of Processing of Personal Information, which includes personal information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted.
The Customer warrants that it has obtained the consent of any third party for the use and Processing of that party’s Personal Information in this way, or otherwise that such Processing is lawful, and indemnifies Kagiso Online from any claim brought by such third party as a result of its failure to do so.
Kagiso Online will use reasonable endeavours to ensure the safekeeping of any Personal Information or content which may be uploaded to the Kagiso Online servers from time to time, such as and without being limited to, photographs, websites, videos and e-mail messages (hereinafter collectively referred to as “your data”).
However, Kagiso Online does not provide any guarantees against data loss, and as such you agree to retain your own backups of your Personal Information and indemnify and hold harmless Kagiso Online from any claims as a result of your Personal Information being lost for whatsoever reason.
Kagiso Online shall immediately delete all of your Personal Information from the Kagiso Online servers upon termination of the Service or termination of this Agreement. It is thus your responsibility to ensure that you have made local copies of all of your Personal Information prior to the termination of the Service. Kagiso Online shall not retain backups of any kind once the Service is terminated.
10. Representations and Warranties
Kagiso Online warrants and represents that:
it has the capacity and authority to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
it is the owner of or has the right to use any intellectual property employed by it during or as part of the Service(s);
the Services shall be performed in compliance with South African Law, including the provisions of POPIA and the conditions for lawful processing of Personal Information; the Services shall be provided in accordance with the provisions of this Agreement;
the Services will be performed in a professional manner and that it is and/or it shall use personnel that is suitably qualified and has sufficient knowledge, expertise and competence to perform the Service(s), in accordance with the standard of its industry.
Save as expressly set out in clauses 1, Kagiso Online does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service(s) and all warranties which are implied or residual at common law are hereby expressly excluded.
Kagiso Online does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service(s):
will be preserved or sustained in its entirety;
will be delivered to any or all of the intended recipients; or
will be suitable for any purpose;
will be free of inaccuracies or defects or bugs or viruses of any kind; or
will be secured against intrusion by unauthorised third parties; and Kagiso Online assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 10.
11. Customer Warranties
In addition to and without limiting any Customer warranty under this Agreement, the Customer undertakes and represents that:
it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and
the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in any violation or breach of, any contract to which Customer is a party.
12. Force Majeure
Kagiso Online shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of Kagiso Online . It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of Kagiso Online :
a Supplier’s fault of interruption that affects the Service(s); the non-performance, inability to perform or delay in performance by the upstream provider relating to the provisioning of equipment, services and/or facilities to Kagiso Online that affects the Service(s); acts or omissions of any government, government agency, provincial or local authority (including disruption or suspension of the provision of municipal services) or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm, fire or any other event classifiable as an “act of god”; all telecommunications infrastructure and communication line faults; failure or unreasonable delay by the Customer to report faults/problems to Kagiso Online ; and/or the failure of any hardware, software programme, applications(s) or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service(s).
13. Limitation of Liability and Indemnity
Kagiso Online shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where Kagiso Online’s negligence, failure, delay or inability to perform any of the Service(s), any defect or failure in the Equipment, or due to the occurrence of any of the following events: the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement, including non-payment of fees; circumstances that constitute an event of force majeure as contemplated in clause 12 hereof; compliance by Kagiso Online with any applicable national and international legislation and laws; any alteration to the Software and Equipment by the Customer; and/or any defect and/or hazard in any third party equipment required by the Customer to be used in the provision of the Services.
The Customer shall indemnify and hold Kagiso Online and any of its members, representatives, officers or employees as well as any third parties whose networks are connected to the Kagiso Online System, harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 13 In the event that Kagiso Online is nonetheless held liable, the quantum of Kagiso Online ’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss, in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of Kagiso Online or any other cause.
From time to time, Kagiso Online may deem it necessary to conduct maintenance, repair and/or improvement work on its technical infrastructure by means of which the Services are provided and in order to perform these activities, Kagiso Online may have to suspend the Services. Kagiso Online undertakes to provided reasonable notice to the Customer by way of a notice on its website and the Customer agrees that all liability on the part of Kagiso Online of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
Use of the Services indicates that the Customer indemnifies and holds harmless Kagiso Online in respect of any damages, loss or costs or claims instituted against Kagiso Online arising from any application or subscription to or use of any Service or breach of the Agreement.
Nothing contained in this clause 13 will limit the Customer’s liability in respect of charges incurred for ongoing Services.
If the CPA is applicable to this Agreement, and any provision of this clause 13 is found by a court or tribunal with jurisdiction over Kagiso Online to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 13 will have full force and effect.
In the case of ambiguity, this clause 13 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
14. Breach
In the event of any breach by the Customer of the terms and conditions outlined in this Agreement, excluding cases of non-payment of due and payable amounts, Kagiso Online reserves the right to enforce the following actions without prejudice to any other rights or claims Kagiso Online may have:
If the Customer breaches any terms or conditions of this Agreement and fails to rectify the breach within 14 (fourteen) days of receiving notice from Kagiso Online;
If the Customer seeks to enter into a compromise, scheme of arrangement, or composition with its creditors;
If any judgment against the Customer remains unsettled for more than 10 (ten) days without immediate steps being taken to have it rescinded and the application for rescission successfully prosecuted to its final conclusion;
If the Customer commits any act of insolvency, is placed in liquidation or judicial management (whether provisionally or finally), or if the Customer is an individual and their estate is sequestrated or voluntarily surrendered;
If the Customer disposes of a significant portion of its undertaking or assets; or
If the Customer fails to make a payment on the due date for such payment;
In any of the above scenarios, Kagiso Online is entitled to, upon providing written notice to the Customer, take the following actions without incurring any liability or obligation:
Suspend, discontinue, or terminate all Services until the non-payment or breach is remedied to Kagiso Online’s satisfaction;
Consider all outstanding amounts, which would otherwise become due and payable over the unexpired period of the Agreement, as immediately due and payable. Kagiso Online may also claim such amounts, as well as any other amounts in arrears, including interest. Kagiso Online reserves the right to cease the performance of its obligations under this Agreement and any other contract with the Customer until the breach is remedied;
Collect and retrieve all Equipment. The Customer is required to inform Kagiso Online of the location of such equipment and allow unfettered access for its collection; Cancel or terminate this Agreement.
The Customer shall be liable for all costs incurred by Kagiso Online in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own customer scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
15. Dispute Resolution
Any dispute which arises relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to the chief operating officers of Kagiso Online and the Customer or alternates appointed by them, who will use their best efforts to resolve the dispute within five (5) business days of the dispute having been referred to them.
16. Notices and Domicilia
All request by the Customer for amendment or termination of the Services or change of any of the business or personal information of the Customer must be made in writing in accordance with this clause 16. Any notice required to be given in terms of this Agreement shall be valid and effective only if in writing, which shall include electronic communications.
The Parties select their addresses, where they will accept service of any notice or documents for all purposes as their respective domicilia citandi et executandi the physical addresses appearing therein, as follows: Kagiso Online: as disclosed on its website; and Customer: the latest contact details disclosed and recorded by Kagiso Online, provided that it is the responsibility of the Customer to inform Kagiso Online of any changes to such contact details.
The Parties shall be entitled from time to time by written notice to the other, to vary its contact details, which change will take effect on the date on which the notice is deemed to be received by the other party in terms of clause 4 below.
Any notice given by one party to another party (the “addressee”) which: is delivered by hand during normal business hours at the addressee’s physical address shall be deemed to have been received by the addressee at the time of delivery; is given by fax shall be deemed to have been received by the addressee on the first business day following the day of successful transmission of the fax; is given by pre-paid registered post shall be deemed to have been received by the addressee on the tenth business day following the day of posting; or is given by electronic mail shall be deemed to have been received by the addressee on the second business day following the day of successful transmission of the electronic mail. Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 4.
17. Application of the Consumer Protection Act
A transaction (as defined in the CPA) between you and Kagiso Online may or may not fall under the provisions of the CPA depending upon whether certain values set out in clause 17.2 in respect of the Customer (“Threshold Values”) are below a certain value at the time the transaction is entered into.
The Threshold Values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
Kagiso Online ‘s duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and Kagiso Online will act upon the information given to it by the Customer in this regard. Consequently: the Customer warrants that any statement made to Kagiso Online in respect of its Threshold Values is accurate; if the Customer claims that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, Kagiso Online may at its instance require the Customer to provide it with financial statements as proof thereof; and if the Customer misstates the Threshold Values in such a way that Kagiso Online considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by Kagiso Online resulting from such misstatement.
18. General
This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
Kagiso Online may amend the provisions of this Agreement at any time. The amended Agreement will be posted on Kagiso Online ’s website (https://Kagiso Online.co.za, https://www.kagisoonline.africa) and Kagiso Online will make all reasonable efforts to advice the Customer of the changes. The Customer also had a duty to keep itself informed of the latest version of the Agreement by accessing Kagiso Online ’s website on a regular basis. Amendments will become effective 30 (thirty) days after the new version has been published on Kagiso Online ’s website. If a Customer wish to object to any of the amendments, it may terminate the Agreement and the termination will be effective one month after receipt by Kagiso Online of the written notice of termination, where after all Service(s) will be discontinued by Kagiso Online . The Customer may not make any amendments to the Agreement.
No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be 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.
No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as 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 that the clauses themselves do not expressly provide for this.
Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by the Customer (including, but not limited to sub-letting or re-selling of any disk space, server capacity or web hosting) without the prior signed written consent of Kagiso Online . In the event of any change in the controlling interest of the Customer, the Customer shall give written notice of such event and Kagiso Online reserves the right to terminate the Agreement on written notice to the Customer. Kagiso Online shall be entitled to cede, delegate, assign or otherwise transfer any of its right and obligations hereunder to a third party.
This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law. The Customer irrevocably consent to the jurisdiction of the Magistrate Courts in accordance with the Magistrates Court Act 32 of 1944, provided that Kagiso Online may institute legal proceedings in the High Court of South Africa.
The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under this Agreement should they prove not to be so authorised.
Specific terms and conditions
1. Definitions and Interpretation
These specific terms and conditions are read in conjunction with Kagiso Online’s general terms and conditions. Unless otherwise indicated, all the definitions contained have the same meaning as those set out in the general terms and conditions.
2. Hosting Services
Shared Hosting
Kagiso Online ’s shared hosting platform is intended for hosting a website with relevant content and function for a personal or small to medium size 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.
To ensure the integrity of the network and to offer Customers fair and equal usage across the board, Kagiso Online reserves the right to:-
suspend or deactivate a service, or;
upgrade a Customer’s shared hosting package on the Customer’s behalf should the Customer’s package be causing degradation of a shared hosting environment which adversely affects other Customers. Reasonable notice will be given to the Customer in the form of electronic mail or by way of other communication methods before any upgrade is actioned.
Kagiso Online may, at times with reasonable notice to Customers, revise or amend its current Shared and Dedicated Hosting offerings relating to price, features, traffic allocations and disk sizes.
The Customer is responsible to advise Kagiso Online in writing of its representatives who are entitled to access the server, used for the Hosting Services. Kagiso Online shall use all reasonable steps to verify the identity of the representative that wishes to access the server, but will not be liable for any loss or damage that you may suffer due to a non-authorised person gaining access to the server.
Kagiso Online shall not be liable or responsible for the backing up, restoration or loss of Data under any circumstances. Customers are solely responsible for ensuring their Data is regularly backed up and for restoring such backups in the event of data loss or corruption.
Disk space on shared hosting may only be used for Website Content, emails and related system files. General data storage, archiving or file sharing of documents, files or media not directly related to the website content is strictly prohibited. Unauthorised storage or distribution of copyrighted materials is prohibited, via FTP hosts or any other means.
For shared hosting, Kagiso Online will implement security updates, software patches and other updates or upgrades from time to time, to maintain the best performance, at Kagiso Online’s sole discretion. Kagiso Online is under no obligation to effect such upgrades, or to rectify any impact such changes could potentially have to shared hosting customers.
Dedicated, Cloud and VPS Hosting
Kagiso Online shall make a server available to the Customer for its exclusive use. The server will at all times remain Kagiso Online’s property, unless it is purchased outright by the Customer. Kagiso Online will setup and manage the server on your behalf.
All Server log files remain Kagiso Online ’s property, but we will make a copy available to the Customer on request.
The Customer is not allowed to remove the service from the location where Kagiso Online has installed it, except with the advance written approval of Kagiso Online
Kagiso Online shall manage the server, including the hardware, software, and upgrades at its sole discretion.
If the server becomes the target or source of any form of denial of service attack and Kagiso Online believes that there is no other possible solution at that point in time, we may disconnect the Server, and it’s assigned IP address, from the network.
Kagiso Online shall not be responsible for the Customer’s software, installed by the Customer that you may install (and any vulnerabilities that may result from the use of the software).
Kagiso Online , expressly disclaims any direct, indirect, incidental, special, punitive, consequential losses or damages, of whatever nature including which arise or may arise from (a) the Service or the hosting of any content, application and/or data of whatever nature (b) maintenance and/or upgrades (c) installation and/or use of any customer software or other software on the Customer’s website and/or database. The Customer indemnifies Kagiso Online against all loss, damages, claims and liabilities of whatsoever nature as a result of any claim instituted by a third party.
Kagiso Online does not allow the following services to run on it’s infrastructure: Gaming servers, none-compliant financial offerings or investment schemes. Should it be found that a client’s service hosts any of the aforementioned: Kagiso Online reserves the right to terminate the service immediately.
Kagiso Online endeavours to replace or repair failed hardware within 24 hours from a hardware failure notification.
Cryptocurrency mining is strictly prohibited on Kagiso Online servers. This includes coins/tokens using Proof of Space and Time/Proof of Storage.
Kagiso Online reserves the right to immediately limit the CPU power of any VPS or Cloud Server that displays extensive CPU usage over a considerable amount of time. The limitation will be lifted when either the VPS/Cloud Server is upgraded or the CPU usage is lowered.
Managed Hosting (Addon to Hosting Services)
Managed Hosting is an extension of services where Kagiso Online agrees to help customers to manage their ordered HOSTING service. Services will be offered as per description on Kagiso Online’s website(s).
Server Security:
Kagiso Online will ensure server security at root level
The customer will be responsible for account level security
Management consists of the following services:
Daily scheduled backups with 9 days retention policy (Acronis)
24×7 Monitoring of server (this does not include any application Monitoring)
Managed Operating System (OS) Updates
Firewall management
Endpoint Security Optional Paid for Feature
Day-to-day management assistance up to 4 hours per month (on Request)
4 hours system administration per month (on Request)
Management of security on ‘root’ level. Kagiso Online explicitly does not manage security on user level nor it manages customers applications.
Kagiso Online will define scheduled maintenance windows in order to perform the above tasks. We will not manage or be responsible for any third party application installed on the server. Kagiso Online cannot be held responsible if there is any incompatibility between our Systems and any other third party application used or installed by the customer. We will manage the Server, including the hardware, software, and upgrades at our sole discretion.
3. Domain Names
Domain Registration
Kagiso Online is accredited as an independent Registrar to register Domain Names on the .co.za, net.za, org.za or web.za; .durban, .capetown, .joburg, and the range of .ke and .ng Domain Name spaces. These domain names spaces are managed and administered by various Administrators and therefore registration of Domain Names on these Domain Name spaces are subject to the administrator policies, which may be amended from time to time.
Kagiso Online utilises the services of Diamatrix, Resellerclub, NameSilo and other various registrars to register all international domain names subject to the terms and conditions of these various registrars, as amended from time to time;
The registration, maintenance, or, transfer of a Domain Name is subject to the terms and conditions of these Administrators and Registrars which allocate and govern these Domain Names. The Registrars may change or be replaced from time to time; and Kagiso Online may change its registration provider from time to time.
All Administrators and Registrars’ terms and conditions are binding upon the Customer by reason of Customer’s acceptance of these terms and conditions.
The following principles apply with regard to Domain Name registrations:
Domains Names are made available on a “first come, first served” basis. Kagiso Online cannot guarantee that the Domain Name requested by you is available for registration;
Kagiso Online does not permit “cybersquatting” (also known as “domain squatting”): registering a Domain Name in bad faith with the intention of profiting from the goodwill of a trademark belonging to someone else;
By registering a Domain Name, the Customer will obtain the right of usage to the domain name. Continued usage of the Domain Name depends on the Administrator’s policies and the continued payment of the applicable registration fees.
Kagiso Online will maintain the Domain Name for you as part of the Service insert our details as the billing and technical contact of the Domain Name, unless you register the Domain Name yourself or manage the Domain Name record directly with the applicable Registry. If we provide the administrative services, you will continue to retain control of your Domain Name.
Any Internet Protocol (IP) address that Kagiso Online allocates to you will remain our sole property. We give you a non-exclusive, non-transferable license to use the IP address for the duration of our agreement with you.
All new co.za registrations are allowed a grace period of seven consecutive days immediately following the registration of the Domain Name, during which you can cancel your Domain Name registration with minimal cost implications. If you cancel your Domain Name registration during a grace period, it will be assigned a ‘pending release’ status and will not become available for release until the seven day grace period expires. You will be charged a grace period administration Fee of R5 (excluding VAT) for co.za domains and R10 (excluding VAT) for all other domains. Once the grace period has expired, the Domain Name will be released and removed from the Registry database, making it available for anyone else to register. You will receive a refund of the registration fee minus the grace period fee. You will not be able to transfer the Domain Name to another Registrar during the grace period.
Domain Names are registered for one year, which registration may be renewed. It is your responsibility to ensure that your Domain Name does not lapse.
In order to complete the registration on your behalf, we will request you to provide your business or personal information. Kagiso Online will not be held responsible if you provide incomplete or inaccurate information that will lead to a delay in the registration process, subsequently resulting in the Domain Name being registered by someone else.
You warrant that:
you are entitled to register and use the Domain Name; or
you have the consent of the Registrant to use the Domain Name if you are not the owner; or
you are not prohibited by law or otherwise from registering the Domain Name; and
in using the Domain Name, you have not violated any Intellectual Property Rights of any person who may lawfully claim title to the Domain Name or to any word or name forming an essential part of the Domain Name.
Fees
The following fees will be charged by Kagiso Online:
the annual Administrator Fee for the Domain Name;
our Service fee for applying for, and where applicable, maintaining the registration of a Domain Name on your behalf; and
all expenses or charges relating to the registration, transfer, renewal or redemption of the Domain Name.
Changes to Domain Name and Domain Name Information
It is not possible for Kagiso Online to amend the actual Domain Name itself. If there has been an error in the spelling of a Domain Name it will need to be cancelled and a new registration created. Unless you request the change within the seven day grace period, you will be required to pay a fee to the registrar.
The Customer (as the “Registrant”) or its agent can change Registrant information (for example the Registrant’s name, email address, telephone number and physical address).
Disputes
Various alternate dispute resolution mechanisms apply for Domain Names registered globally and includes:
the Uniform Dispute Resolution Policy adopted by ICANN for certain gTLDs;
the Alternate Dispute Resolution Regulations in terms of the Electronic Communications and Transactions Act, 2002, applicable in South Africa; and
similar proceedings in other ccTLDs.
Disputes between you and any third party about registration or use of any Domain Name registration may be brought under any available alternate dispute resolution mechanisms, court, or arbitration tribunal.
We will not participate in any way in a dispute between you and a third party. If you involve us in any dispute, you indemnify us against any loss or damage that we may suffer or expense that we may incur (including legal costs we incur on the attorney and own client scale and you will be liable to pay our attorney’s fees).
Note that the Domain Name will be ‘”frozen” until a hearing or adjudication on the matter has been finalised. Locked Domain Names, although not removed from the zone file, will not be able to be updated, cancelled, re-instated or released until they are unlocked.
Domain Name Transfers to another Registrar
You are able to transfer your Domain Name to another Registrar at any time other than during the grace period. In such a case no refund is given.
If you want to do so, a specific process has to be followed. This process has been laid down by the Administrator in the Administrator Policies.
Domain Name Renewals
Please note that we do not auto-renew domains unless:
we have been instructed to do so by yourself
you have set it by yourself in our customer portal – How to enable auto-renew on a domain name
We will give you a renewal reminder by email prior to the renewal date of your Domain Name upon which you either need to:
confirm renewal upon which renewal instructions will follow or
confirm cancellation upon which cancellation instructions will follow
If you do not give the required notice, we will NOT renew the Domain Name, the domain will expire and you will lose access to the domain name
Should you then wish to recover the domain name after expiry, there would be either redemption or recovery charges payable or domain would not be able to be recovered
Payment Default of the Domain Services
If you fail to pay us any cost or charge relating to the registration, renewal, update, change, or administration of any Domain Name, we may:
exercise a lien (right to withhold) over the Domain Name until the relevant cost or charge has been paid;
obtain or allow the suspension, termination, or deletion of the Domain Name; or
transfer the Domain Name to another Registrant.
Termination of the Domain Services
If the Domain Service is terminated for any reason, we may, without incurring any liability, notify the relevant Registrar or Registry of the termination and instruct the Registrar or Registry to remove us or any of our systems as the host of the Domain Name even if no replacement is available.
If any of the Administrators, Registrars or Registries amend, suspend or terminate its provision of a Domain Service or any other aspect of its services upon which we depend for the provision of the Domain Service to you, we will try to ensure the continuance of the Domain Service. If we are unable to ensure the continuance under any circumstances, we will not be liable to you or any other third party for any loss or damages (as contemplated in our Hosting Terms) you or any third party may suffer arising from, or in any way relating to, the termination of the Domain Services.
Payment Default of the Domain Services
Visit ICANN for more information about Registrant Education
Visit ICANN for more information about Domain Name Registrant Rights.
Premium Domains
Definition of Premium Domains: Certain domain names are categorized as “premium” due to their short length, common words, or other factors that make them especially desirable. Premium domains are typically priced higher than standard domains.
Pricing Accuracy: While we strive to provide accurate pricing information for all domains listed on our platform, there may be instances where premium domains are inadvertently listed at standard domain prices. We make every effort to promptly update and correct these discrepancies when identified.
Order Review & Correction: In the event that a premium domain is ordered at a standard domain price, we reserve the right to review and correct the order. The customer will be promptly notified of the discrepancy, and the following actions may be taken:
Offer the premium domain to the customer at the corrected premium price.
Cancel the order and provide a full refund to the customer for any amounts already paid.
Customer Obligation: Customers are encouraged to independently verify the pricing of premium domains prior to completing a purchase. By placing an order, the customer acknowledges and agrees to the terms set forth in this Premium Domain Pricing Clause.
Domain Warranty
The purpose of this Warranty product is to avoid the involuntary expiry and blocking of a Service that has expired and for which the Customer has not been able to pay the renewal fees. If a Domain protected by Renewal Warranty is not renewed seven (7) days after its expiry (manually or automatically), Kagiso Online will automatically renew it for a renewal period of three (3) months, and will ensure a period of good functioning for this period. After the domain renewal, the Customer has ninety (90) additional days from domain renewal to pay the domain and warranty renewal invoice and reactivate the Service. At the end of this additional period and in the event of non-payment, the Service will be terminated by operation of law with all the consequences relating to the data it contained. It should be noted that in the case of renewal by Kagiso Online, two invoices will be due – that of the domain renewal as well as insurance renewal for another period of 12 months as in the case of domains.
This Option allows Kagiso Online to notify the Customer that a Service has expired and that an invoice must be paid as soon as possible by the Customer in order to avoid the permanent loss of the Service concerned. Thus, Kagiso Online will try, without obligation, to inform the Customer by means of preferred contact email address.
In addition, the Customer agrees and acknowledges that the Option may be deactivated:
in the event of default on the Option;
at the end of the activity cycle of the Option and after the issue of an unpaid invoice issued when the Service is due;
in the event of a breach of any provision of this contract;
in the event of termination of the Service.
4. Colocation Hosting Services
General Provisions
Services Provided
Kagiso Online (Pty) Ltd (referred to as “the Company,” “we,” or “us”) offers colocation hosting services, which provide customers with rack space, power connections, and data connections for their servers and peripherals.
The Customer (referred to as “you” or “your”) is solely responsible for supplying their own servers, peripherals, and any associated equipment.
Responsibilities
You are solely responsible for the equipment you install in the rack. We are responsible for the physical location of the rack and the network connection only.
You are responsible for all bandwidth and traffic related to your hosting service and will be liable for all traffic charges. Usage can be monitored through our Control Panel, and we provide tools to assist you in monitoring traffic. However, real-time information may not be available, and we are not responsible for any loss or damage due to delayed information.
Network Security
If your server(s) or network components become the target or source of a denial of service attack, we may disconnect you from the network if no other solution is possible.
Power Usage and Infrastructure Upgrades
It is your responsibility to ensure that your peak power usage does not exceed 20A for a full rack or 10A for a half rack. We will monitor your usage, and you will be notified if you consistently exceed these thresholds. Failure to remedy this default within 14 days may be considered a breach of these terms.
In the event that you require additional power capacity beyond the standard thresholds mentioned in 1.4.1, you have the option to request a power infrastructure upgrade for an additional fee, as specified on our website. We will provide details regarding the upgrade process and associated costs.
This update clarifies that customers have the option to upgrade the power infrastructure for their colocation services, subject to additional fees as outlined on the company’s website.
Facility Operations
You are responsible for ensuring that your use of our services does not have a detrimental effect on our data center operations or the equipment of other colocation customers. This includes adhering to electrical compliance, heat distribution, cable management, access control, security policies, and removal of flammable materials.
We provide a resilient infrastructure, but we are not liable for any loss or damage resulting from any failures.
Health and Safety
You must adhere to standard health and safety guidelines when entering our location. Failure to comply may result in access denial.
Service Suspension
We may temporarily suspend colocation services for repair, maintenance, upgrades, modifications, replacements, improvements, or due to non-payment. In the case of non-payment, we will provide advance notice of any impending service suspension. We will make reasonable efforts to work with you to resolve outstanding payment issues.
We are not liable for any resulting loss or damage due to service suspension, including but not limited to loss of data, business interruption, or financial loss, as a result of non-payment.
This addition clarifies that services may also be suspended due to non-payment, and the company will make reasonable efforts to notify customers in advance of such suspension. It also specifies that the company is not liable for any resulting losses due to non-payment-related service suspension.
Termination
We may terminate colocation services upon providing 30 days’ written notice.
Either party may cancel the Agreement if the other party fails to comply with obligations, commits a breach, enters into liquidation, or fails to satisfy a judgment. This cancellation does not affect the right to claim damages for a breach.
Limitation of Liability
Neither party is responsible for indirect, incidental, special, or consequential damages or losses, including loss of profits, revenue, savings, business transactions, goodwill, or other contracts, whether due to negligence or breach of contract.
Our total liability to you for direct damages is limited to a maximum amount equal to three months of your base hosting fee.
Fees
Base Hosting Fee
You will pay us a base hosting fee for Colocation hosting, as indicated on our website.
Additional Fees
The base hosting fee does not include setup fees, fees relating to incremental bandwidth usage, fees for extra IP addresses, Cross Connects or some other additional Add-ons. These fees will be charged in addition to our standard rates, available on our website.
By using our Colocation Hosting services, you acknowledge that you have read, understood, and agreed to these Terms and Conditions. These terms are subject to change, and it is your responsibility to review them regularly. If you do not agree with these terms, please do not use our services.
5. Secure Sockets Layer (SSL) Certificate
Secure Sockets Layer (SSL) Certificate(s) is/are a third party application software that allows secure encrypted software communication between a web server and a browser vice versa.
Kagiso Online has the authority to resell SSL Certificate(s) as per the price, terms and conditions on its website which is subject to variation and/or change from time to time. The terms and conditions of the third party supplier of the SSL Certificate(s) will be applicable to the Customer.
If any third party supplier of SSL Certificate(s) suspends, terminates, or in any way interrupts the continued operation of such SSL Certificate(s), Kagiso Online will try to ensure the continuance of such third party application. If we are unable to ensure the continuance under any circumstances whatsoever, we will not be liable to you or any other third party for any loss or damages to you or any third party may suffer arising from, or in any way relating to, the suspension, termination and/or interruption thereof.
6. Microsoft, Acronis and other third party application software
Kagiso Online has the authority to resell third party products and services as per the price, terms and conditions on its websites which is subject to variation and/or change from time to time. The terms and conditions of the third party software providers will be applicable to the Customer.
Kagiso Online will endeavour to ensure the continuance of all software provider applications. If we are unable to ensure the continuance under any circumstances whatsoever, we will not be liable to you or any other third party for any loss or damages to you or any third party may suffer arising from, or in any way relating to, the suspension, termination and/or interruption thereof.
7. Fair Use Policy
In order to provide all Customers with proportionate and fair access to the network resources, Kagiso Online operates a fair use policy.
During high levels of usage, Kagiso Online ’s fair use policy will restrict the available connection speed of Customers identified as having made a disproportionate use of network resources.
Kagiso Online will monitor each Customer’s total download and upload volume throughout each month to identify those Customers with a disproportionate usage profile. Customer usage will be calculated on a monthly basis, as a result, Kagiso Online will reset the monitored volume to zero at the commencement of each month.
Kagiso Online’s fair use policy restricts only the speed of access, it does not limit the time connected to the internet through broadband or reduce the overall download and/or upload volume of any Customer or user.
Kagiso Online will not be liable to you or any other third party for any loss or damages to you or any third party may suffer arising from, or in any way relating to, the restriction of access of speed as a consequence of operating its fair use policy.
8. Refund policy
Money-back Guarantee
If you feel our services are not the right fit for you, we offer a refund on hosting fees if all the following conditions are met:
Refund request is submitted within 30 days of initial order,
Client had no services with us 12 months prior to the order that the refund request pertains to,
Refund is not requested for a non-refundable product/service.
Non-refundable products/services
No refunds will be given for any product/service we purchase from third-party suppliers where refunds are not possible. This includes:
Domains
In the case where a product is cancelled, a refund is requested and a domain name was included at not additional cost to the client (free) with the product. Kagiso Online will deduct the normal selling price of the domain from any refundable amounts due to the client. The domain remains the property of Kagiso Online until either
Sufficient hosting fees have been received over the course of the product, such that it will cover the normal selling price of the domain.
or
The customer pays the difference between the total hosting fees received, and the normal selling price of the domain.
SSL Certificates
All software licences including but not limited to Acronis™ backup licence, cPanel account licences, all Plesk licences, Windows Server Standard, Remote Desktop, MS SQL, MY SQL, MS Office.
Dedicated Servers, Cloud Servers, Virtual Machines and Containers are subject to a 30 day notice period and no refunds will be offered unless cancellation is requested within 3 days from order.
No pro-rata refunds will be processed for services that have been billed for periods longer than 1 month (quarterly, biannually, annually etc), unless the cancellation and refund request is received within the initial 30 day trial period.
No refunds will be processed for once off charges. These charges include (and are not limited to) services such as setup fees, restoration fees, redemption fees, etc.
Refund disbursement methods
Refunds will be paid out in the form of monetary value in the currency of the initial order.
Payments made with a bank card are refunded back to the same card via transaction reversal.
Refunds of bank transfer payments or EFT are done via bank transfer with the banking details supplied by the account holder.
If the request email is sent from the authorised email address on the billing account, we require banking details and proof they are the bank account holder before we approve the refund.
If request is not sent from the authorised email, we require banking details, proof they are the bank account holder, copy of ID and copy of company registration document before we approve the refund.
Refunds of PayPal payments are done via PayPal to the PayPal account that made the payment.
Payments done via PayFast are refunded by PayFast on request. The timescale for all PayFast credit card refund is 5-10 working days. All PayFast EFT payments will be paid into the client’s bank account within 48 hours.
Payments done via DPO are refunded by DPO on request. The timescale for all DPO credit card refund is 24 to 72 working hours.
Payments done via M-Pesa are refunded by M-Pesa on request. The timescale for all M-Pesa credit card refund is within 72 working hours.
All refunds are third-party dependent and Kagiso Online cannot be held liable for refund payment delays caused by any mentioned third party provider.
9. Ad-hoc System Admin
Server maintenance and support terms and conditions
Kagiso Online will provide server administration and support in line with the terms and conditions in this agreement.
The service provided does not constitute a work-for-hire contract, all services provided will be seen as being provided as an independent contractor. Kagiso Online, it’s staff and contractors will not be considered employees of the client.
Terms applied to the technical support and sysadmin service.
Kagiso Online and its sysadmins are highly experienced when it comes to system administration and troubleshooting. Though there are often times where it is not possible to resolve an issue, and it needs to be referred back to the software provider. If this is the case or the service does not behave in the expected manner, the technical support issue must be handed over to the 3rd party by the client. Any liability or service delivery expectation from Kagiso Online will be nullified by the client.
By making use of our services or initiating the sysadmin support service; the client agrees to all charges associated with the service as per pricing page for the cost quoted per unit of time. The client will be billed for the hours spent on the issue and any subsequent issues that may arise.
Kagiso Online will aim to communicate any additional fees should the initial estimate be inadequate. This will be done before any additional work is carried out.
The client agrees to pay Kagiso Online for the Admin time invested in the clients reported issue, irrespective of the outcome.
Payment may be required upfront, post task completion or based on milestones within the task. This is decided on a per task basis.
All tasks during the troubleshooting process are billable. This includes sub-tasks, troubleshooting, information gathering, client contact, updates and all steps involved in resolving the reported issue.
There is no guarantee on the outcome of the task or the amount of time it will take to resolve a reported issue.
Kagiso Online will take advantage of all available resources when undertaking a task. However, there is no guarantee of the outcome or the data that is recovered.
Though we will aim to provide a solid resolution to a reported issue, Kagiso Online cannot warrant against the issue reappearing. Any additional admin time spent on a task whether reoccurring or not, will be billable.
If it is found the service is being used for an activity that goes against Kagiso Online’s FUP or AUP we will discontinue the admin task promptly.
Liability of Kagiso Online is limited to the cost of the sysadmin time spent on the task.
Techniques or documented steps to fix the issue will be for the Kagiso Online’s consumption and use only. There will be no obligation to provide a detailed walk through or documentation to the client.
10. Affiliate Programme Terms
Introduction
This section outlines the terms and conditions governing the Affiliate Programme (“Programme”) for Kagiso Online. By participating in the Programme, affiliates agree to abide by these terms.
Brand Usage and Intellectual Property
Affiliates are granted a non-exclusive, limited, revocable right to use Kagiso Online branded assets for the sole purpose of promoting our services/products. Affiliates are not permitted to alter Kagiso Online logos, images, or other brand assets. Affiliates are not allowed to use the Kagiso Online brand in a manner that is misleading, defamatory, disparaging, or otherwise damaging to the brand.
Prohibited Use in Advertising
Affiliates, partners, and any third party are expressly prohibited from using Kagiso Online, or any variations, misspellings, or derivatives thereof, as keywords or search terms in any online advertising campaigns, including but not limited to Google Ads.
Unauthorised Ventures
Affiliates may not create separate entities, websites, social media accounts, or any ventures that could be mistaken as directly endorsed or operated by Kagiso Online. Affiliates may not use Kagiso Online in the title or name of such ventures unless explicitly authorised in writing by Kagiso Online.
Compliance with Laws
Affiliates are solely responsible for ensuring that their promotional activities comply with all applicable laws, rules, and regulations.
Termination
Kagiso Online reserves the right to terminate the affiliate relationship for any reason, including but not limited to, breach of any terms in this Agreement.
Liability
Kagiso Online will not be liable for indirect, special, or consequential damages arising in connection with this Programme.
Amendments
Kagiso Online reserves the right to modify or update these terms at any time without prior notice. It is the affiliate’s responsibility to stay updated with these terms.
Operations overview
1. Data security and ISO guidelines followed by Kagiso Online
Kagiso Online upstream provider follows best practices employed internationally when referring to data security, datacentre access, fire suppression, electrical supply management, disaster mitigation.
Their servers are secured using a variety of methods some of which are listed below:
Server user hierarchy setup and monitoring. Closely controlled to ensure correct user access levels.
Advanced user level isolation. Each user has their own environment on the server, meaning that the process data is isolated from all other users on the server.
Automated server OS updates ensure release updates of critical server processes. Helping to patch and secure servers in real-time.
Datacentre’s security and uptime features
Access control
All datacentres are tier 3 facilities
High-tech biometric access
Internal and external surveillance cameras
High-voltage security fences
24/7 on-site security presence
Fire protection and prevention measures
Very Early Smoke Detection Apparatus (VESDA)
No flammable materials within the ‘white space’
All cabling is fire-retardant
Regular cabinet audits
Strict adherance to power usage within each rack
Airflow monitoring and audits within each rack, performed often
Power continuity
11KV municipal power supplies
Fault-tolerant rings powering two energy centres
A and B feeds to server racks, networking, access control and air conditioning
Duel diesel generator with enough on-site diesel storage to continuously run the datacentre off-grid for up to 7 days
UPS power on each power feed allowing up to 30 minutes of switch-over time
Networking
Multi-homed with multiple tier-1 uplinks per datacentre
Redundant fibre routes via a fibre ring, ensure connectivity in case of a fibre break
VLAN reverse path forwarding protection
DDOS mitigation
Routing firewall rules
DDOS mitigation
Automatic traffic scrubbing and attack detection keep our network operating at optimal levels.
Scrubbing centre capable of scrubbing up to 40Gbps per source IP.
Null routing upstream is an option, though avoided in most cases thanks to the large scrubbing capabilities.
Network firewall rules
Rate-limiting abusive protocols per source IP
Ability to block abusive external IPs
Auto lock and unlock of rate limits based on predefined rule sets
Monitoring
All services are monitored 24/7. We monitor many services and ports per host so that we are aware of service downtime not limited to just ping response.
Our server monitoring services allow remote collection of CPU, memory, fan speed, temperature, power delivery and disk health.
Service monitoring informs our system administrators of service health for mail, database, mail queues, web services, and much more.
All this ensured the best hosting experience possible for our valued customers.
Datacentre’s location:
South Africa – Johannesburg
Dedicated servers
For clients requiring additional control of their hosting environment, our dedicated servers and custom hosting solutions allow true customisation of their network and hardware.
Customers will know their data is only accessible by the intended user and all processing power is available and ready for use by their hosted services.
Security updates
We subscribe to various vendor CVE reports. Along with automated Kernel updates on all our shared and managed servers, we also aim to patch all servers within a few days of a stable release and within hours of a major software update.
Device access control
We make use of software firewalls and host allow access controls in tandem with internal VPNs to managed access to systems through unified IP addresses.
Our firewall ruleset is implemented throughout our shared and managed servers. Firewall uptime is monitored 24/7 with auto-restarts on server reboot or service hang.
Automatic firewall rules blocks on events such as, port scanning, brute force attempts and distributed login attempts.
Unused ports are closed, rate limiting is implemented, excessive resource usage by processes are reported among many other incident rules.
Herd immunity through distributed grey and blacklisting blocks unsavoury IP ranges.
For integrated systems such as routers and switches their allow access control list works through IP restriction, in cases like this, we ensure all system administrators and network engineers connect from our internal IPs blocking out all unauthorised access.
Backups
All shared hosting and Kagiso Online managed servers are automatically backed up at least once a week on a rotational schedule from midnight, allowing for recovery of the server’s data when needed.
We backup the entire server which includes databases, emails and website content. As well as log files.
Backups are kept for a period of no more than 9 days. Customers are able to restore available incremental backups from their control panel.
It must be stressed that should a client host critical data that they cannot afford to lose, they are required to make their own off-server, local backups. Do not rely on our backups for your data recovery plan. Kagiso Online does not check the consistency of the backups. The customer has the ability and responsibility to check the availability as well as the consistency of the available backups.
We monitor the reported state of our backups on a daily basis, intervening where needed to ensure that we continuously backed up hosting environments.
Backups are scheduled to run within a defined time period. It must be noted that due to variable factors such as, IO spikes, work load of the backup servers, network throughput, load on the source server or an increase in volume of concurrent backup tasks within our infrastructure; it may happen that there is a delay or break in the backup schedule.
Software
We use trusted software from reputable vendors for all our production services. We are an advocate of open source and community driven software. Linux being the primary example of how well this works.
For internally developed software, we have quality control protocols, and two review steps before production release. We also make use of external 3rd party pen-testers to ensure our apps and addon’s are secure.
Anti-Virus
All shared servers use anti-virus software to scan newly uploaded files, stored data and emails. We utilise Imunify360. The security on a user and website level still stays the responsibility of the customer as Kagiso Online is not able to control users actions.
For managed servers free ImunifyAV is installed. Other security products as Imunify360 are available as payable addons. The security on a user and website level still stays the responsibility of the customer as Kagiso Online is not able to control users actions.
All outgoing mail is scanned and filtered for spam and malware.
We protect our mail users by implementing the following restrictions.
Anti-spam filtering.
Untrusted IP ranges excluded from receiving/sending mail.
Outgoing mail filtering to protect IP reputation and ensure delivery of mail.
Authentication required to send mail through our servers.
Credit Cards
All credit card information that we store for recurring payments is kept at our credit card processor in a PCI compliant datacentre with the necessary controls.
We don’t store billing information on our systems. We do, however, store a token which is unique to your payment details on the PCI compliant payment gateway.
Network Quality
Our team of dedicated network monitors actively respond to reports of network abuse.
Our responses include:
removing unfavourable content, blocking abusive email accounts that originate from our network, null routing IPs of abusive servers, notifying clients of compromised websites,
automatic WordPress updates,
daily malware scanning, and
the automatic removal of infected files.
These are only a few of the steps we take daily to keep our network and IP ranges clean.
Accreditation
Kagiso Online has not formalised our ISO accreditation, SOC 2 or ISO 27001. However, we steadfastly adhere to the principles instilled in these guidelines.
2. Data Protection
We take the security of your data very seriously at Kagiso Online, be it personal or stored data. We believe data is the property of the rightful creator and our customers have full control over their personal data.
GDPR
General Data Protection Regulation (GDPR) came into effect on the 25th of May 2018. Its purpose was to enforce the correct handling of an individual’s data. It determines how businesses use, store, and protect client data. We believe these guidelines have great merit and we adhere to these guidelines.
POPIA
Protection of Personal Information Act (POPIA) is a privacy law introduced in South Africa on 1 July 2021. The aim is to help secure and protect personal and company data in SA.
POPIA follows the EU’s GDPR very closely with a few differences in phrasing tailored to also cover personally identifiable data.
The protection of personal data is seen as protecting information such as names, contact details, addresses as well as digital identifiers that could link back to the client, such as IP addresses or email accounts.
3. Support
At Kagiso Online, we live for customer support. It’s the lifeline of our business and of our clients’ businesses.
We aim to employ the best staff possible and provide face to face training for all our staff members.
Our support motto is to put the client first. Within that structure our goal is to understand the client’s perspective as to the nature of a support request and its specifications, thereafter working to resolve the issue as quickly as possible.
Support process
All support requests are handled on a first come, first served principle . We do allow escalations of requests through keyword monitoring and manual contact via Live chat, or inbound phone calls.
We offer a client call back service, so our customers don’t have to wait on the line for a representative.
Clients have the option of being connected to our internal Slack for direct access to the team. This request is only entertained for clients that have managed services and a minimum spend threshold.
Support quality control
Support teams have a team lead, and operations managers actively monitor responses. This helps to keep our level of support at the industry-leading levels our customers have come to expect.
We monitor social media and review sites for client’s comments. We are committed to quick resolutions of client technical requests.
