Basic Terms and Conditions of Service

Basic Terms & Conditions of Service (T&C)

January 2017

Cubit Trade Services (Pty) Limited (Registration No. 2010/002275/07) (“Cozadomain”) provides various specific services to customers subject to Terms and Conditions of Service.

1. Interpretation and Definitions

1.1. Unless the context clearly indicates to the contrary, any term defined in the General Terms will, when used in these Specific Terms, bear the same meaning as defined in the General Terms.

1.2. Unless the context clearly indicates to the contrary, the following words will have these meanings:
Administrator and Registry means UniForum SA, the administrator of the .co.za Domain Name space
Administrator Policies means The Administrator policies published by the Administrator from time to time located at www.registry.net.za.
Domain Names means An easy to remember name that points to a server IP number. Cozadomain hosts domain names as part of its Domain Service to customers and supplies single purpose DNS-Servers
Domain Services means services Cozadomain provides you in respect of the Domain Names as set out in these Terms.
Time means A specific number and amount of hours
Date means the start of any date
Email means all services related to email, including forwarding, alias and relay and includes our efforts to filter for virus and spam
Harmful Program means Any computer code or assembled program that is designed to disrupt, disable, harm, or otherwise prevent the operation and functionality of any software, hardware, network or data.
Illegal Content means any Content in violation of any law
Registrar means An entity such as Cozadomain who has been accredited by the Administrator to perform Domain Name related transactions in the .co.za and org.za Domain name space.
Registrant means any legal person applying to register a Domain Name
Cozadomain terms and conditions (T&C)
These Basic Terms govern the contractual relationship between us, duly supplemented by the Additional Terms.
Unless expressly provided to the contrary in our Basic Terms, if there is a conflict in meaning, the following precedence ranking will apply (from highest to lowest):
i. these Basic Terms;
ii. the Additional Terms;
iii. Acceptable Use Policy;
iv. Privacy Policy;
v. other policies that may be introduced by us from time to time which we notify you of;
vi. any documents incorporated by reference in this Agreement.
Server means The computer hardware, machinery, and equipment on which the software operates
Operating System means the Linux Operating System Kernel and specifically excludes Software Services
Managed Server means that Cozadomain manages only the Server as well as applies updates to the Operating System only and any management is limited to four hours per 30 (thirty) day period
Services means the group of specific products and services that Cozadomain supplies
Software Services means the applications that are installed by you on the server which provides email services, web hosting services and any other Internet Services
Specific Service Software Managed Server means any Server that provides a specific and singular Software Service only
System Abuse means Any conduct that does or could damage, impair, overburden, disable absolutely any network, server, operating system or software services located anywhere in the world
AFSA means The Arbitration Foundation of Southern Africa
Agreement means These Terms and any specific terms that include these Basic Terms;
Customer is any person identified in the application for Services or in any addendum;
Customer Settings are any username, password we supply to the Customer, systems administrator or representative as part of the Services.
Basic Terms are the Basic Terms and conditions governing the contractual relationship between the parties, supplemented by the Additional Terms;
Our Terms means The Basic Terms, the Additional Terms, the Acceptable Use Policy, and Privacy Policy.
You or your means The Customer, including legal entity (such as a company or trust), who enters into an Agreement with Cozadomain;
Additional Terms means The terms and conditions which supplement the Basic Terms and govern the use of individual Services
Pre Paid means cleared and effected payment in Cubit trade Services (Pty) Ltd. Bank Account held with ABSA, Randburg under account number: 407 562 4372
Day means the first minute of any single calendar day
Initial Pre Paid Day means the date on which any Service starts
Last Pre Paid Day means the last day of any Service
Invoice means any Cozadomain Pre Paid Service Invoice

2. Undertakings and Acknowledgements

2.1. We agree to use all reasonable steps to provide the Services to you on a continual basis, for the duration of the Agreement.

2.2. Although we take appropriate and reasonable measures to ensure that the Services are Available

2.3 The Services are rendered “as is” and “as available” and are used at your own discretion and risk.

2.4 The Services are rendered on a Pre Paid basis and for a specific number of days

2.5 Any Cozadomain Server physically belongs to Hetzner Germany

2.5.1 All Services are also subject to the Terms & Conditions of Hetzner Germany, (http://hetzner.de)

2.5.1 The Cozadomain Terms will apply if there is any conflict of meaning with these Terms & Conditions of Hetzner Germany.

3. Terms

3.1. Cozadomain Basic Terms

3.2 Cozadomain Additional Terms

3.3 Acceptable Use Policy

3.4 Hetzner Germany Terms and Conditions of service

4. Amendment to Our Terms

4.1 Cozadomain reserves the right to make changes to Our Terms at any time without notice. Your continued use of the Services will be deemed consent to any such amended Terms and Policies.

4.2 If you object to any amended Terms, you are entitled to terminate your relationship with us under clause 13.

5. Customer Status

5.1 The Customer may be an incorporated entity (such as a company or close corporation), trust, partnership, or individual.

5.2 If a person enters into the Agreement:- in a representative capacity on behalf of a Customer who is an incorporated entity;
* on behalf of an unincorporated entity; or
* in any other representative capacity recognised in South African law,the person warrants that:- they are legally authorised to do so and indemnifies Cozadomain against any loss or damage that we may sustain resulting from the person’s lack of authority; and- all the information supplied to Cozadomain at any time relating to the entity, trust, partnership, association or other person who they represent is true, accurate, and complete.

5.3 We reserve the right to treat all misrepresentations by you or the person representing you as fraud and the person indemnifies us against any loss or damage that we may sustain resulting from the person’s lack of authority.

5.4 If we discover that you have fraudulently contracted to receive Services or that your representative has contracted without contractual capacity to do so, we may end the Terms or Services immediately without any further notice to you and you may not claim any restitution or refund of any amount you have already paid, regardless of whether you have used the Services or not.
When requested, you must give us sufficient proof of the authority of the person who takes any action or executes documents on your behalf for this Agreement. This includes providing proof that the authorised signatory of your bank account has permission to debit your account.

5.5 If there is a dispute between individuals or entities you are involved with (including partners, shareholders, trustees, employees), we may act on the representation of a person claiming to be duly authorised to represent you, without having to independently verify the authority.

5.6 You indemnify us from any action or inaction based on the representation in 5.6. If however we ask you to give Cozadomain independent verification of the authority of any individual, you must provide it to us in a format we find reasonably acceptable.

6. Commencement and Duration

6.1 Your emailed application is an offer by you to accept Services from Cozadomain. The terms relating to the acceptance of the offer are as follows:
* Cozadomain will only have accepted your offer once you have received an Invoice and delivered cleared payment at least 24 hours prior to the initial pre payment date.
* All Services are provided on a pre payment basis and only for the specific time indicated on each Invoice.
* All Services may be terminated by you or Cozadomain without notice at or before the end date of any pre paid period, as per clause 14 or other clauses of this Agreement
* You may terminate the Service at any time, however as Cozadomain has provisioned the Service for you for the entire pre paid period, Cozadomain will not refund you any service fees. * You are also still liable for any third party costs incurred during this period.
6.2 The Agreement will commenceme when Cozadomain provides you or your administrator with a username and password.
6.3 We will conclude the agreement in Mossel Bay, Western Cape.

7. Additional fees

You must pay all additional fees, as soon as they become due.

8. Content

8.1 We may disclose any content, material, or data (including any of your data) if:
* required by law;
* lawfully asked to do so by any authorities, including the South African Police Services pursuant to a subpoena under section 205 of the Criminal Procedure Act 51 of 1977; or according to a judicial, administrative or governmental order.
* We do not have to give you any notice.
* You will have no recourse against us if we act under this clause and you accordingly waive your right to make any claim or demand, or to institute any legal proceedings against us.

9. Warranties

9.1 The Services are provided “as is” and “as available”. No warranty of any kind is given, whether express or implied, including warranties of merchantability, title, or non-infringement, except where such a warranty is specifically required by law.

10. Intellectual Property Rights

Cozadomain retains all Intellectual Property Rights employed in or otherwise related to our infrastructure, business and the provision of any of the Services under Our Basic Terms.

11. Customer Indemnities

11.1 You indemnify (hold us harmless) from any liability arising from civil or criminal proceedings instituted against us or for any loss or damage you or a third party have suffered because of any interruption or unavailability of the Services.

11.2 You indemnify us and hold us harmless against all losses you have suffered or actions against us as a result of: the use of the Services, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included within the range of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following:- software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services,
non-performance or unavailability of any of the services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail Servers,

*non-performance or unavailability of external communications networks to which you or our network infrastructure is connected, and
repairs, maintenance, upgrades, modifications, alterations or replacement of any hardware forming part of the Services, or any faults or defects in the hardware.

11.3 If we are sued for something that you have indemnified us for, you will take our place in the law suit or be liable to pay us back for any costs, damages and expenses including attorneys’ fees on the attorney and own client scale (you will be liable to pay our attorney’s fees finally awarded against us by a court or agreed to in a written settlement agreement, provided that:we notify you in writing as soon as we become aware of the indemnified claim so you can take steps to contest it;
you may assume sole control of the defence of the claim or related settlement negotiations; and

11.3.1 we will give you, at your expense, with the assistance, information, and authority necessary to enable you to perform your obligations under this clause.

11.4 You indemnify us against any loss or damage that Cozadomain may suffer because of your actions or non actions.

12. Suspension of the Services

12.1 Cozadomain may temporarily suspend its Service to repair, maintain, upgrade, modify, replace or improve any of its Services.

12.2 Where circumstances permit, Cozadomain will provide prior notice of any service suspension to Customers. However, Cozadomain will not be held liable for any resulting loss or damage suffered as a result of any service suspension.

13. Termination

13.1 Cozadomain may terminate any Services without written notice to you.

13.2 You may terminate any Services without written notice to Cozadomain.

13.3 Termination notice can be sent via email must be sent to accounts@cozadomain.com or in writing to our address provided in clause 17.

13.4 The Agreement terminates at the end of any Pre Paid Day Date.

13.3 Breach: If you breach any of Our Terms, we may, without prejudice to any other rights that Cozadomain may have and without notice to you:
* claim immediate payment of all outstanding charges due to us,
* terminate or suspend your use of the Services, which includes the deletion of all data
* terminate our relationship with you;

13.4 By agreeing to our Terms & Conditions, you expressly consent to clause 13

13.5 In all instances, we may retain all Services Fees you have already paid and recover all of our costs associated, including legal costs on an attorney and own client scale (you will be liable to pay our attorneys fees) with your breach.

13.6 Return of software: Where you have in your possession any of Cozadomain’s software as a result of using the Service and the related Service ends, you must immediately return the hardware or software to us.
14. Force Majeure
14.1 Cozadomain will not be responsible for any breach of the Agreement caused by circumstances beyond our control, including hail, fire, earthquake, flood, civil strike, compliance with government orders, failure of any supplier of electricity as well as war, no electronic communication service and other Force Majeure

15. Resolving disputes

15.1 Notifying each other: A dispute concerning this Agreement exists once a Party notifies the other in writing, detailing the nature of the dispute, requesting that it be resolved as per clause 15.

15.2 The parties must refer any dispute to be resolved by:
* Negotiation (direct talks to try and agree how to end the dispute); failing which
* Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
* Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).

15.2.1 Negotiation: Each party must make sure that their chosen representatives meet within 10 business days, to negotiate and try to end the dispute by written agreement within a further 15 business days.

15.2.2 Mediation: If negotiation fails, the parties must refer the dispute to mediation under AFSA rules.

15.2.3 Arbitration: If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA latest rules for expedited arbitrations. The arbitration will be held in English in Mossel Bay. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

16. Exclusion and Limitation of Liability

16.1 Cozadomain will not be responsible for any indirect, incidental, special, or consequential damages or losses arising from the Agreement. This includes loss of profits, revenue, anticipated savings, business transactions, goodwill or other contracts. It is irrelevant if this is due to negligence (carelessness) or breach of contract.

16.2 Our total liability to you is for direct damages up to a maximum amount of:
*one calendar month of your base Service fee; or
*R1,000; whichever is less.

16.3 Our liability for direct damages under clause 16.2 will be excluded where we are held liable because of your use of any third party services or products which you accessed together with the Services, but which we did not provide to you.

16.4 This clause will apply even if you advised Cozadomain of the possibility of loss of damage prior to its occurrence

17. Notices

17.1 You must send all notices to Cozadomain, whether for court process, notices or other documents or communications, at Suite 11, Diaz Business Park, Diaz, Mossel Bay

17.2 We may give all notices to you by email to the email address you provided to us on the application form when you first subscribed for the Services

17.3 Any notice or communication required or permitted to be given under this Agreement will be valid and effective only if in writing

17.4 All notices you sent to us which are:- sent by prepaid registered post will be deemed to have been received 14 days after date of postage

18. General

18.1 Entire agreement: The Agreement constitutes the entire agreement between the Parties

18.2 No Variation: No changes to the Agreement made by Customer are effective unless in writing and signed by the authorised signatories of both parties

18.3 Waiver (giving up rights): Any favour we may allow you will not affect (substitute) any of our rights against you

18.4 Severability: If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of the Agreement if it does not change its purpose

18.5 Applicable Law: South African law governs this Agreement

18.5 Survival: Despite termination of the Agreement, any clause, which, from the context, contemplates on-going rights and obligations of the Parties, will survive the termination and continue to be of full force and effect.

19. The Basic Terms will apply if there is any conflict of meaning with the Additional Terms

20. Cozadomain server products

20.1 DNS Servers (Managed DNS Servers)

20.1 DNS Servers are Invoiced and described as “Dns Servers”
* Each individual DNS Server is a Specific Service Software Managed Server which only provides DNS as a Service
* No root console access is offered on any DNS Server as it is a Specific Service Software Managed Server
* Proprietary software installed on any Specific Service Software Managed Server always remains the property of Cozadomain or other owners thereof
* You need to provide Cozadomain with DNS Zone File Settings and 5 (five) zone file setting changes per 24 hour period (one day) is provided at no additional cost
* Additional setting changes to DNS server Zones are avaiable at a pre paid rate of R75 per Zone Change Request

20.1.2 DNS Servers Web Application provision
* Cozadomain may provide a web management interface at the sole discretion of Cozadomain
* Cozadomain may remove or revoke access to any web management interface to prevent errors in the DNS service or for security or other reasons.

20.1.3 Zone File Settings
* Cozadomain will not unreasonably withold your zone file settings and will provide these settings to you once you request to receive it, it in writing
* Zone file settings are deleted when you do not pre pay, when the Service is terminated or becomes unavailable as per the Agreement

20.1.4 Bulk Uploads
* Bulk setting uploads are not available for DNS Servers zone file settings, unless provided at inception of the dns server and in the formats required and specified by Cozadomain

20.1.5 All DNS server logs remain the property of Cozadomain

20.1.6 All data is deleted when you do not pre pay, when the Service is terminated or becomes unavailable as per the Agreement

 

20.2 Backup Servers (Managed Backup Servers)

20.2.1 Backup Servers are Invoiced and described as “Backup Servers” or “Managed Backup Servers”

20.2.2 Backup Servers are supplied as Managed Server Hosting and includes 4 (four) hours of maintenance to Server (Hardware and Operating system only) and support
* If any hours remain when the Service is terminated such hours are deemed to have been delivered and hours are not transferable between Servers
* Any additional hour required is offered on a pre paid basis and at a fixed rate of R1500 per hour and is limited to specific tasks related to maintenance or support

20.2.3 Bandwidth or Network Traffic: C-Panel Servers have 20TB of high speed traffic per 30 day period. After reaching the traffic limit the netowrk speed will be reduced to 10 percent or less of high speed

20.2.4 Your own system administrator has to install, configure and manage your ongoing backup and data integrity and;
* Cozadomain is never responsible for doing your actual backups, backup scheduling or ensuring that your backup data is accurate or operational
* Cozadomain does not offer password management, if you lose access to your server we can re install your server and you will have to restore data from your backups
* You may request one free re install per 24 hour period
* You may request five (5) hardware server restarts per 24 hour period
* Additional hardware restarts are billed at R75 per restart

20.2.5 Cozadomain never has, keeps or performs any backups of your managed backup server or data

20.2.6 You are required to provide Cozadomain with reasonable access to your backup server if you require Cozadomain to maintain your Server (hardware and operating system)

20.2.7 If you do not provide the access credentials per clause 20.2.6 you indemnify Cozadomain from performing any of the included four hours of maintenance

20.2.8 All data is deleted when you do not pre pay, when the Service is terminated or becomes unavailable as per the Agreement

20.2.9 We may invoice you for time spent troubleshooting issues that we find are outside our control that we cannot reasonably be expected to have prevented or solved quickly. Only we may decide what is reasonably within or outside our reasonable control.

 

20.3 C-Panel Servers (Managed C-Panel Servers)

20.3.1 C-Panel Servers are Invoiced and described as “Managed C-Panel Servers” or “C-Panel Servers”

20.3.2 C-Panel Servers are supplied as Managed Server Hosting and includes 4 (four) hours of maintenance to Server (Hardware and Operating system only) and support
* If any hours remain when the Service is terminated such hours are deemed to have been delivered and hours are not transferable between Servers
* Any additional hour required is offered on a pre paid basis and at a fixed rate of R1500 per hour and is limited to your specific tasks related to maintenance or support, and only if Cozadomain accepts your new sales order

20.3.3 Bandwidth or Network Traffic: C-Panel Servers have 20TB of high speed traffic per 30 day period. After reaching the traffic limit the netowrk speed will be reduced to 10 percent or less of high speed

20.3.4 You or your system administrator has to install, configure and manage your own Internet services (Ftp, Mail, Web, etc), backup your own data and data integrity and;
* Cozadomain is never responsible for your data, doing your actual backups, backup scheduling or ensuring that your backup data is accurate or operational.
* Cozadomain does not offer password management, if you lose access to your server we can re install your server and you will have to restore data from your backups
* You may request one free re install per 24 hour period
* You may request five (5) hardware server restarts per 24 hour period
* Additional hardware restarts are billed at R75 per restart

20.3.5 Your own systems administrator has to create a support account at the third party vendor C-Panel and as such any and all support for the C-Panel Software is not provided by Cozadomain but third party vendor, C-Panel Inc.
* Your use of the C-Panel Software is subject to the C-Panel Terms and Conditions of use.

20.3.6 Cozadomain never has, keeps or performs any backups of your managed c-panel server or data

20.3.7 You are required to provide Cozadomain with reasonable access to your c-panel server if you require Cozadomain to maintain your Server (hardware and operating system)

20.3.8 If you do not provide the access credentials per clause 20.2.6 you indemnify Cozadomain from performing any of the included four hours of maintenance

20.3.9 All data is deleted when you do not pre pay, when the Service is terminated or becomes unavailable as per the Agreement

20.3.10 We may invoice you for time spent troubleshooting issues that we find are outside our control that we cannot reasonably be expected to have prevented or solved quickly. Only we may decide what is reasonably within or outside our reasonable control.

21. Cozadomain Domain hosting products (Hosting)

21.1 Domain Hosting (Hosting) is Invoiced and described as “Hosting” or “Domain Hosting”

21.2 All Hosting includes basic e-mail support

21.3 You are solely responsible for all bandwidth and traffic related to your hosting package. This includes regularly monitoring usage through Email. You will be liable for any over-usage charges

21.4 We have no knowledge of, nor interest in Customer content hosted on your behalf by Cozadomain on a Server or a shared hosting package. We also do not in any way contribute to or approve the content.

21.5 We are not responsible for any licensing of any software you use or install on your web server or file system

21.6 All data may be deleted when you do not pre pay, when the Service is terminated or becomes unavailable as per the Agreement

21.7 You are solely responsible for baking up your data. On shared servers Cozadomain may have central backups, from which it may be possible to restore some data and if in the sole discretion of Cozadomain deemd as possible, such data restoration service is billable and chargeable at an agreed rate

22. Service Uptime

22.1 We may temporarily suspend our services to repair, maintain, upgrade, modify, replace or improve any services. We will provide notice of any service suspension to you. However, we will not be held liable for any resulting loss or damage suffered as a result of the service suspension.

23. Domain names

23.1 The registration and use of your domain name(s) is subject to the terms and conditions of use applied by the relevant naming authority; for example ICANN in the case of .COM/NET/ORG etc, Nominet in the case of domain names ending with .UK and Uniforum SA in the case of domain names ending with .ZA. As a domain registrant You shall ensure that you are aware of all those terms and conditions and that you comply with them.

23.2 You shall have no right to bring any claim against us in respect of refusal to register a domain name. Any administration charge paid by you to us shall be non-refundable not-withstanding refusal by the naming authority to register your desired domain name(s).

23.3 We shall have no liability in respect of the use by you of any domain name(s); any dispute between you and any other person must be resolved between the parties concerned in such a dispute. If any such disputes arise, Cozadomain shall be entitled, at its discretion and without giving any reason, to withhold, suspend or cancel the domain name(s) concerned. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such disputes. We shall not release any domain to another provider unless full payment for that domain has been received by us.

23.4 All charges payable by you for the services shall be in accordance with the scale of charges and rates published from time to time by us on our web site and shall be due and payable in advance of our service provision.

23.5 You give Cozadomain full power of attorney with regards your domain names if you make use of our whois protection system (where we do not display your email address, home address or information on the public whois) This power of attorney allows us to forward incoming emails for your domain name to your private email address and to attempt keep your information private.

24. Abusive Behavior

24.1 Cozadomain has a zero tolerance for abusive language (abusive behaviour) towards us and our staff

24.2 Any customer deemed at our sole discretion to be abusive could result in termination of Services as per clause 13

24.3 Threats to sue, institute criminal complaints, slander, libel, etc., are all considered forms of abuse

24.4 Each Customer is expected to communicate in an utterly polite and professional manner with Cozadomain (staff)

24.5 Each Customer is expected to avoid any form of emotional outburst or inappropriate language, or any other attempt to undermine the importance of good ethics in communication and human relations. Any act of close nature, or other type of offensive, abusive, disrespectful or condescending behaviour; oral, written, or delivered by a second party to Cozdomain will be interpreted as a breach of our agreement

24.6 Examples of abusive behavior and activity include, but are not limited to;
* Verbal abuse: cursing, yelling, threatening, etc
* Ongoing disregard for warnings or notices
* Consistent mistakes,errors,changes causing unnecessary workload
* Spamming Cozadomain email addresses, ticket systems or Continuous involvement in flood, robocall or any type of denial of service activity,
* Hacked services, or other ongoing non-permitted usage Consistent late payments or responses Issuing a charge back or bouncing a payment
* Continuous activation of problematic end-users
* Any Activity which affects the Service of other Cozadomain Services or any other person

25. Refund Policy

25.1 We do not issue any refunds for Domains already registered, Services already provisioned and any other consumable product which has already been consumed and is not returnable for refund.

25.2 No refunds will be made if we terminate or suspend any Service due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions. This does not affect any statutory rights.