Skip to main content

Written by Kevin Cartmell on . Posted in Legal.

Thank you

Thank you for your request we will be in contact shortly 

  • Created on .
  • Hits: 141

Written by Kevin Cartmell on . Posted in Legal.

Service Level Agreement

SERVICE AGREEMENT :CARTMELL AND CARTMELL COMMUNICATIONS (PTY)Ltd

  1. DEFINITIONS
    • Agreement means the entire content of this document including all schedules and attachments hereto;
    • Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables;
    • Copyright means the property rights in original works of authorship, expressed in a tangible medium of expression;
    • Deliverables means the services and work product specified in the quotation to be delivered by Designer to Client, in the form and media specified in the quotation;
    • Final Art means all creative content developed or created by Supplier, or commissioned by Supplier, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Supplier’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
    • Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.
    • Hosting means provision of space on a server owned or leased for use by Client, including but not limited to email, back-ups and website statistics.
    • Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the Supplier and which may or may not be shown and/or delivered to Client for consideration, but do not form part of the Final Art.
    • Project means the scope and purpose of the Client’s identified usage of the work product as described in the Quotation.
    • Quotation means a written description of the Project and the costs in relation thereto addressed to the client.The Quotation shall form part of this agreement.
    • Services means all services and the work to be provided to the Client by the Supplier, as described and otherwise further defined in the Quotation.
    • Supplier Tools means all design tools developed and/or utilized by Supplier in performing the Services, including but without limitation to pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements;
    • Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation to stock photography, sound or illustration;
    • Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client, whether registered or not.
    • Webmastermeans a service which provides creativity, maintenance and web support by the Supplier to the Client.
  2. INTERPRETATION
    • Expressions defined in the Act shall bear the meanings assigned to them therein;
    • References to sections shall be construed as referring to sections of the Act;
    • Words importing natural persons shall include a reference to bodies corporate and other legal personae andvice versa;
    • Words importing the masculine shall include a reference to the feminine and other genders;
    • Words importing the singular shall include a reference to the plural andvice versa;
    • Annexes to this agreement shall be deemed to have been incorporated herein and shall form an integral part hereof;
    • A reference to a party in a document includes that party's successors and permitted assigns;
    • Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;
    • Where the day on or by which anything is to be done is not a business day, it shall be done on or by the 1st(first) business day thereafter;
    • When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Saturday, Sunday or Public Holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or Public Holiday;
    • A reference to a document includes an amendment or supplement to, or replacement or novation of that document;
    • The captions appearing in this agreement are for reference purposes only and shall not affect the interpretation hereof;
    • if any provision is a definition (or under this heading"Interpretation"and/or any other heading in this agreement) and is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition (or such other clause) effect shall be given to it as if it were a substantive provision in the body of the agreement;         
    • Where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
  3. QUOTATION
    • The terms of the Quotation shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the agreement shall lapse and be of no force and effect, save that the non-refundable deposit paid to the Supplier by the Client shall be forfeit to the supplier and the Client shall have no claim against the supplier for the refund of the deposit.
  4. FEES AND CHARGES
    • In consideration of the Services to be performed by the Supplier, the Client shall pay to the Supplier all amounts set forth in the Quotation, and all applicable additional charges, even if calculated or assessed subsequent to the payment schedule.
    • Expenses. Client shall pay the Supplier’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, deliveries, typesetting, models, presentation materials and photocopies;(b) travel expenses including transportation, meals, and lodging, incurred by Supplier with Client’s prior approval. 
    • Additional Costs. The Project pricing includes Supplier’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client, unless specifically otherwise provided for in the Quotation.
    • Invoices. On completion (date of sign off) all invoices are payable within 30 days of receipt. A monthly penalty of R600.00 (six hundred rand) is payable on all overdue balances, regardless of the quantum of the outstanding balance. Payments will be credited first to penalty charges and next to the unpaid balance. The Client shall be responsible for all collection and legal fees necessitated by lateness or default in payment on an attorney and own client scale. The Supplier reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditional upon receipt of payment in full, which shall be inclusive of any and all outstanding additional costs, taxes, expenses, fees, charges, penalties or the costs of changes.
    • The Supplier shall not be obliged to continue with the supply of any services should any invoices not be paid timeously.
  5. DEPOSITThe client agrees to make payment of a non-refundable deposit of 50% of the Quotation price prior to any performance whatsoever being carried out by the Supplier. 
  6. CHANGES
    • General Changes. Unless otherwise provided in the Quotation, and except as otherwise provided for herein, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services on a time and materials basis, at the Supplier’s standard hourly rate of R 650.00 (five hundred and fifty rand). The Supplier’s standard hourly rate shall escalate by 8% on the anniversary of this agreement. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. The Supplier may extend or modify any delivery schedule or deadlines in the Quotation and Deliverables as may be required by such changes.
    • Timing. The Supplier will prioritize performance of the Services as may be necessary or as identified in the Quotation, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Quotation. The Client agrees to review Deliverables within twenty two days of delivery and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to the Supplier. The Supplier shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that the Supplier’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Quotation and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or the Supplier’s obligations under this Agreement. Should the client not approve the Deliverables in writing within twenty two days of delivery, the client shall be deemed to have approved the deliverables.
    • Testing and Acceptance. The Supplier will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within twenty two days of receipt of each Deliverable, shall notify the Supplier, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Quotation, or of any other objections, corrections, changes or amendments that the Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction, change or amendment, and the Supplier will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
  7. CLIENT RESPONSIBILITIESClient acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
    • Co-ordination of any decision-making with parties other than the Supplier;
    • Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Quotation; and
  8. ACCREDITATION/PROMOTIONS
    • All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in the Supplier’s name in the form, size and location as incorporated by the Supplier in the Deliverables, or as otherwise directed by the Supplier. The Supplier retains the right to reproduce, publish and display the Deliverables in the Supplier’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
  9. CONFIDENTIAL INFORMATION
    • Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation to Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information, except as may be necessary to perform its obligations under the Quotation, except as may be required by a court. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
  10. RELATIONSHIP OF THE PARTIES
    • Independent Contractor. The Supplier is an independent contractor, not an employee of Client or any company affiliated with Client. The Supplier shall provide the Services under the general direction of the Client, but the Supplier shall determine, in the Supplier’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party, except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
    • Supplier Agents. The Supplier shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Supplier Agents”). Notwithstanding, the Supplier shall remain fully responsible for such Supplier Agents’ compliance with the various terms and conditions of this Agreement.
    • No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any designer, employee or Supplier Agent of the Supplier, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that the Supplier shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. The Supplier, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law.
    • No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by the Supplier, and the Supplier shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by the Supplier.
  11. WARRANTIES AND REPRESENTATIONS
    • By Client. The Client represents, warrants and covenants to the Supplier that:
      • Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
      • to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
      • Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
      • Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
    • By Supplier:
      • The Supplier hereby represents, warrants and covenants to Client that the Supplier will provide the Services identified in the Quotation in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
      • To the best of Supplier’s knowledge, the Final Art provided by the Supplier and the Supplier’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of the Supplier shall be void.
      • Except for the express representations and warranties stated in this agreement, the Supplier makes no warranties whatsoever. The Supplier explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or rules and regulations applicable to the project.
  1. INDEMNIFICATION/LIABILITY
    • By Client. Client agrees to indemnify, save and hold the Supplier harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances the Supplier shall promptly notify Client in writing of any claim;
      • The Supplier provides Client with information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by the Supplier in providing such assistance.
      • The Supplier assumes no responsibility for the hosting of any offensive, defamatory, illegal, immoral or similar content hosted at the client’s instance.
    • Limitation of Liability. The services and the work product of the Supplier are sold "as is." In all circumstances, the maximum liability of the Supplier, its directors, officers, employees, supplier agents and affiliates ("Supplier Parties"), to client for damages for any and all causes whatsoever, and client's maximum remedy, regardless of the cause of action, whether in contract, delict or otherwise, shall be limited to the net profit of the Supplier. In no event shall the Supplier be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or damages arising out of or relating to the materials or the services provided by designer, even if designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
  2. TERM AND TERMINATION
    • This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
    • In the event of a fixed term agreement, after the expiry of the agreement, the agreement shall continue of a month to month basis, terminable on one calendar month’s notice from either party to the other and subject to an increase in the rate as set out in the schedule. An escalation fee of 8% per annum on anniversary of the signature of this agreement shall be applicable.
    • This Agreement may be terminated at any time by either party effective immediately upon the mutual agreement of the parties, or if any party:
      • becomes insolvent, enters into business rescue, makes an assignment for the benefit of its creditors; or
      • breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
    • In the event of termination, the Supplier shall be compensated for the Services performed up to and including the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by the Supplier or the Supplier’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. The Client shall pay all Expenses and additional costs incurred by the Supplier and shall compensate the Supplier at its hourly rate for all additional work performed after the termination of the Agreement.
    • In the event of termination by Client and upon full payment of compensation as provided herein, the Supplier grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
    • Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
  3. DOMICILIA AND NOTICES

14.1          For the purpose of this agreement, including the giving of notices in terms hereof and the serving of legal process, the parties choose domicilium citandi et executandi ("domicilium") as follows:

14.1.1                   The Supplier at Cartmell and Cartmell Communications, Northlands Corner, First Floor, Block A, Corner Witkoppen and New Market Roads, Northriding.

14.1.2                   The Client at ___________________

14.2          Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if given in writing.

14.3                      A party may at any time change its domicilium by notice in writing, provided that the newdomicilium is in the Republic of South Africa and consists of, or includes, a physical address at which process can be served.

14.4          Any notice given in connection with this agreement may be delivered by hand; or be sent by prepaid registered post; to the domicilium chosen by the party concerned.  Any notice or process delivered on any party in connection with any matter or subject arising out of this agreement or any notice shall be deemed to have been delivered if handed to any responsible person at the domicilium chosen by any party and it shall not be necessary to hand such process or notice to any party personally.

14.5          A notice given as set out above shall be presumed to have been duly delivered:

14.5.1                    on the date of delivery if delivered by hand;

14.5.2                    on the 10th (tenth) day from the date of posting including the date of posting if posted by pre-paid registered post from within the Republic of South Africa;

14.5.3                    on the 14th (fourteenth) day from the date of posting including the date of posting if posted from outside the Republic of South Africa; and

  1. ENTIRE AGREEMENT
    • This agreement constitutes the entire agreement between the parties with regard to the matters dealt with herein and no representations, terms, conditions or warranties express or implied not contained in this agreement shall be binding on the parties.
  2. VARIATION AND CANCELLATION
    • No agreement varying, adding to, deleting from or cancelling this agreement, and no waiver whether specifically, implicitly or by conduct of any right to enforce any term of this agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.It is recorded that there exists no collateral and/or other agreements and that this is the sole agreement entered into by and between the parties.
  1. INDULGENCES
    • No indulgence granted by a party shall constitute a waiver of any of that party's rights under this agreement; accordingly, that party shall not be precluded from as a consequence of having granted such indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.
  2. GENERAL
    • Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that the Supplier’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
    • Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
    • No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
    • Force Majeure. The Supplier shall not be deemed in breach of this Agreement if the Supplier is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity of the Supplier or any local authority or international law or any other event beyond the Supplier’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the Supplier shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
    • Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the Republic of South Africa without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties’ shall at all times be entitled to approach a competent court for relief. 
    • Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect.
    • Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
    • Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Quotation and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below.
  3. By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

 

Schedule A: Intellectual Property Provisions            

1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

1.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of the Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to the Supplier a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with the Supplier’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.  

1.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. The Supplier shall inform the Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances the Supplier shall inform the Client of any need to license, at the Client’s expense, and unless otherwise provided for by the Client, the Client shall obtain the license(s) necessary to permit the Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event the Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, the Client hereby indemnifies, saves and holds the Supplier harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.            

1.3 Preliminary Works. The Supplier retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to the Supplier within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of the Supplier.     

1.4 Original Artwork. The Supplier retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. The Client shall return all original artwork to the Supplier within 30 days of completion of the Services.

1.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, the Supplier assigns to the Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by the Supplier for use by Client as a Trademark. The Supplier shall cooperate with the Client and shall execute any additional documents reasonably requested by the Client to evidence such assignment. The Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and registration and do not otherwise infringe the rights of any third party. The Client hereby indemnifies, saves and holds harmless the Supplier from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of the Client’s use and/or failure to obtain rights to use or use of the Trademark.

1.6 Supplier Tools. All Supplier Tools are and shall remain the exclusive property of the Supplier. The Supplier hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Supplier’s Tools solely to the extent necessary with the Final Deliverables for the Project. The Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Supplier Tools comprising any software or technology of the Supplier.

2. RIGHTS TO FINAL ART           

2.1 Assignment:

Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, The Supplier hereby assigns to the Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. The Supplier agrees to reasonably co-operate with the Client and shall execute any additional documents reasonably necessary to evidence such assignment. Until the aforementioned assignment, all intellectual property shall remain the sole and exclusive property of the Supplier and the Supplier shall be entitled to all rights in law in respect of the intellectual property.

Schedule B: Interactive-specific Terms and Conditions

  1. SUPPORT SERVICES. Additional time shall be billed at the Supplier’s regular hourly rate, then in effect upon the date of the request for additional support.

2. ENHANCEMENTS          

During the Maintenance Period, the Client may request that the Supplier develop enhancements to the Deliverables, and the Supplier shall exercise commercially reasonable efforts to create such enhancements. The parties understand that preexisting obligations to third parties existing on the date of the request for enhancements may delay the immediate execution of any such requested enhancements. Such enhancements shall be provided on a time and materials basis at the Supplier’s then in effect price for such services.   

3. ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1 Designer Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by the Client, the Supplier represents and warrants that, to the best of the Supplier’s knowledge, the Supplier Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by the Client or third parties.

4. COMPLIANCE WITH LAWS    

4.1 The Supplier shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. The Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

  • Created on .
  • Hits: 43032

Written by Kevin Cartmell on . Posted in Legal.

Legal Centre

Welcome to our Legal Centre. We strive to provide website design, hosting, maintenance and seo service you can trust. Getting legal and compliance right is an important part of that.

Our relationship with you

We believe that plain and understandable terms, policies or legal notices help to ensure a common understanding and are the foundation of a mutually beneficial relationship. People seldom read them, but they are important because they describe the relationship between you and us. Our agreement includes different terms, including our:

Our policies and processes

In order to build trust, we want our policies and processes on certain important issues to be clear. For example, our:

Compliance with the law

We are also committed to complying with all laws and codes (like the ISPA Code) that apply to xneelo. For example, we take our responsibility to comply with data protection laws (like the GDPR and POPIA) seriously. You can read more about:

We also respect that the law (like PAIA) requires us to give certain people access to information in certain circumstances. Our Access to Information Manual (or PAIA Manual) sets out how you can request access.

  • Created on .
  • Hits: 3096

Written by Kevin Cartmell on . Posted in Legal.

Specific Terms & Conditions

These Specific Terms include:

(Last updated: June 2018)

(Previous versions: August 2007, February 2008, July 2009, March 2010, July 2011, June 2014, December 2015 and February 2016)

Cartmell and Cartmell Communications (Pty) LTD (Registration No. 2017/049283/07) (“cartmell”) is a South African web hosting service provider that gives a range of web hosting Services to its Customers. We provide the Services to Customers subject to our Terms of Service.

1. Interpretation and Definitions

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

1.2. Unless the context clearly indicates to the contrary, the following words will have these meanings:

Word Meaning
Administrator and Registry ZA Central Registry, the administrator of the .co.za Domain Name space.
Administrator Policies The Administrator policies published by the Administrator from time to time located at www.registry.net.za.
Domain Names An easy to remember name that points directly to your website. cartmell hosts domain names as part of its Domain Service to customers.
Domain Services The Services we provide to you in respect of the Domain Names as set out in these Special Terms.
Email the Services We provide to you in the form of:
  • An email box on our systems, which includes an email address or aliases to the email address and
  • best endeavours virus protection and filtering for unsolicited commercial email (SPAM).
Harmful Code Any computer code that:
  • Is designed to disrupt, disable, harm, or otherwise hinder the operation of any software, hardware or network (generally referred to as “viruses”, “Trojan horses” or “worms”).
  • Would disable any software, hardware or network or impair in any way its operation. It does so by running out of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (generally referred to as “time bombs”, “time locks”, or “drop dead” code).
  • Would permit any person to access any software, hardware or network of any other person without consent (generally referred to as “trap”, “access code”, “backdoor” or “trapdoor” codes) or
  • Any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause the software, hardware or networks of any person to stop functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with operations;
Illegal Content Content in violation of any law.
Location The cartmell Data Centres situated in Cape Town and Johannesburg as well as in Germany or any other address we indicate to you.
Misrepresentation By a Customer includes:
  • Actions to deceive, mislead, defraud, or otherwise make incorrect representations to any person regarding any fact or circumstance.
  • Impersonating or attempting to impersonate or otherwise misrepresenting your identity to any person for whatever purpose.
  • Altering the content of communications you received and then forwarding it to others without indicating the nature of the alterations, or
  • forging or otherwise manipulating origination details and data on any electronic data message generated by the Server with a view to disguising or deleting the origin of anything posted or transmitted including the use of “Socks Proxies”, “EZBounce”, “Vhosts”, “BNC’s” or any other software or hardware methods used to disguise or misrepresent your own IP address.
Registrar An entity such as cartmell who has been accredited by the Administrator to perform Domain Name related transactions in the .co.za Domain name space.
Registrant The entity applying to register a Domain Name.
Server The computer hardware, machinery, and equipment on which the software operates.
Server Hosting The Services that we provide to you.
Software The operating system and applications we provide to you.
System Abuse Any conduct that does or may:
  • Damage, impair, overburden, or disable,
  • interfere with any other person’s use of, or
  • compromise or tamper with the security of, including spamming and mass messaging, the use of software and technologies known as “floodbots”, “clonebots”, “automated client” ( for example “bots”, “fserv” or “script”), nuking and nuking tools (for example”7th Sphere”).
  • Interfere with our or any other person’s software, hardware, systems, networks, or the Server.
Beta Services Beta versions or features of our existing or new Services. (Beta Services Terms forms part of our Specific Terms, clause 8)
Trial Period Duration of the Beta Services.

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
  • Error free
  • Up to date and
  • Reliable

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

2.3 We will establish and maintain reasonable security measures to secure the integrity and confidentiality of any personal information that we host or store for you as referred to in section 19 of the Protection of Personal Information Act 2013 (POPI).

3. Hosting terms

General

3.1. cartmell is a member of the Internet Service Providers’ Association (ISPA). We abide by and uphold the ISPA Code of Conduct.

3.2. We provide Servers, space on shared Servers and hosting of Customer Servers, together with web services and email facilities for web sites controlled by individuals or companies that do not have their own web servers.

3.3. We will only be required to give you the Server type and configuration that is advertised at the time you decide to obtain the Service from us. If you are an existing Customer and you wish to upgrade to a new Server, we may charge you an additional setup fee.

3.4. We will use all reasonable steps to verify the identity of your representative that wishes to access your Server at the Location. However, we will not be liable for any loss or damage you suffer because of a non-authorised person gaining access to your Server at the Location. You must notify us in writing of your representatives who are entitled to access your Server at the Location.

3.5. If we find that you have breached any of these Specific Terms, we may exercise any rights we may have available to us in law, including (without notice) the right to terminate access to any Services, or suspend or terminate any Services (which may include the deletion of your data).

Content

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

3.7. Nothing that we do in the performance of our obligations under the Service will be seen as an assumption of responsibility or liability by us as a result of any content. In particular, the limitation of liability in our Terms of Service will apply specifically to any loss, destruction, or corruption of your data, irrespective of the cause, including our negligence, your failure to back it up, us deleting it after the Service is terminated, and any system error or failure whether foreseen or unforeseen.

3.8. We will make a package available on a Server, where the Server is shared with other Customers. The Server will (at all times) remain our property. We will setup the Server according to our standard managed hosting Server configuration, at the Location on your behalf. We will not be responsible for the use of software you install (and for any vulnerabilities including traffic generated as per clause 3.10 below, that may result from the use of the software). You use the software at your own risk.

3.9. Where appropriate, we will maintain the software on our managed Servers.

3.10. You are solely responsible for all bandwidth and traffic related to your hosting package. This includes regularly monitoring usage through konsoleH. You will be liable for any over-usage charges. Any traffic management and reporting tools we give you are given solely to assist you in this process. This does not free you from responsibility, or place any responsibility on us. If you decide to make use of any traffic management and reporting tools:

  • All information will not be real time information and there will always be a one day delay in the furnishing of information and
  • We will not be responsible for any traffic spikes, information or denial of service attacks, or any loss or damage you suffer because of the information not being provided in real time.
  • We are not required to give you further information on traffic usage other than what is reported through konsoleH.

3.11. We are not responsible for any licensing of any software you use.

Managed Dedicated Hosting

3.12. We will make a Server available to you for your own exclusive use. The Server will at all times remain cartmell’s property. We will setup and manage the Server at the Location on your behalf.

3.13. All Server log files remain cartmell’s property. If you ask us to give you a server log file, we will give you a copy of the relevant log file.

3.14. You must not remove the Server from a Location.

3.15. We will manage the Server, including the hardware, software, and upgrades at our sole discretion.

3.16. Clause 3.10 will also apply to these Services.

3.17. If the Server becomes the target or source of any form of denial of service attack and cartmell believes that there is no other possible solution at that point in time, we may disconnect the Server from the network.

3.18. cartmell will not be responsible for your use of any software that you may install (and any vulnerabilities including traffic generated as per clause 3.10 that may result from the use of the software). You therefore use the software at your own risk.

3.19. We are not responsible for any licensing of any software you use.

Managed Hosting (Shared and Dedicated)

Service Availability, Service Level Guarantee and Network Uptime Guarantee

3.20. We guarantee that our network will be available 99.9% of the time in any given month, excluding scheduled maintenance. This means that you should not experience network downtime of more than 43 minutes in any month counted from the first day of every month.

3.21. Network uptime includes functioning of all network infrastructure, including routers, switches, firewall, and cabling.

3.22. Network downtime exists when a Customer is unable to transmit and receive data to and from our Managed Service and is measured according to our monitoring system.

3.23. If network uptime is less than 99.9% (in other words downtime exceeds 43 minutes in a given month), we will credit you 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of your monthly fee for the affected hosting package or Server).

3.24. You will not receive any credit:

  • if there is a degradation of the Service outside our control;
  • during scheduled maintenance windows;
  • on the happening of a force majeure event;
  • should a well formed DDoS attack target your server or hosting infrastructure;
  • where the downtime is due to:
    • Failure of access circuits to our network,
    • domain Name Server issues outside our direct control,
    • DNS propagation,
    • negligent customer acts or omissions; or
    • outages elsewhere on the Internet that hinder access to your hosting services.
  • We are also not responsible for browser or DNS caching that may make your website appear inaccessible when others can still access it.

These exclusions will not apply where the problems arise from cartmell’s Server links to the Internet or our routers.

3.25. If you wish to exercise your right to a credit refund, you must request it by sending an email to us at This email address is being protected from spambots. You need JavaScript enabled to view it.. The email must include the domain or Server name associated with your hosting service in the “subject” line. Each request must include your customer number as well as the dates and times of the network unavailability. We must receive the request within 48 hours of the downtime. Only once we confirm the network unavailability according to our monitoring system, will we give you the credits. We will give you the credits within two billing cycles according to our Refund Policy. Despite anything to the contrary, the total amount we credit to you in a particular month will not exceed the total hosting fee you must pay for the month in question.

Self-Managed Hosting

3.26. We will make a Server available to you, installed with the latest version of an operating system, from a list of available options we give you. If you elect to have a Microsoft operating system installed that we provide, you are bound by the licensing terms & conditions of the relevant Microsoft Software with effect from when the Microsoft Software is first installed on the Server.

3.27. You will manage the operating system and all software on the Server. cartmell will not and has no obligation to get involved in any aspect of managing the Server apart from the hardware.

3.28. The allocated Server remains cartmell’s sole property.

3.29. If you request any deviation from the standard hardware offering we will give the non-standard hardware, but the cost will be passed directly on to you. The hardware remains our property. If you opt for an on-site spare for the hardware, the spare components will remain your property.

3.30. If your Server becomes the target or source of any form of denial of service attack, we reserve the right to disconnect the Server from the network if we find that no other solution is possible at that stage.

3.31. We will not be responsible for your use of any software that you may install (and any vulnerabilities including traffic generated as per clause 3.10 that may result from the use of the software). You use the software at your own risk.

3.32. Clause 3.10 will also apply to these Services.

3.33. We are not responsible for any licensing of any software you use, other than where you are leasing Microsoft software through cartmell.

Self-Managed Server Hardware Guarantee

3.34. We will give you the following support. The repair or replacement of:

  • Network interface cards
  • Patch cables
  • Hard drives
  • Central processing units (CPUs)
  • Fans that cause a CPU to fail
  • Memory
  • Motherboards
  • Power supplies and
  • (“Self-Managed Server Problems”)

At no cost to you. If we need to install a new operating system, we must do so with the latest version of the operating system, unless you request otherwise

Support and Service Level Guarantee

3.35. This guarantee only applies to Self-Managed Hosting Customers. We will try to respond to and resolve all Self-Managed server Problems that specifically relate to Server hardware within 90 minutes of you reporting the problem to us over the phone.

3.36. If we do not Resolve (as defined below) the Self-Managed server Problem within 90 minutes or the extended period cartmell may advise, we will give you a credit equal to one month’s worth of the base hosting fee. For purposes of this clause,”Resolving” means that the Root Server originally provided by cartmell responds to a ping as measured by our network monitoring system. If your Self-Managed Server has not been configured to respond to ping requests, you must provide us with another way of determining that the Server is visible on the network. If you do not do this we will be relieved of our obligations under this clause.

3.37. You must also understand that Server restore time from a back-up depends on the volume of data to be retrieved, which could result in several hours downtime. In such a case, we are not obliged to give you a credit.

Network Uptime Guarantee

3.38. We guarantee that our network will be available 99.9% of the time in a given month, excluding scheduled maintenance. This means that you should not experience network downtime of more than 43 minutes in any given month counted from the first day of every month.

  • Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but excludes services or software running on your Server.
  • Network downtime exists when you are unable to ping the Server and it is measured according to our monitoring system.

3.39. If network uptime is less than 99.9%, (in other words downtime exceeds 43 minutes in a given month), we will credit you 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of your monthly fee for the affected hosting package or Server).

3.40. You will not receive the credit if the Self-Managed Server problem is attributable to:

  • Scheduled maintenance.
  • A degradation of the Service outside our control.
  • A force majeure event.
  • A well formed DDoS attack against your server or hosting infrastructure.
  • Negligent acts or omissions on your part that results in the operating system failing.
  • You requesting us to reinstall a version of the operating system software other than the latest version of the operating system software.
  • You being unavailable which results in us being unable to establish contact with you to resolve the problem or
  • You failing to follow the prescribed procedure timorously or at all, as indicated in 3.36.

3.41. If you wish to exercise your right, you must request it by sending an email to us at This email address is being protected from spambots. You need JavaScript enabled to view it.. The request must be received by cartmell within 48 hours of the incident being reported and must include your customer number, your name as listed on the cartmell invoice, the date and approximate time of the problem and the Server identification codes or the Server name. Only once we confirm the network unavailability according to our monitoring system, will we supply the credits to you within two billing cycles after we receive the request, according to our Refund Policy. Despite anything to the contrary, the total amount we credit you in a particular month will not exceed the total hosting fee you must pay for the month in question.

Custom Hosting Solutions (CHS)

3.42. We provide the CHS Service to you according to the proposal you have accepted, together with any written specification that has been agreed to between the parties and our Agreement.

3.43. When we make Servers available to you for your own exclusive use, the Servers will at all times remain cartmell’s property. You must not remove the Server from a Location. CHS will setup and manage the Server at the Location on your behalf.

3.44. All Server log files remain our property. If you requests us to give you a Server log file, a copy of the relevant log file will be given to you.

3.45. We will manage the Servers, including the hardware, agreed Software, and upgrades at our sole discretion. CHS Customers will be informed before any adjustments or upgrades and a suitable time will be agreed upon between parties.

3.46. Where we supply and install the Software, we will do so according to the written specifications agreed to between both Parties. For that purpose, you must give us all the relevant information and co-operation needed to enable us to do the installation. If there are any extra costs involved with the Software, which were not present before we contracted with you, these will be for your account. If you need CHS assistance for the installation of the Software, you will be charged according to our standard hourly rates.

3.47. Where appropriate, we will in our sole discretion, maintain the Software on your CHS Servers.

3.48. You are responsible for all bandwidth and traffic associated with your Server. We will monitor your traffic usage and any spikes that may occur during business hours. However you remain solely responsible for all traffic associated costs. If your Server becomes the target or source of any form of denial of service attack, we reserve the right to disconnect the Server from the network if we find that no other solution is possible at that stage.

3.49. We will not be responsible for your use of any Software that you may install (and any vulnerabilities including traffic generated as per clause 3.48 that may result from the use of the Software). You use the software at your own risk.

Troubleshooting, ad-hoc (intermittent) and emergency work

3.50. Any troubleshooting you request will be charged at our standard hourly rate. If the cause turns out to be due to the gross negligence on our part, these charges will be waived. Our senior management will decide whether or not an act of gross negligence has been committed.

3.51. If you require any ad-hoc (on request) work to be done outside Business hours (as defined in clause 3.57), you must specifically schedule this with us. We will only attend to emergency work outside of Business hours.

3.52. 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.

CHS service fees

3.53. We have the right to increase the CHS service fees annually following the anniversary of the date we started providing our Services to you (“the Anniversary Date”). We will give you written details of any such increase at least 30 days prior to each Anniversary Date and any amendment or variation of the service fees will be seen as an amendment of Terms of Service. If you object to the increase in the service fees, you can terminate your relationship with us under clause 14 of our Terms of Service.

CHS Support and Service Level Guarantee (SLA)

3.54. The CHS Service is accompanied by our 99.9% network uptime guarantee. SLA claims, as defined in our Terms of Service, are only applicable to the standard, fixed monthly charges. Any ad-hoc time and third party costs (for example hardware, traffic over-usage) are exempt from any form of SLA claim.

3.55. Service disruptions will be attended to within:

  • 15 minutes during business hours; and
  • 60 minutes out of business hours.

(Business hours are Monday to Friday between 08:00 and 17:00, excluding public holidays.)

CHS Hardware Guarantee

3.56. We will try to respond to all CHS problems that specifically relate to Server hardware within 90 minutes of the problem occurring. If we do not resolve the Server problem within 90 minutes or the extended period as we may advise, we will give you a credit equal to one month’s worth of the base hosting fee.

3.57. You must also understand that the Server restore time from a back-up depends on the volume of data to be retrieved, which could result in several hours downtime. In such a case, we are not obliged to give you a credit.

Network Uptime Guarantee

3.58. We guarantee that our network will be available 99.9% of the time in any month, excluding scheduled maintenance. This means that you should not experience network downtime of more than 43 minutes in any month counted from the first day of every month.

  • Network uptime includes functioning of all network infrastructures, including routers, switches, firewall, and cabling.
  • Network downtime exists when a Customer is unable to transmit and receive data to and from our Managed Service and is measured according to our CHS monitoring system.

3.59. If network uptime is less than 99.9% (in other words downtime exceeds 43 minutes in a given month), we will credit you 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of your monthly fee for the affected hosting service or Server).

3.60. If you, as a CHS Customer have a High Availability solution as part of the CHS proposal agreement, an additional SLA will be agreed upon in the proposal, signed by you.

3.61. You will not receive any credit:

  • If there is a degradation of the Service outside our control.
  • During scheduled maintenance windows.
  • Should a well formed DDoS attack target your server or hosting infrastructure.
  • On the happening of a force majeure event or
  • Where the downtime is due to failure of access circuits to the our network, Domain Name Server issues outside our direct control, DNS propagation, your negligent acts or omissions or outages elsewhere on the Internet that hinder access to your hosting services.

3.62. We are also not responsible for browser or DNS caching that may make your website appear inaccessible when others can still access it. These exclusions will not apply where the problems arise from our Server links to the Internet or our routers.

3.63. If you wish to exercise your right, you must request it by sending an email to us at This email address is being protected from spambots. You need JavaScript enabled to view it.. Each request must include the dates and times of the network unavailability. The request must be received within 48 hours of the downtime. Only once we confirm the network unavailability according to our monitoring system, will we give you the credits. We will do so within two billing cycles after our receipt of the requests, in accordance with our Refund Policy. Despite anything to the contrary, the total amount credited to you in a particular month will not exceed the total hosting fee you must pay for the month in question.

Colocation Hosting

3.64. The colocation product provides you with only a rack, power connection and data connection.You must supply your own Server(s) and peripherals.

3.65. You remain solely responsible for all equipment that you install in your rack. We will be responsible for the Location the rack is stored in and for the network connection only.

3.66. You are solely responsible for all bandwidth and traffic related to your hosting service and are liable for all traffic charges. This includes regularly monitoring usage through konsoleH. Note, only traffic provided by cartmell will be visible in konsoleH. Any traffic management and reporting tools we give you are given solely to assist you in this process. This does not free you from responsibility, or place any responsibility on us. If you decide to use the konsoleH traffic monitoring tool, please be aware that the information will not be real time information and there will always be a one day delay in the furnishing of information; we will not be responsible for any traffic spikes, information or denial of service attacks, or any loss or damage you suffer because of the information not being provided in real time.

3.67. If your Server(s) or network components become the target or source of any form of denial of service attack, we may disconnect you from the network if we find that no other solution is possible at that stage.

3.68. We have provided a resilient infrastructure at the Location and have taken reasonable precautions to protect your Server(s) and equipment. We are confident that you will have a positive experience while hosting in our facility. Should, despite these best efforts, something happen, we will not be liable for any loss or damage as a result of any failure on our part.

3.69. You must at all times adhere to the standard health and safety guidelines laid down for customers entering the Location. We may deny you access to the Location if we at any time have reason to believe that you are failing to comply with the procedures and guidelines.

3.70. We may temporarily suspend our colocation services to repair, maintain, upgrade, modify, replace or improve any of its colocation services. We will provide 14 calendar days prior 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.

3.71 We may terminate any colocation services on 30 days written notice to you.

3.72 If either party fails to comply with any of its obligations or commit a breach of this Agreement and fail to remedy such default or breach within seven days after having received a written notice to do so, or be placed in provisional or final liquidation or sequestration, or judicial management, or enter into any compromise arrangements with its creditors, or fail to satisfy a judgment taken against it within 10 days, then the other party will be entitled to cancel the Agreement on written notice to the defaulting party. The provisions of this clause will not affect the rights of the parties to claim damages in respect of a breach of any of the provisions of this Agreement.

3.73 Neither party will 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.

3.74 Our total liability to you is for direct damages up to a maximum amount of three months of your base hosting fee.

Network Uptime Guarantee

3.75. As a Colocation customer, we guarantee that our network will be available 99.9% of the time in a given month, excluding scheduled maintenance. This means that you should not experience network downtime of more than 43 minutes in any given month counted from the first day of every month.

  • Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but excludes services or software running on your hardware equipment.
  • Network downtime exists when you are unable to ping the Server(s) and the downtime is recorded by our monitoring system.

If network uptime is less than 99.9%, (in other words downtime exceeds 43 minutes in a given month), we will credit you 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of your monthly fee for the affected hosting service).

You will not receive the credit if the problem is attributable to:

  • Scheduled maintenance.
  • A degradation of the Service outside our control.
  • A force majeure event.
  • DDoS attack against your Server or hosting infrastructure.
  • Negligent acts or omissions on your part.
  • You being unavailable which results in us being unable to establish contact with you to resolve the problem.

If you wish to exercise your right, you must request it by sending an email to us at This email address is being protected from spambots. You need JavaScript enabled to view it.. The request must be received by cartmell within 48 hours of the incident being reported and must include your customer number, your name as listed on the cartmell invoice, the date and approximate time of the problem and the Colocation identification codes or the Server name. Only once we confirm the network unavailability according to our monitoring system, will we supply the credits to you within two billing cycles after we receive the request, according to our Refund Policy. Despite anything to the contrary, the total amount we credit you in a particular month will not exceed the total hosting fee you must pay for the month in question.

Self-Managed Dedicated and Colocation Hosting Fees

3.76. You will pay us a base hosting fee for Self-Managed Dedicated Server and Colocation hosting as indicated on the website.

3.77. The base hosting fee does not include any other fees such as:

  • Setup fees.
  • Fees relating to incremental bandwidth usage.
  • Fees for extra IP addresses and
  • Random access memory and hard drive.

Beyond that which is available without additional charge specifically specified in our standard rates available on our website that will be additional fees you must pay.

4. Email terms

4.1. We will provide the following email related Services for Customers selecting shared or managed dedicated hosting only:

  • Filtering of unsolicited commercial email (SPAM): This is done on a best effort basis, without any guarantees, using appropriate best of breed technologies (for example SpamAssassin which is the most widely used open source filtering software);
  • Virus filtering: This is done on a best effort basis without any guarantees, using appropriate best of breed technologies (for example Clam that is a very popular open source solution).
  • An SMTP (simple mail transfer protocol) server for the sending of outgoing mail;
  • A POP3 (post office protocol) server for the downloading of incoming mail.
  • IMAP (internet message across protocol) Server for the reading of mail.

4.2. We will take appropriate and reasonable measures to make your email environment secure and reliable.

4.3. We will:

  • Do our best to support the setup and configuration and
  • not be held responsible if there is any incompatibility between our Systems and any other third party application.

5. Domain Name Terms

Domain Registration

5.1. The Administrator runs the registry system used to process co.za Domain Name related transactions initiated by Domain Name Registrars, such as cartmell, which include domain registrations, domain updates, domain renewals, domain deletions, domain queries and domain transfers.

5.2. We have been accredited as an independent Registrar to register Domain Names on the Administrator’s registry system. All Domain Names that we register on your behalf within the .co.za domain name space are subject to the Administrator Policies, which may be amended from time to time.

5.3. We act on your instructions to the extent that those instructions are possible and lawful. Domain Name Administrators have the right to cancel, transfer or suspend a Domain Name registration in certain circumstances. For example where it would put the Administrator in conflict with any law or upon receipt of a court order or ruling of an arbitrator.

5.4. We also use the Services of an international registrar to register generic Top Level Domains (gTLDs such as .com and .org) as well as Top Level Domains in non-South African country codes (ccTLDs such as .uk and .eu). This registration is subject to the terms of the relevant registrar OpenSRS/Tucows. Registration, maintenance, or transfer of a Domain Name is subject to the terms of the relevant registry governing the Domain Name. We cannot guarantee the registration of any Domain Name selected by you.

When there is a transfer of ownership the Registrant explicitly authorizes Tucows to act as their Designated Agent, as stipulated by the ICANN Transfer Policy, to approve a Change of Registrant on their behalf. It remains the domain user’s responsibility to check that correct ownership details are listed for the domain.

5.5. The following principles apply with regard to Domain Name registrations:

  • Domains Names are made available on a “first come, first served” basis. We therefore do not guarantee that the Domain Name requested by you is available for registration.
  • We do 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.
  • Registering a Domain Name is like getting a licence. As long as the Domain Name is current, you can continue to use it. Domain Names are not regarded as property and cannot be “owned” by anyone. However, the domain name will be registered in the name of the “Registrant”.
  • It is important to ensure that the correct person or entity is reflected as the Registrant as cartmell will only act on the instructions of the Account Owner or anyone authorised to act on the cartmell account. In certain instances the Registrant might not be the Account Owner.
  • You as Registrant or your agent will retain control of your Domain Name. We will maintain the Domain Name for you as part of the Service.
  • We will 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.
  • Any Internet Protocol (IP) address that we allocate to you will remain our sole property. We give you a non-exclusive, non-transferable licence to use the IP address for the duration of our agreement with you.
  • If you are a cartmell Reseller, you agree not to make yourself the Registrant of your customer’s Domain Name. If you do so, we reserve the right to terminate your Reseller status.
  • 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.
  • Domain Names are registered for one year. Whilst we will try to ensure that your Domain Name does not lapse, it is your responsibility to ensure that your Domain Name does not lapse. Our systems have been programmed to automatically renew your Domain Name unless you expressly tell us not to do so, in which case it will lapse. We will try to send you a reminder. It sometimes happens that reminders are not received due to events beyond our control and we will not be liable.

5.6. 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. A Domain Name that is reinstated during the grace period will result in the Domain Name continuing as before with no refunds being processed.

5.7. You must provide us with all the information that we request from you. We will not be held responsible if you give us 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.

5.8. The following fees will be incurred by you:

  • 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 reasonable expenses or charges relating to the registration, transfer, or renewal of the Domain Name.

These service fees are non-refundable.

5.9. You warrant that:

  • You are entitled to register and use the Domain Name or
  • if you are not the Registrant, you have the consent of the Registrant to use the Domain Name; 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.

5.10. You indemnify us against any loss or damage that we may suffer arising from your registration or use of the Domain Name. We act as data processor on behalf of the Administrator, who is the data controller, regarding personal data that you give us when you register a Domain Name. You agree that we may share the personal data that we collect in this way with the Administrator. You agree to indemnify and hold harmless us and our sub-processors against any claim you may have as a result of us sharing your personal data with the Administrator, or the Administrator’s failure to protect your personal data in accordance with applicable data protection laws.

Changes to .co.za Domain Name and Domain Name Information

5.11. It is not possible for us or the Administrator 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 mentioned in clause 5.5 and 5.6, you will be required to pay a fee to the Registrar.

5.12. Either the Registrant or its agent (as described below) can change co.za Registrant information (for example the Registrant’s name, email address, telephone number and physical address) through konsoleH.

5.13. If the Registrant has a cartmell account, the Registrant can make the changes.

5.14. If the Registrant has appointed an agent with a cartmell account to administer the Domain Name, the Domain Name will be linked to that agent’s account and the agent will be able to make the changes.

5.15. cartmell will only act on the instructions of the Account Owner or anyone authorised to act on the account.

5.16. Where a change takes place, the Domain Name status will change to “pending update” and the pending update period of five consecutive days will commence. This five day period has been instituted by the Administrator and cannot be modified by cartmell. On expiry of the pending update period, the Domain Name information will automatically be updated.

5.17. The Registrant can ask cartmell to create a account and transfer control of the Domain Name to the Registrant’s account at any time, provided any requirements laid down by cartmell are met.

Disputes

5.18. In the event of a dispute around a Domain Name between the Registrant and someone else (including his agent) regarding control of the Domain Name or cartmell account to which the Domain Name is linked, we will only act, if we receive written instructions to change the name of the Registrant from:

  • The liquidator of an incorporated or unincorporated business, where the business has been wound up, whether provisionally or finally, whether compulsory or voluntary.
  • A letter from the executor where the Registrant of the Domain Name has died requesting that the Domain Name be transferred to a named entity.
  • An order of Court in relation to any of the above or
  • An order of an Arbitration Tribunal of competent jurisdiction requiring action in any administrative proceeding, conducted under the Uniform Dispute Resolution Policy adopted by ICANN, Alternate Dispute Resolution Regulations in South Africa or any similar proceedings in another ccTLD or gTLD to which you are a party.

5.19. In certain circumstances, the Domain Name might be “locked”. A “locked” Domain Name can only be transferred by the Administrator. The ability to lock a Domain Name is generally intended for situations where a court, or other recognised authority such as an accredited Domain Name dispute resolution provider, intends presiding over a dispute concerning the Domain Name and has informed the Administrator. The Domain Name will be “frozen” until a hearing or adjudication on the matter has been finalised. Only the Administrator is able to lock and unlock a Domain Name.

5.20. The Registrant indemnifies us against any loss or damage that we may suffer arising from us preventing either party from accessing or performing Domain Name updates through konsoleH.

Domain Name Transfers to another Registrar

5.21. You are able to transfer your Domain Name to another Registrar at any time other than during the grace period.

5.22. 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.

5.23. Upon applying to change the Registrar information for a Domain Name through the registry system, the gaining Registrar will commence a Registrar Change Process, which will ultimately result in the proposed changes being implemented.

The Table below illustrates the voting outcome when you request your Domain Name to be transferred to another Registrar. The Administrator (Registry) will send the Registrant and the losing Registrar an email which requires a vote to complete the transfer process. The various outcomes are demonstrated in the table below according to the voting actions. For example should both the Registrant and the losing Registrar vote Yes (Y) then the transfer will take place immediately.

“Y” – Authorise Transfer “#” – Do Nothing “N” – Decline Transfer
Scenario Losing Registrar Registrant Outcome
1 Y Y Transfer immediately
2 Y N Transfer on expiry of pending transfer period (5 days)
3 Y # Transfer on expiry of pending transfer period (5 days)
4 N Y Transfer immediately
5 N N Reject Transfer on expiry of pending transfer period (5 days)
6 N # Reject Transfer on expiry of pending transfer period (5 days)
7 # Y Transfer immediately
8 # N Reject Transfer on expiry of pending transfer period (5 days)
9 # # Reject Transfer on expiry of pending transfer period (5 days)

Domain Name Cancellations

5.24. A Domain Name can be cancelled at any time other than during a grace period.

5.25. Initiating a Domain Name cancellation request will result in the Domain Name being suspended and ultimately deleted from the Registry.

5.26. Once initiated, a period of five consecutive days must run (the “pending suspension” period) whereafter the status of the Domain Name will automatically change to the “pending deletion” period which will run for another five consecutive days. At the end of the pending deletion period the Domain Name will automatically be deleted and revert back into the pool of available Domain Names. Domain Names that have been deleted from the Registry database cannot be reinstated.

5.27. The Pending Suspension and Pending Deletion periods are a fixed system parameter instituted by the Administrator and cannot be modified by us.

Domain Name Renewals

5.28. We will give you a renewal reminder by email within 66 days prior to the renewal date of your Domain Name.

5.29. If you do not want to renew the Domain Name, you must give notice by clicking on the link in the renewal reminder email. This will automatically instruct us not to renew the Domain Name. This notice must be given at least 33 Business Days prior to the domain name renewal date.

5.30. If you do not give the required notice (this can be done by clicking on the link sent in the renewal reminder email, terminating the domain via the konsoleH control panel or by emailing us directly) we will automatically renew the Domain Name and a renewal fee will be added to your next invoice.

Payment Default of the Domain Services

5.31. 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

5.32. 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.

5.33. If any of the 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 Terms of Service) you or any third party may suffer arising from, or in any way relating to, the termination of the Domain Services.

Domain Name Disputes

5.34. Various alternate dispute resolution mechanisms apply for Domain Names registered globally. These include:

  • The Uniform Dispute Resolution Policy adopted by ICANN for certain gTLDs.
  • The Alternate Dispute Resolution Regulations applicable in South Africa and
  • similar proceedings in other ccTLDs.

5.35. 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.

5.36. 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).

5.37. 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, reinstated or released until they are unlocked.

6. Other Services

6.1. We offer third party services.

6.2. While we make every effort to select reliable vendors, maintain relationships and hold them accountable to ensure a reliable service on behalf of our Customers, we do not control and are not responsible for those services and you use those third party services at your own risk.

6.3. We will not be liable for any loss or damage you have suffered as a result of your use of such third party services including any interruption or unavailability of the third party services.

7. Reseller Responsibilities

7.1. Resellers are responsible for supporting their clients. We don’t provide support to our Reseller’s clients. If a Reseller’s client contacts us, we reserve the right to place the client’s services on hold until the reseller can assume their responsibility for their client. All support requests must be made by the Reseller on their clients’ behalf for security purposes. We reserve the right to terminate your Service with cartmell if you fail to provide adequate first line support to your clients.

7.2. As a Reseller, you recognise that cartmell is ultimately responsible for the provision of the Service. Under certain circumstances cartmell may be compelled to deal directly with your client. This may happen for example where:

  • You are unable to attend to any requests by your client due to unavailability i.e. you are not contactable over a period of 48 hours.
  • You fail to comply with any lawful client request or effect technical changes to enable your client to receive the Services.
  • You fail to pay any amounts owing to cartmell on due date or
  • you die. In such event you irrevocably appoint cartmell as your attorney and agent to do all such things and sign all documents relating to the Service as may be necessary.

7.3. When you apply for any Service on behalf of your client, you must ensure that your client agrees to the cartmell Agreement , which includes cartmell’s Terms of Service, Acceptable Use Policy and Privacy Policy.

7.4. You agree not to publish or distribute any advertising material or make any public or press statements regarding cartmell or our Services without prior written consent from cartmell. In order to obtain written consent, please email This email address is being protected from spambots. You need JavaScript enabled to view it..

7.5. You may not make use of the cartmell logo or product imagery in any manner without prior written consent. In order to obtain written consent, please email This email address is being protected from spambots. You need JavaScript enabled to view it..

7.6. As a Reseller you have access to our konsoleH Control Panel in order to manage settings, including, but not limited to the renewal of the Services, email settings as well as the ability to view and manage domain names and run reports. Under no circumstances are you allowed to customise, re-brand or in any way modify konsoleH for your own use. You must only provide access to employees and clients, authorised by yourself (“Authorised Users”) to have access to konsoleH. As a Reseller, you are responsible for all access to konsoleH by your Authorised Users and for any actions taken by any of the Authorised Users.

7.7. We reserve the right to take whatever action we feel necessary at any time to preserve the security and reliable operation of our infrastructure and you undertake that you will not do or permit anything to be done which will compromise cartmell’s security.

7.8. You authorise cartmell to act on any instruction given by or purporting to originate from yourself or your client, even if it transpires that cartmell, yourself and your client have been defrauded by someone else, unless you or your client has notified cartmell prior to cartmell acting on a fraudulent instruction.

7.9. You are solely responsible for processing all billing for your clients and for all debt collection relating to your clients.

7.10. All fees will be payable to cartmell as soon as they become due.

7.11. In the event of a dispute arising between the parties, you are obliged to continue paying the Service Fees as and when they become due and payable in terms of the Agreement.

7.12. You unconditionally and irrevocably indemnify cartmell and agree to hold cartmell free from and harmless against all losses suffered or incurred by cartmell as a direct or indirect result of your or your client’s use of the Services, or any downtime, outage, interruption in or unavailability of the Services.

8. Beta Services

8.1. We may offer Beta Services to you, and we will determine the availability, features, components and Trial Period for the Beta Services. You may access and use the Beta Services solely as permitted by this clause.

8.2. If you use the Beta Services, we may request feedback relating to your access, use, or testing of the Beta Services, including observations or information regarding the performance, features and functionality of the Beta Services.

8.3. You must comply with our Acceptable Use Policy when you use the Beta Services, and the Beta Services may not be:

  • modified, distributed, or used to make derivative works;
  • decompiled, reverse engineered, or copied;
  • reproduced, transferred, or distributed; or
  • used for benchmarking or performance testing.

8.4. In addition to the above, you must not:

  • publicly disseminate performance information or analysis related to the Beta Services;
  • remove any product identification or other notices contained in the Beta Services; or
  • allow any third party to access or use the Beta Services, other than your employees or agents that need it

8.5. We may suspend or terminate your access to or use of the Beta Services at any time and for any reason. We may notify you if your use of the Beta Services has been suspended or terminated. We may cease offering the Beta Services at any time in our sole discretion.

8.6. Once the Trial Period is complete, you may lose access to the Beta Services, unless we incorporate the features of the Beta Services into the Services we provide. Additionally, you must return or destroy all copies of documentation and confidential information related to the Beta Services.

8.7. If we release a generally available version of the Beta Services, your access to and use of the generally available version will be subject to the section of the Specific Terms as may be specified for that generally available Service.

8.8. We may collect data from the Beta Services and use it to improve or enhance any of our existing Services. This data will be in a de-identified form and will be used to enhance or improve the Beta Services and any other products and services.

8.9. You grant us a non-transferable and exclusive licence to use the data you provide to us while using the Beta Services in line with our Privacy Policy.

8.10. The Beta 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 warranty is specifically required by law.

8.11. You indemnify us and hold us harmless against any loss or damage that you may suffer (or any action against us) as a result of:

  • your use of the Beta Services, or
  • any modification, suspension, interruption in or unavailability of, or termination of the Beta Services.
  • Created on .
  • Hits: 19452