IMPORTANT NOTICE
Please read all of these terms and conditions carefully. These Standard Terms and Conditions apply to all services advertised on our website. If there are any further conditions applicable to specific services, we will make the available to you by means of a written agreement. All clauses below are important and if there are any that you do not understand, please contact us for assistance.
1 The Services
1.1 iSPACE is not the supplier of the ADSL line, modem or any other hardware required to make use of the Services and does not service, apply, install or provide access to these goods as a result of the Services.
1.2 The Services are subject to availability of third party networks and infrastructure. The Services are only provided to the extent that these are in place.
2 Disclosure of limitations in the Services
2.1 It is specifically disclosed to the Subscriber that there are inherent limitations in Services. While iSPACE will use its best endeavors to avoid interruptions in internet services and/or the performance of equipment:
2.1.1 iSPACE uses third party networks, services and infrastructure to deliver the Services to the Subscriber which it cannot control; and
2.1.2 temporary downtimes in internet services from time to time are inevitable.
2.2 iSPACE strongly recommends that the Subscriber obtains a redundant service should any interruption in the Services be likely to have a significant impact on its business.
2.3 Without limiting any other provisions of this Agreement, the Subscriber agrees that the Services have been offered and accepted subject to the specific limitations set out in this clause and that this is a specific condition of the Services agreed between iSPACE and the Subscriber as contemplated in section 54(1) and 55(6) of the Consumer Protection Act (if applicable).
2.4 The effect of this clause 2 is that the Services are accepted in the specific condition and subject to the limitations set out above. Accordingly, the Subscriber is precluded from taking action against iSPACE for losses that arise from the limitations explained in this clause.
3 Charges
3.1 The Subscriber’s entitlement to use the Services, whether on a monthly, twelve months or twenty-four months’ contract basis will attract the pre-agreed charges. If charges are monthly, these charges are payable monthly in advance, and if charges are annual, these charges are payable annually in advance by the Subscriber to iSPACE.
3.2 The charges are not subject to discounts and include Value Added Tax, unless agreed otherwise in writing and signed by a director of iSPACE.
3.3 In the event that the Subscriber is a juristic person or contracting in the ordinary course of its business, iSPACE reserves the right to adjust service charges at their sole and absolute discretion. If the Subscriber is an individual acting outside his or her business or profession, he or she agrees that the charges may be increased from the Consumer Price Index from time to time, but in the event of an increase above that he/she will be entitled to cancel this Agreement on 30 days’ business notice after receiving notice of a price increase. Existing Subscribers will receive one month’s written notice relating to price adjustments.
3.4 Payments of subscriptions will only be accepted by way of debit order.
3.5 If the Subscriber fails to make any payment on the due date, any amount outstanding becomes immediately due and payable and iSPACE is entitled to cancel any credit facilities of the Subscriber on 20 business days’ notice.
4 Consent
The Subscriber agrees that iSPACE may:
4.1 perform a credit search on the Subscriber’s record with one or more of the registered Credit Bureaux when assessing the Subscriber’s application form.
4.2 Monitor the Subscriber’s payment behaviour by researching his/her record at one or more of the registered Credit Bureaux.
4.3 Use new information and data obtained from other Credit Bureaux in respect of the Subscriber’s future applications.
4.4 Record the existence of the Subscriber’s account with any Credit Bureaux.
4.5 Record and transmit details of how the applicant has performed, and how the account is conducted by the Subscriber in meeting his/her obligations on the account.
4.6 iSPACE undertakes to give the Subscriber 28 days’ written notice prior to the forwarding of the details to the database.
5 Termination
5.1 Subscribers on a one month, twelve months and twenty-four months’ contract, that intend on terminating their iSPACE service can cancel if they pay:
5.1.1 all subscription charges outstanding on the contract if the Subscriber is a juristic person (including a body corporate, partnership or trust (“Juristic Person”); or
5.1.2 a reasonable cancellation penalty, if the Subscriber is an individual.
5.2 The client is required to liaise with a credit controller to make arrangements to pay all outstanding amounts owing on their account. With the written notification of cancellation on one month, 12 months and 24 months contracts, a 30-day calendar month must be allowed for processing.
6 Subscriber’s Obligations
6.1 The Subscriber must keep its username and password confidential and not share it with any other party. If the Subscriber becomes aware that the secrecy of its user name and password has become compromised, it must immediately inform iSPACE.
6.2 The Subscriber is prohibited from allowing any other party access to the service through the Subscriber’s unique username and password.
6.3 The Subscriber may not at any time use the Services in contravention of any South African law or this Agreement and will not use the Services to access any content in violation of the author’s intellectual property rights. In particular, the Subscriber undertakes to familiarise itself and ensure that it is kept continuously appraised of all South African law in force from time to time which has any bearing on the service and/or its use. iSPACE has no obligation to assist the Subscriber in this regard.
6.4 The Subscriber is liable for all of his or her own computer hardware, telecommunications and other connection costs incurred in connecting to iSPACE’s Services, unless included in this Agreement.
6.5 The Subscriber must use the Services in accordance with the Acceptable Use Policy and will not abuse the services or allow any other party to do so. iSPACE reserves the right to modify the Acceptable Use Policy at any time, effective upon posting of the modified Policy to this URL http://ispace.co.za/ispace-acceptable-usage-policy/
6.6 The Subscriber is wholly responsible for any costs, expenses, losses, damages or claims which it or iSPACE may suffer as a result of a breach of clause 6 by the Subscriber and neither it nor any third party will have any claim against iSPACE unless iSPACE’s gross negligence has been the sole cause of the cost, expense, loss, damage or claim. The effect of this clause is that where the Subscriber does not comply with its obligations in terms of this clause 6 and any cost, expense, loss, liability or claim results from that breach the Subscriber will be liable for and will be responsible for making good that cost, expense, loss, liability or claim whether it is suffered by the Subscriber, iSPACE or any third party unless iSPACE’s gross negligence has been the sole cause of the cost, expense, loss, damage or claim.
6.7 If iSPACE reasonably suspects that the Subscriber has breached any of its obligations in clause 6 iSPACE may immediately on notice in the case of a Juristic Person or on 20 business days notice in the case of an individual, terminate this Agreement without prejudice to any other right iSPACE may have in terms of this Agreement or at law.
6.8 Uncapped ADSL – The Protocol Manager is used to provide uncapped users with the best possible internet experience. During peak network times, we give priority to real time services (browsing, email, streaming etc), high bandwidth services such as NNTP, Peer-to-Peer and Torrents (and similar) will receive less priority. In the evening’s when there is less demand on the network, high bandwidth services will receive increased priority which will result in increased throughput speeds compared to peak network times. Any user that is found attempting to bypass or circumvent the Protocol Manager will be suspended and could have their service cancelled.
6.9 Uncapped Premium ADSL – High priority is given for typical business protocols. These business protocols such as VOIP, Terminal Services, Web Browsing and Email are unshaped. We reserves the right, to at its discretion manage non typical business protocols such as NNTP, Peer-to-Peer
7 Confidentiality
7.1 All materials and documentation provided to the Subscriber are confidential and that any unauthorised disclosure may cause harm to iSPACE. Accordingly, the Subscriber will not disclose materials and documentation to any third party without the prior written consent of iSPACE.
8 Warranties and limitation of liability in respect of information
8.1 iSPACE makes only those warranties set out in section 55 of the Consumer Protection Act, where that Act is applicable and subject to clause 3 and no other warranties in respect of the Services whatsoever. (The effect of this clause is that other than as set out in this Agreement or required by the Consumer Protection Act, iSPACE does not make any representations or warranties regarding the performance or any criteria, characteristics or standards of the Services. The Subscriber must satisfy itself as to the suitability of the Services and cannot require iSPACE to meet any other criteria, characteristics or standards.)
8.2 The Services provided by iSPACE relate only to the access to the information and not to the information or data itself. iSPACE does not warrant or guarantee that the information transmitted by and/or available to the Subscriber by way of the Service:
8.2.1 will be preserved or sustained in its entirety;
8.2.2 will be suitable for any purpose;
8.2.3 will be free of inaccuracies or defects or bugs or viruses of any kind.
8.3 Unless gross negligence on the part of iSPACE is the direct cause of any cost, expense, loss, liability, damage or claim suffered by the Subscriber, iSPACE assumes no liability, responsibility or obligations in regard to any of the exclusions in clause 8.2. The effect of this clause is that iSPACE will not be liable for, will not have to pay for or make good or have any obligation in respect of any cost, expense, loss, liability, damage or claim that may arise from any information transmitted and/or made available as a result of the Services and falling within the circumstances in clauses 8.2.1 to 8.2.3. Unless the direct cause was iSPACE’s gross negligence, the Subscriber is precluded from making any claim against iSPACE in these circumstances.
8.4 As a result of iSPACE’s dependency on third party networks and the limitation set out in clause 2, iSPACE cannot and does not warrant Service continuity. The Services are provided on as is when available basis. iSPACE will not be responsible for any costs, expenses, losses, liability or damages that may result from an interruption to the Services caused by third party network services and infrastructure failure, such as the ADSL line or modem. The effect of this clause is that if a third party network, services and infrastructure failure causes a Services disruption, the Subscriber will claim any cost, expense, losses and damages suffered from the third party that supplied those network services and infrastructure and not from iSPACE, unless iSPACE has been grossly negligent and that gross negligence was the cause of the loss or damage contemplated above or is liable in terms of section 61 of the Consumer Protection Act (if applicable). The Subscriber agrees that should iSpace only provide services to the Subscriber, section 61 of the Consumer Protection Act is not applicable.
9 Force majeure
9.1 If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations in terms of this Agreement by reason of any occurrence beyond its control including but not limited storm, strike, lock-out, fire, explosion, floods, riot, war accident, act of God, embargo, legislation, civil commotion, unrest or disturbances, cession of labour, failure of any third party infrastructure, government interference or control, theft (including of cable) or any other cause or contingency beyond the control of that party (“force majeure”), the party affected will be relieved of its obligations in terms of this Agreement or loss or damage either general, special, consequential or indirect, which the other party may suffer due to or resulting from that delay or failure, unless iSPACE is liable in terms of section 61 of the Consumer Protection Act. The Subscriber acknowledges that should iSPACE only provide services to it, section 61 of the Consumer Protection Act is not applicable.
9.2 The effect of clause 9.1 is that if the circumstances contemplated in that section arise, the party whom the circumstances effect does not have to perform the obligations which it is prevented from performing and will not liable for any consequences arising from its failure. It is excused from performance.
9.3 Should the force majeure continue for a period of more than 90 days then either party is entitled to cancel this Agreement in respect of any obligations still to be performed.
10 Exclusion of Liability and Indemnity
10.1 Except as may arise directly from iSPACE’s gross negligence, where iSPACE is liable in terms of section 61 of the Consumer Protection Act, or where this agreement provides differently, iSPACE is not liable to the Subscriber or any third party for any cost, expense, loss, damage or claim of any nature (including consequential, indirect or incidental loss or damage which includes but is not limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) in excess of the charge paid by the Subscriber for the Services over the immediate preceding three month period. The Subscriber agrees that where Services only are provided, section 61 of the Consumer Protection Act does not apply.
10.2 The effect of clause 10.1 is that other than in the listed circumstances iSPACE’s maximum liability to the Subscriber in the aggregate for any cost, expense, loss, liability or damage arising in connection with this Agreement is limited to the charge paid by the Subscriber for the services over the immediately preceding three month period. iSPACE is not liable for and the Subscriber is precluded from making a claim against iSPACE for any amount in excess of this, regardless of what the Subscriber or any other parties actual cost, expense, loss or damage suffered may have been. This clause does not limit any other clause in this Agreement limiting iSPACE’s liability, including clauses that provide that iSPACE is not liable at all.
10.3 The Subscriber indemnifies iSPACE against and holds iSPACE harmless from any cost, expense, loss, liability, damage or claim contemplated in clause 10.1 and 10.2, in excess of the limits provided for in those clauses and/or otherwise arising directly or indirectly out of access to or use of the Service or information obtained through the use of it, whether suffered by the Subscriber or any other party.
10.4 The effect of clause 10.3 is that, unless the cost, expense, loss, liability, damage or claim arises directly from iSPACE’s gross negligence or is within the limits of liability set by clause 10.1 above, not only will iSPACE not be liable but the Subscriber may have to absorb that cost, expense, loss, liability, damage or claim where is it suffered by the Subscriber and/or pay for or make good the cost, expense, loss, liability, damage or claim where is it suffered by a third party.
11 Dispute Resolution
11.1 If a dispute arises between the parties, the parties must meet and attempt to resolve it within five days of declaration of the dispute.
11.2 If the dispute cannot be resolved in terms of clause 11.1, the dispute may be escalated by either party to the most senior executive officer of ISPACE and the Subscriber for attempted resolution within ten business days of referral. If the dispute is not resolved through this referral, the dispute will be resolved by way of arbitration at the instance of either party in terms of the Arbitration Act, 1965.
12 Breach
12.1 Should either Party (Defaulting Party) breach of any of the provisions of this Agreement, then the other party (Aggrieved Party) may give the Defaulting Party 20 days written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party may:
12.1.1 claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; or
12.1.2 cancel this Agreement with written notice to the Defaulting Party where the breach constitutes a material breach;
in either event without prejudice to the Aggrieved Party’s right to claim damages or to exercise any other rights that the Aggrieved Party may have under this Agreement or in law.