Hosting Agreement

  1. This is an agreement between THE CLIENTand Discover247 (Pty) Ltd(hereafter referred to as Yellohost) regarding the client’s use of Yellohost’s Hosting Services. This Agreement governs the terms and conditions under which Yellohost makes the services offered by Yellohost available to individual consumers through a personal computer or similar access, or to individual consumers or small businesses in connection with the “Yellohost” Web Hosting or similar services.
  2. Yellohost will host an account for the client, the purchaser, for the client’s chosen package, for the period (the Term) corresponding with the payment plan chosen by the client. All accounts are subject to verification.
  3. The client acknowledges that the nature of the service furnished, and the initial rates and charges have been communicated to the client. The client is aware that Yellohost reserves the right to change the specified rates and charges from time to time.
  4. Clients are entitled to upgrade/downgrade their service at any time during the Hosting Period. No refunds of fees paid will be given in the event of an early downgrade of service.
  5. This contract will be renewed at the end of the term and each successive renewal term, unless terminated. The client will be Invoiced at least twenty one (21) days prior to the renewal date.
  6. Should the client decide not to renew and wishes to cancel the service, Yellohost requires notice prior to the Due Date indicated on the Invoice. The client must have all account information available to cancel. If the client does not provide this notice, the client will be charged for the next terms rate. There are no refunds on a la carte services.
  7. If the client’s account becomes overdue, the account will be suspended.
  8. In the event of five (5) days of non-payment, the client agrees to Yellohost’ right to place a “suspension” notification on the client’s domain. Furthermore, the client agrees that the DNS of the client domain will remain unchanged until full payment for the outstanding balance on the client account has been received by Yellohost. A R165.00 re-connection Fee will be due on all suspended services.
  9. If the client’s account is overdue for thirty (30) days, the account will be terminated, and all associated site files will be deleted from the server.
  10. Should the client’s account exceed its allotted resource limits (such as, but not limited to bandwidth or disk space) additional fee’s will be applied. Full responsibility for any excess resources generated by an account is assumed by the client. Clients who exceed the allocated disk space or bandwidth allocation will be notified in writing to upgrade services to the next package level. Clients’ failure to respond to this notification within seventy two (72) hours of the first notification may result in an automatic upgrade in services.
  11. Yellohost’s services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Yellohost will strive to maintain an uptime on all services equal to or better than 99.9% of overall expected service delivery time. Yellohost expressly disclaims any representation or warranty that Yellohost’s services will be error-free, secure or uninterrupted. No oral advice or written information given by Yellohost, its employees, licensors of the like, will create a warranty; nor may the client rely on any such information or advice. The terms of this section will survive any termination of this Agreement.
  12. Clients are solely responsible for backing up their data and Yellohost strongly encourages ALL Hosting Clients to do so as frequently and completely as possible. Yellohost will not be liable for any data loss or any other losses or damages related to backups or data recovery without exception. Clients are ultimately responsible for their own data, and Yellohost strongly encourages such Clients to continue to make their own backups as frequently and completely as possible to ensure that they have recourse in the event of any failure. Yellohost also cannot guarantee the condition or fitness of any backups provided. Such backups are provided “as is” and are used at the Client’s own risk and discretion – whether restored by Yellohost by instruction from Clients or by Clients themselves. Yellohost will not be liable for any losses or damages relating to any incidents arising out of such backups being provided (or not provided) to Clients on request.
  13. The hosting service and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Further, the client agrees not to store, transmit, link to, advertise or make available any images containing pornography. Violations of these or any other provisions of this Agreement may result in termination of the services provided by Yellohost, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of Yellohost based upon the severity of the violation. Yellohost reserves the right to refuse service if any of the content within, or any links from, the client’s website(s) is deemed illegal, misleading, or obscene, or is otherwise in breach of Yellohost’s then current Acceptable Use Policy, in the sole and absolute opinion of Yellohost. Notwithstanding anything in this Agreement, the content of the client’s website(s) is the sole responsibility of the client. The client agrees to indemnify and hold harmless Yellohost from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney’s fees, costs, and other expenses incurred by Yellohost, (collectively, Claims) related to or in connection with the content of the client’s website. The terms of this Section will survive any termination of this Agreement.
  14. The client agrees to follow generally accepted rules of “Netiquette” when sending e-mail messages or any other electronic communication from the services hosted by Yellohost.
  15. Clients are solely responsible for the setup, upkeep and maintenance of any/all devices used to connect to the hosting server. Desktop Support of email clients eg. Microsoft Outlook, Mac Mail, Mozilla Thunderbird or emClient does not fall within the scope of the hosting services we offer. Should the client need assistance with the setup and maintenance of their devices, the client should then consult with a Desktop Support Technician to assist.
  16. Yellohost will not change passwords to any account without proof of identification, which is satisfactory to Yellohost, which may include written authorization with signature. The responsibility of all passwords and other related sensitive information is assumed by the client, should any additional fees arise from resource consumption due to poor credentials (such as, but not limited to blank passwords or “test” accounts) no fault shall be levied on Yellohost.
  17. In the event of any partnership break-up, divorce or other legal problems that includes the client, the client understands that Yellohost will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Yellohost be liable for any losses incurred by the client during this time of determination of ownership, or otherwise. The client agrees to indemnify and hold harmless Yellohost from any and all Claims arising from such ownership disputes. The terms of this Section will survive any termination of this Agreement.
  18. The client agrees not to harm Yellohost, its reputation, computer systems, programming and/or other persons using Yellohost’s services. Yellohost reserves the right to select the server and/or services required for the client’s website for best performance. The client understands that the services provided by Yellohost are provided on a shared server. This means that one website cannot be permitted to overwhelm the server with heavy CPU usage. If the client’s website overwhelms the server and causes complaints from other users, the client will have outgrown the realm of shared servers and will need to relocate/upgrade its website. Yellohost will refund any unused portion of prepaid services. If the client refuses to comply with this Section, then Yellohost has the right to terminate the services provided to the client without any refunds of the unused portion prepaid by the client. The client agrees to indemnify and hold harmless Yellohost and any other client from any and all Claims resulting from the client’s use of the services provided by Yellohost. The terms of this Section will survive any termination of this Agreement.
  19. If the client sells or resells advertising or web space to a third party, then the client will be responsible for the contents of that advertising and the actions of that third party. Yellohost has the absolute right to reject any advertising or other third-party content that is illegal, offensive or otherwise in breach of the then current Yellohost Acceptable Use Policy. If the client refuses to remove any advertising or other third-party content deemed objectionable by Yellohost, Yellohost may terminate the services being provided to the client.
  20. The e-mail distribution by the client of “SPAM”, “JUNK MAIL”, or “UNSOLICITED COMMERCIAL E-MAIL”, is expressly prohibited.
  21. Yellohost will use its best efforts to maintain a full time Internet presence for the client. The client hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall Yellohost be liable to the client for any damages resulting from or related to any failure or delay of Yellohost in providing access to the Internet under this Agreement. In no event shall Yellohost be liable to the client for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of Yellohost under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the client hereunder. The terms of this Section will survive any termination of this Agreement.
  22. This Agreement applies to all accounts, sub-accounts, and alternative account names associated with the client principal account. The client is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. Any Yellohost account may not be transferred without prior written approval from Yellohost. The client is responsible for maintaining the confidentiality of his/her password. In the event of a breach of security through the client’s account, the client will be liable for any unauthorized use of Yellohost services, including any damages resulting there from, until the client notifies Yellohost’ customer service.
  23. If Yellohost assigns the client an Internet Protocol address in connection with the client’s use of the Yellohost services, the right to use that Internet Protocol address will remain with and belong only to Yellohost, and the client will have no right to use that Internet Protocol address except as allowed by Yellohost in its sole and absolute discretion.
  24. The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation and with a problem-solving mind set, without formal proceedings. Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in South Africa. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.
  25. The client agrees to indemnify and hold Yellohost harmless from any and all Claims resulting from or connected with any activities conducted by the client. The client and Yellohost will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement.
  26. Yellohost may include the client’s name and contact information in directories of Yellohost’s service subscribers for the purpose promoting the use of the services by additional potential clients. However, Yellohost is not authorized to print the client’s name, trademarks or other identifying information in any other advertising or promotional materials without the prior written consent of the client.
  27. Because the Internet is a global communication tool, and we have clients from nearly every country in the world it is difficult to dictate what is considered “adult material.” However, it is not our function to discriminate against those who choose to utilize adult content or adult related material.
  28. The client agree that Yellohost may establish limits concerning use of any Yellohost service offered on any Yellohost web site, including without limitation the maximum number of days that e-mail messages will be retained by any Yellohost service, the maximum number of e-mail messages that may be sent from or received by an account on any Yellohost service, the maximum size of an e-mail message that may be sent from or received by an account on any Yellohost service, the maximum disk space that will be allotted on Yellohost’ servers on the client behalf either cumulatively or for any particular service. The client agrees that Yellohost has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Yellohost service. The client acknowledges that the features, parameters (for example, the amount of storage available to users) or existence of any Yellohost service may change at any time.
  29. The client’s rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of Yellohost.
  30. The interpretation and enforcement of this Agreement shall be governed according to the laws of the Republic of South Africa (excluding its choice of law rules). The client hereby consents to personal jurisdiction in the federal and provincial courts of South Africa for any action arising out of or relating to the client’s use of the Yellohost services. The federal and provincial courts of South Africa will have exclusive jurisdiction over all such actions. In any such action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees. The terms of this Section will survive any termination of this Agreement.
  31. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities indicated below, or as specified by subsequent written notice delivered by the party whose address has changed.
  32. This Agreement constitutes the entire agreement between the client and Yellohost with respect to the Yellohost services and supersedes all prior agreements between the client and Yellohost. Yellohost’s failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. The terms of this Section will survive any termination of this Agreement.

 

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