Terms of Service / Acceptable Use Policy
Services. NivaCity , through itself and/or any of its affiliates, agrees to provide Customer the services ("Service" or "Service(s)") in accordance with this Agreement. "Service Order" shall collectively refer to any service order(s), authorization form(s) or order form(s) that describes and sets forth the pricing for the Service(s) purchased by Customer. The parties acknowledge that NivaCity’s obligation to provide the Service(s) is subject to its having obtained all of the requisite licenses and consents related thereto.
NivaCity , through itself and/or any of its affiliates, agrees to provide Customer the services ("Service" or "Service(s)") in accordance with this Agreement. "Service Order" shall collectively refer to any service order(s), authorization form(s) or order form(s) that describes and sets forth the pricing for the Service(s) purchased by Customer. The parties acknowledge that NivaCity’s obligation to provide the Service(s) is subject to its having obtained all of the requisite licenses and consents related thereto.
The term of the Agreement shall commence on the Effective Service Date and shall continue thereafter until the expiration of the last expiring Service term, unless earlier terminated in accordance with this Agreement ("Agreement Term"). The term for each Service is set forth in the applicable Service Addendum or Service Order. NivaCity reserves the right to change its rates during any renewal term by notifying Customer at least sixty (60) days in advance of the effective date of such rate change. Service shall automatically renew for successive periods equal to its Service Initial Term unless terminated by either party at least thirty (30) days prior to the then-current date for termination.
3. Billing; Payment.
Billing for each Service shall commence on the Effective Service Date. Customer will be invoiced monthly for all amounts due and owing to NivaCity. All payments are due within the terms specified on the Order Form without set-off or demand. All invoices shall be deemed final and binding unless Customer notifies NivaCity in writing of any alleged discrepancies no later than thirty (10) days from the date of such invoice(s). All payments required by this Agreement are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes and other fees and levies, all of which Customer shall be responsible for and will pay in full, other than taxes based on the NivaCity net income. Customer will be deemed to be in default hereunder if payment is not received within the terms specified on the Order Form and, in addition to its other remedies, NIVACITY may charge Customer interest equal to 1 1/2% per month on any amount past due. In the event NIVACITY is unable to deliver the Service(s) due to any reason, issue or delay caused either directly or indirectly by the Customer or its agents, such Service(s) shall be deemed delivered and NIVACITY shall commence billing when NIVACITY is ready to deliver such Service(s).
4. Cancellation; Refunds.
Cancellations must be submitted in the client portal via the request cancellation link. All cancellations must be (7) Days prior to service renewal date. Requests for refunds are governed by our Money back Guarantee which is 14 days for Shared Hosting , Virtual Servers (Xen / OpenVZ) and 7 Days for Dedicated Servers. Refunds are limited to one (1) refund request per customer account. No refunds will be honoured for domain registrations & ssl certificates
Any charge backs / disputes (any payment processor we use) without contacting us first will result in the immediate cancelation / termination of your product / service. Before taking such a decision, do talk with our accounts departments to settle your issue first .
Customers who have violated our terms of service and acceptable use policy are not entitled to a refund.
5. Compliance with Laws and Acceptable Use.
A. NIVACITY'S network and Service(s) may only be used in accordance with the Agreement. Customer and its customers and end-users will comply at all times with all applicable laws and regulations, NIVACITY'S operating procedures, and NIVACITY'S Acceptable Use Policy located on its website at http://www.NivaCity.com/tos-aup.php ("AUP"). NIVACITY reserves the right to monitor Customer's activity for internal network utilization and reliability purposes. NIVACITY'S utilization and reliability monitoring does not include examination of Customer data unless (i) such examination is deemed necessary to troubleshoot a Customer issue, and the Customer consents to such examination; or (ii) such examination is pursuant to any judicial order, search warrant, or statutory requirement, in which event NIVACITY shall provide notice thereof to Customer, to the extent that the judicial order, search warrant, or statutory requirement permits said notice. Any monitoring by NIVACITY is subject to the confidentiality provision set forth in this Agreement. Customer acknowledges that NIVACITY exercises no control whatsoever over the content (any and all content of Customer or Customer's end users and/or customers, including but not limited to data, text, multimedia images (e.g. graphics, audio and video files), software, applications, or other materials, or any content shared or processed on equipment under the control of NIVACITY on behalf of Customer (collectively "Content")), and that it is the sole responsibility of Customer to ensure that the information and Content it and its end-users and/or customers transmit, receive, or use complies with the AUP and all applicable laws and regulations.
B. Customer shall not use the Service(s) in a fraudulent manner or in a manner that violates the AUP or any applicable law or regulation, or otherwise exposes NIVACITY to legal liability, whether this use is by Customer or any other entity or person using the Service(s) and whether or not this use is authorized or consented to by Customer (each such circumstance, "Service Misuse"). This includes, but is not limited to, material in violation of a copyright, material legally judged to be threatening or obscene, material protected by trade secret or material that is otherwise deemed to be proprietary or judged by NIVACITY to be inappropriate or improper, such as unsolicited commercial e-mail messages.
C. NIVACITY may suspend or block access to a Service or all Services (each such circumstance, a "Service Suspension") without notice for any of the following reasons: (a) to comply with any law, regulation, court order, or other governmental request or order requiring immediate action; (b) to prevent interference with, damage to, or degradation of NIVACITY'S network; (c) to eliminate a hazardous condition; or (d) Service Misuse. Customer shall not be relieved of its payment obligations hereunder during any period of Service Suspension.
D. Notwithstanding Section 4(C) above, NIVACITY reserves the right to immediately terminate the Services or Agreement in the event that NIVACITY becomes aware that Customer, or other persons making use of Customer's Services are in breach of this Section.
6. DISCLAIMERS OF WARRANTY.
A. THE SERVICE(S) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND NIVACITY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICE(S), SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THROUGH USE OF THE SERVICE(S), SOFTWARE OR EQUIPMENT. NIVACITY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTIBILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. USE OF ANY INFORMATION OBTAINED THROUGH THE USE OF NIVACITY'S NETWORK IS AT CUSTOMER'S OWN RISK. NIVACITY SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICE(S).
B. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE, INTERRUPTION OR DEFICIENCY OF SERVICE(S) OR FAILURE BY NIVACITY TO MEET THE TERMS OF AN APPLICABLE SLA, SHALL BE THE REMEDIES PROVIDED IN THE SLA; PROVIDED THAT ANY REMEDIES OR CREDITS CONTAINED IN THE SLA ARE NOT AVAILABLE FOR OUTAGES, INTERRUPTIONS OR DEFICIENCIES OCCURRING DURING ANY PERIOD IN WHICH CUSTOMER'S ACCOUNT HAS A PAST DUE BALANCE OR THE CUSTOMER IS OTHERWISE IN BREACH OF THE AGREEMENT. NIVACITY, ITS SERVICE PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER LIABILITIES OR REMEDIES FOR SUCH OUTAGES, INTERRUPTIONS OR DEFICIENCIES OF SERVICE.
C. NIVACITY DOES NOT AND CANNOT CONTROL THE PERFORMANCE OF ANY DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY THIRD PARTIES. AT TIMES ACTION OR INACTION BY THIRD PARTIES CAN IMPAIR OR DISRUPT NIVACITY'S SERVICE(S). NIVACITY MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY ANY THIRD PARTY, INCLUDING THE PROVIDERS OF TELECOMMUNICATIONS OR NETWORK PRODUCTS OR SERVICES. SUCH DATA, PRODUCTS, AND SERVICES ARE NOT PROMISED TO BE FREE OF ERROR OR INTERRUPTION, AND NIVACITY, ITS SERVICE PROVIDERS AND SUPPLIERS EXPRESSLY DISCLAIMS ALL LIABILITIES ARISING FROM ANY SUCH ERROR, INTERRUPTION, OR OTHER FAILURE. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF NIVACITY, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY NIVACITY, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN AN APPLICABLE SLA.
A. Termination by NIVACITY. NIVACITY may terminate this Agreement immediately upon notice upon default by Customer. Default includes
(a) the failure by Customer to (i) pay any amounts when due; (ii) comply with Section 4 Compliance with Laws and Acceptable Use; or (iii) perform any material obligation under this Agreement which failure is not remedied within thirty (30) days after receipt of written notice from NIVACITY (unless a shorter notice period is expressly set forth in the Agreement, in which case the shorter notice period shall apply); or
(b) Insolvency (as hereinafter defined). If NIVACITY terminates this Agreement for any of the aforementioned reasons, all of the following shall be immediately due and payable by Customer: (a) the cumulative total of the balance of all monthly charges remaining on this Agreement through the end of the applicable Service Term(s); and (b) any charges accrued but unpaid as of the effective date of termination. Customer acknowledges that the amounts payable pursuant to the preceding sentence are equitable compensation to NIVACITY and are intended to reasonably compensate NIVACITY for the losses which are occasioned by Customer's failure to honor Customer's obligations hereunder. As used herein, "Insolvency" shall refer to any one of the following events: (i) Customer files a voluntary petition in bankruptcy or an involuntary petition is filed against Customer; (ii) Customer is adjudged bankrupt; (iii) a court assumes jurisdiction of the assets of Customer under federal reorganization act; (iv) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of Customer; (v) Customer becomes insolvent or suspends business; or (vi) Customer makes an assignment of its assets for the benefit of its creditors. Termination by NIVACITY shall not preclude NIVACITY from pursuing any other rights or remedies available to it, at law or in equity.
Routine maintenance and periodic system repairs, upgrades, and reconfigurations may result in temporary impairment or interruption in Service(s). As a result, NIVACITY does not guarantee continuous or uninterrupted Service(s) and reserves the right from time to time to temporarily reduce or suspend Service(s) without notice subject to the terms and conditions of the applicable SLA.
Customer shall indemnify, defend and hold NIVACITY, its affiliates, officers, directors, licensees, licensers, and vendors harmless from any and all claims, losses, damages and expenses, including, without limitation, reasonable attorney's fees and court costs, or liabilities arising from or related to (i) Service Misuse or a violation of any other provision of this Agreement; (ii) any claim of infringement of any intellectual property or other proprietary interest based on the possession or use of any Service(s), software or equipment furnished to Customer or Customer's end-user(s) and/or customer(s); (iii) any claim that Content, or the manner in which Customer or Customer's customer(s) and/or end user(s) make use of the Service(s), constitutes an infringement of any patent, copyright, trademark, trade secret, or other right of any third party; (iv) any acts or omissions of Customer, its employees, agents, contractors, invitees, licensees, visitors, and/or customer/end-users; and/or (v) any injury or damage to the person, property, or business of NIVACITY, its employees, agents, contractors, invitees, licensees, visitors, and/or customer(s)/end-user(s).
10. Governing Law.
This Agreement shall not become a binding obligation of NIVACITY until it has been executed by an officer of NIVACITY. The parties agree that any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of South Africa, except for its principals for resolving conflicts of law. The parties agree that any disputes arising under this Agreement shall be resolved in the state or federal courts of the Republic of South Africa.
Customer may not assign this Agreement or any portion hereof without NIVACITY'S prior written consent, which consent shall not be unreasonably withheld, provided that Customer may assign this Agreement or a portion thereof (i) in the event of a merger in which the party is not the surviving entity; (ii) in the event of a sale of all or substantially all of its assets; or (iii) to any party that controls, is controlled by or is in common control with such party (provided further that in the event of an assignment to any such party by Customer, the assignee must be of equal or better creditworthiness as Customer, as determined by NIVACITY in its sole discretion). Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
12. Limitation on Liability.
A. IN NO EVENT SHALL NIVACITY, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTION HOWEVER CAUSED ARISING FROM OR RELATED TO THE SERVICE(S) OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER NIVACITY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. THE TOTAL AGGREGATE LIABILITY OF NIVACITY AND ITS SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY NIVACITY FOR THE AFFECTED SERVICE WHICH GIVES RISE TO SUCH LIABILITY IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. The foregoing sets forth Customer's exclusive remedy for breach of this Agreement by NIVACITY. For certain Service(s), NIVACITY licenses certain software from third parties for use with such Service(s). The liability of such third party suppliers for damages, whether direct, indirect, incidental, special, punitive or consequential arising from use of the software and hardware, shall be disclaimed and limited to the maximum extent permitted by law.
B. Customer acknowledges and agrees that in no event shall NIVACITY be liable for any damages, whether in contract or tort, including, but not limited to, direct, consequential (including without limitation loss of profits), cost of substitute goods, special, exemplary, incidental and indirect damages, arising out of compliance or reasonable attempts to: (i) comply with the South African Copyright Act, 1978 (Act No. 98 of 1978) , but not limited to any actions by NIVACITY that result in a disruption or suspension of the Service(s).
C. The parties acknowledge that the limitations referenced in this section are material terms to this Agreement. Customer acknowledges that NIVACITY has set its prices, and other charges in reliance on the foregoing limitations of liability, which form an essential basis of the bargain between the parties.
13. Confidential Information.
A. Unless required to release by a law or court or government order, in which case the disclosing party will give as much notice as reasonably possible unless such order explicitly restricts such notification, or unless such information is already publicly available, neither party shall disclose any of the terms and conditions of this Agreement nor any non-public information (collectively "Confidential Information") without the prior written consent of the other party hereto. Notwithstanding the foregoing, each party may disclose Confidential Information to any consultants, contractors, and counsels on a need to know basis and have executed a reasonably protective non-disclosure agreement with the disclosing party.
B. In performing its duties under this Agreement, NIVACITY may receive or have access to, from or through Customer, personal data. NIVACITY shall not disclose or use the personal data for any reason other than as necessary to carry out its duties and responsibilities under this Agreement or as required by law.
C. In the event the receiving party commits a breach of, or threatens to commit a breach of, this Section 12, the disclosing party shall have the right to seek injunctive relief as may be ordered or awarded by a court of competent jurisdiction.
Except for additional Service(s) to be ordered by a Service Order and/or Service Addendum, this Agreement may be modified only by a written instrument executed by both parties.
Any notice required to be given hereunder shall be in writing and shall be deemed to have been delivered when deposited in the South African mail (registered or certified mail), return receipt requested, with adequate postage affixed, or delivered to a national overnight courier service and addressed to the persons set forth herein. Notice for monetary default may be sent by e-mail, facsimile, or other written format.
NIVACITY (PTY) Ltd.
Attention: Legal Notifications
315 York House Lofts
45 Kerk Street Johannesburg 2000
To the address listed on the Order Form
16. Force Majeure.
Except for the obligation to make payments for Service(s) rendered, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, acts of government, failure of the Internet, terrorist acts, failure of third party(ies), utility power failure, or failure of communication lines.
In the event any portion of this Agreement is held to be unenforceable, the unenforceable portion shall 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 shall remain in full force and effect.
NIVACITY'S failure to insist upon or to enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
a) NIVACITY reserves the right to terminate the Agreement or any affected Service Addendum upon notice to Customer in the event that (i) NIVACITY cannot maintain, despite reasonable efforts to do so, its regulatory approval necessary to provide the Service(s) and/or enter into this Agreement; and (ii) NIVACITY'S underlying vendor is unable or unwilling to provide some or all of the Service(s) required for NIVACITY to continue this Agreement.
b) Any cause of action Customer may have with respect to the Service(s) shall be barred unless it is commenced within six (6) months of the earlier of (i) the effective date of expiration or termination of this Agreement; or (ii) the date after the claim or cause of action arises.
c) The following provisions will survive any expiration or termination of this Agreement: Indemnity (Customer's indemnity of NIVACITY); Ownership of Intellectual Property; Confidential Information; Disclaimers of Warranties; Limitation on Liability; Governing Law; Payment; and Miscellaneous.
20. Third Party Beneficiaries.
The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any third party, including without limitation, Customer's end users.
In the event of a conflict between or among the terms in this Agreement, the Service Order(s), the Service Addenda, and any other document made a part hereof, the documents shall control in the following order unless otherwise specifically set forth in a Service Addendum: the Service Order with the latest date, the AUP, the Service Addendum, this Agreement.
Customer shall not use, in advertising or publicity or in any way related to this Agreement or the subject matter hereof, the name of NIVACITY, its affiliates or any of its directors, officers, managers, employees, consultants or agents or any trade name, trademark, service mark, logo or symbol of NIVACITY or its affiliates, except with the express prior written consent of NIVACITY. NIVACITY may disclose as part of its promotional activities the fact that Customer is obtaining Service from NIVACITY.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original for all purposes hereof. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby and supersedes any other prior or simultaneous agreement related to such matters.