1.1 Unless the context clearly indicates the contrary, any term defined in the General Terms and Conditions when used herein, shall bear the same meaning as defined in the General Terms and Conditions.
1.2 Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto-
1.2.1 “24 Hour Reboot Service” means the additional Server Hosting service, Customer can subscribe to at additional Service Fees, as contemplated in clause 8.10;
1.2.2 “Customer Server” means the file server comprising of computer hardware/machinery/equipment which is either supplied by Customer or rented to Customer by Novicus Systemsin accordance with the Equipment Rental Product Terms;
1.2.3 “Data Traffic” means any data traffic originating from the Server to the Internet and packets originating from the Internet to the Server;
1.2.4 “Location” means MWEB Business’ data centre situated at The Internet House, Greenacres Office Park, cnr Barry Hertzog/Rustenburg Roads, Victory Park, Johannesburg, Gauteng and/or any other address indicated by MWEB Business from time to time;
1.2.5 “Novicus Systems Server” means the file server comprising of computer hardware/machinery/equipment which is rented to Customer by Novicus Systems in accordance with the provisions of clause 5 below;
1.2.6 “Professional Management and Back–Up” means the additional Server Hosting service to which Customer can subscribe at additional Service Fees, more fully set out in clause 9;
1.2.7 “Server” means either the Novicus Systems Server or Customer Server;
1.2.8 “Server Hosting” means the Services contemplated in these Product Terms which Novicus Systems renders to Customer in accordance with Customer’s selection as indicated on the Application Form under such heading or description whereby: (i) Novicus Systems hosts the Server at the Location; and (ii) supplies such ancillary/additional Server Hosting services, as selected by Customer in the Application Form;
1.2.9 “Operating Software” means: software that controls basic, low-level Server hardware operations, and file management, without the user thereof having to operate it or application software, purchased from Novicus Systems or rented to Customer by Novicus Systems, as selected by the Customer and indicated on the Application Form. Such purchase or rental is additional to the Server Hosting Service to which additional Service Fees apply;
1.2.10 “SPLA Software” means software owned by Microsoft Corporation and supplied to Novicus Systems by Microsoft Corporation in accordance with the provisions of the Service Provider Licence Agreement (“SPLA”), which SPLA Software is rented to Customer by Novicus Systemsin accordance with the provisions of these Product Terms. Such rental is an additional Server Hosting service to which additional Service Fees apply.
Customer shall pay Novicus Systems the services fees specified in the Application Form in accordance with the provisions set out in the General Terms and Conditions.
3. TERMS AND CONDITIONS SPECIFIC TO SERVER HOSTING
3.1 In order for Novicus Systems to provide Server Hosting, the following are required:
3.1.2 Operating Software; and
3.1.3 SPLA Software;
3.2 The Server will be housed at the Location. Customer shall under no circumstances be entitled to remove the Server from the Location irrespective of whether such Server is: (i) a Customer Server; or (ii) Novicus Systems Server; without Novicus Systems’ authority.
3.3 Novicus Systems will provide Server Hosting Services to Customer in accordance with the Server Hosting product selected by Customer in the Application Form which products are dealt with in clauses 4 and 5 below.
3.4 Novicus Systems is not responsible for the backing-up of any of the data on the Virtual Servers. All back-ups are the responsibility of the Customer.
3.5 The following conditions apply on a per hosted server basis (whether physical or virtual) for Server Hosting products provided with an uncapped traffic allowance, the Uncapped Traffic only forms part of the following products:
• Server Hosting Lite
• Server Hosting Basic
• Server Hosting Standard
• Server Hosting Advanced
All other server hosting offerings will have traffic usage charges as part of the service.
3.5.1 The peak outbound traffic rate to the internet will be limited to 100Mbps, and the peak inbound traffic rate from the internet will be limited to 10 Mbps;
3.5.2 The peak outbound and inbound rates specified in 3.5.1 do not constitute a sustained throughput guarantee, only an upper limit. Actual throughput will be determined by prevailing network conditions influenced by such factors as time of day and the external networks being communicated with.
3.5.3 The outbound traffic usage for any particular calendar month must exceed that of the inbound traffic usage of the same month.
3.5.4 The service shall not be used for the purposes of bulk downloading from the Internet by using the hosted server as a traffic proxy or tunnel relay
3.5.5 Failure to comply with 3.5.3 or 3.5.4 shall constitute a breach of the server hosting services with an uncapped traffic allowance.
3.5.6 Should the conditions specified in 3.5.3 or 3.5.4 not be rectified in the month subsequent to notification by Novicus Systems, Novicus Systems reserves the right to terminate the service unconditionally.
4. CO-LOCATED SERVER HOSTING (IF SELECTED IN THE APPLICATION FORM)
4.1 If the Server is provided by Customer:
4.1.1 he/she/it will deliver the Server to the Location at its own cost;
4.1.2 he/she/it will be responsible for the set-up and configuration of the Server;
4.1.3 Novicus Systems will not be responsible for the Server including maintenance, repair, virus protection, upgrades, updates, security updates/patches or the like;
4.1.4 all risk of loss, damage and/or destruction of or to the Server whilst housed at the Location shall remain vested in Customer, and Customer shall make its own arrangement regarding the insurance thereof;
4.2 Customer warrants and represents that it is the owner of the Server and/or that it has the right to be in possession of the Server. Novicus Systems shall not be liable for and Customer indemnifies Novicus Systems against any claim or losses incurred by Novicus Systems as a result of Customer’s breach of the aforementioned warranty.
4.3 The Server or any other equipment in Novicus Systems’ possession, which relates to Server Hosting, shall be held by Novicus Systems as security for the Customer’s fulfillment of all its obligations with regard to Server Hosting Services.
4.4 Novicus Systems shall be responsible for the installation of the Server at the Location, which installation shall include the following:
4.4.1 allocation of dedicated rack space for the Server in accordance with the Customer’s selection in the Application Form;
4.4.2 allocation of an IP Address and/or additional IP Addresses (if selected on the Application Form) for the Server to: (i) enable a connection from the Server to Novicus Systems’ network; and (ii) enable and facilitate the transmission of Data Traffic as well as the provision of the relevant IP Address information (including IP gateway’s, DNS servers and subnet information) and Customer Identifiers to Customer;
4.4.3 provisioning the amount of Internet bandwidth for the purposes of clause 4.4.2, in accordance with Customer’s choices in the Application Form; and
4.4.4 configuration of a unique VLAN (Virtual Local Area Network).
4.5 Except if otherwise stated, Novicus Systems shall grant Customer access to the Server either remotely or at the Location and Customer agrees to (without limiting the applicability of the provisions of the Agreement), subject himself/herself/itself to Novicus Systems’ security policies and/or its occupational health and safety rules.
4.6 Novicus Systemswill use reasonable endeavours to provide a smooth, uninterrupted electrical power supply to the Server. Other than as specifically provided in these Product Terms, Novicus Systems will not be liable for any loss or damage as a result of any interruption in the electrical power supply.
5. SERVER HOSTING PACKAGES ( IF SELECTED IN THE APPLICATION FORM)
5.1 Novicus Systems will in accordance with the Server Hosting Package selected by Customer lease the Novicus Systems Server to Customer who accepts such rental. The Novicus Systems Server will at all times remain the property of Novicus Systems.
5.2 Novicus Systems shall be responsible for the sourcing, delivery and installation of the Novicus Systems Server at the Location on Customer’s behalf. Installation shall include the following:
5.2.1 configuration of the Novicus Systems Server in accordance with the specifications agreed upon by the Parties. For that purpose, Customer agrees to supply Novicus Systems with all the relevant information and co-operation required to configure the Novicus Systems Server. For the avoidance of doubt, Customer acknowledges and agrees that “configuration” as used herein shall not include software installation and/or configuration;
5.2.2 allocation of dedicated rack space for the Novicus Systems Server;
5.2.3 allocation of an IP Address and/or additional IP Addresses (if selected on the Application Form), for the Novicus Systems Server in order to: (i) enable a connection from the Novicus Systems Server to Novicus Systems’ network, and (ii) to enable and facilitate the transmission of Data Traffic as well as the provision of the relevant IP Address information (including IP gateway’s, DNS servers and subnet information), and Customer Identifiers to Customer;
5.2.4 provisioning the amount of Internet bandwidth for the purposes of 4.4.2, as specified in the Application Form. It is specifically acknowledged and agreed that the bandwidth supplied is not dedicated to the Novicus Systems Server and/or Customer, but may be shared with other customers of Novicus Systems; and
5.2.5 configuration of a unique VLAN (Virtual Local Area Network).
5.3 Where appropriate, the Novicus Systems Server may be covered by the vendor’s standard warranties and guarantees. Customer shall not engage in any action, which contravenes or voids the vendor’s terms of warranty or guarantee. In the event that Customer engages in any action which contravenes or voids the vendor’s warranty, Customer shall bear the costs of any repairs, replacement of or extended warranties or guarantees regarding the Novicus Systems Server.
5.4 Except if otherwise stated, Novicus Systems shall grant Customer access to the Novicus Systems Server either remotely or at the Location and Customer agrees to (without limiting the applicability of the provisions of the Agreement), subject himself/herself/itself to Novicus Systems’ security policies and/or its occupational health and safety rules.
5.5 Novicus Systems will use reasonable endeavours to provide a smooth, uninterrupted electrical power supply (UPS) to the Novicus Systems Server. Other than as specifically provided in these Product Terms, Novicus Systems will not be liable for any loss or damage as a result of any interruption in the power supply.
6. OPERATING SOFTWARE (IF SELECTED IN THE APPLICATION FORM)
6.1 Novicus Systems shall (except where Customer supplied and installed the Operating Software), supply and install the Operating Software in accordance with the specifications agreed upon by the Parties. For that purpose Customer agrees to supply Novicus Systems with all the relevant information and co-operation required to enable Novicus Systems to perform the installation.
6.2 The Operating Software is provided by Novicus Systems in accordance with the inherent software license agreement attached to the applicable Operating Software and subject to the provisions of this clause 6. Customer will acquire such rights to the Operating Software, as allowed by such licensors/licenses.
6.3 Novicus Systems will in its sole discretion, and without being under any obligation to do so, maintain and/or upgrade the Operating Software supplied and installed in terms of clause 6.1, which will include any patches, updates, security updates/patches of whatever nature. Customer herewith authorises Novicus Systems to implement any of the above, as and when it deems fit. Although Novicus Systems will use its reasonable endeavours not to affect server hosting or the hosting of any content, application, and/or data of whatever nature Novicus Systems, without limiting the generality of the general terms, expressly disclaims any direct, indirect, incidental, special, punitive or consequential losses or damages which arise or may arise out of such maintenance and/or upgrades.
6.4 Novicus Systems will not be responsible for any software and/or applications not supplied and installed by it, including the licensing thereof (hereinafter referred to as “Unsupported Software”).
6.5 Customer agrees that any Unsupported Software contemplated in clause 6.4 required and loaded, if allowed, by Customer on the Customer Server or Novicus Systems Server will be its own responsibility and is loaded at its sole risk and responsibility. The licensing of all such installed Unsupported Software shall be the sole responsibility of Customer. All Unsupported Software shall be licensed in accordance with the vendor’s software and/or application license agreements. Novicus Systems retains the right to carry out routine checks to validate such software license agreements.
6.6 Customer will be solely responsible for all the maintenance and/or upgrades of the Unsupported Software, which will include any patches, updates and security updates/patches of whatever nature installed in terms of clause 6.5.
7. SPLA SOFTWARE (IF SELECTED IN THE APPLICATION FORM)
7.1 Novicus Systems shall:
7.1.1 rent the SPLA Software to Customer in accordance with the provisions of the Microsoft End User Licence terms as set out in clause 10 below and the Server Hosting Product Terms;
7.1.2 only install the SPLA Software on the Computer System if Customer has selected this option in the Application Form;
7.1.3 manage the maintenance and upgrade of the SPLA Software on Customer’s behalf.
7.2 Customer shall use of the SPLA Software shall be in accordance with the provisions of clause 10 below.
7.3 SPLA Software is never owned by Customer, but licensed to Customer for the duration of Server Hosting Product Terms through an arrangement that Microsoft Corporation has with Novicus Systems.
7.4 Customer furthermore agrees to be bound by the terms and conditions related to the SPLA Software, which are contained in clause 10 below.
7.5 Upon termination of the Server Hosting Services, Novicus Systems shall prior to the removal of the Server from the Location by Customer, format the Server in order to remove the SPLA Software from the Server failing which, Customer shall remain directly liable to Novicus Systems and/or Microsoft Corporation for all damages suffered by Novicus Systems and/or Microsoft as a result of illegal and/or unauthorized usage of the SPLA Software.
7.6 Where Novicus Systems is not installing and managing the SPLA Software on Customer’s behalf, Customer shall indemnify and hold Novicus Systems and Microsoft harmless from any claims arising as a result of: (i) improper installation of the SPLA Software on the Computer System; (ii) any software virus introduced by Customer; (iii) Customer’s including his/her/its employees, agents and/or contractor’s breach of the provisions of this Agreement; (iv) unauthorised installation, use, access, copying, reproduction and/or distribution of the SPLA Software. In addition, Customer shall be liable to Novicus Systems and/or Microsoft Corporation for all damages, costs and expenses, including reasonable attorneys fees, resulting from Customer’s including his/her/its employees, agents and/or contractor’s continued distribution of an allegedly infringing SPLA Software after Novicus Systems has notified Customer to stop.
8. SERVICE LEVEL AGREEMENT
8.1 Novicus Systems will provide Customer with Server Hosting set out herein in accordance with this Service Level Agreement (“Service Level Agreement”).
8.2 Novicus Systems will maintain an average of 99% service uptime over a consecutive period of 3 (three) months, provided that no three month period or any period forming part of such three month period shall be used more than once for the purpose of calculating the reduction in terms of clause 8.3 below.
8.3 Should the service uptime fall below the prescribed service uptime level, Customer shall be entitled to the following reduction of the Server Hosting Service Fees in respect of the relevant 3 (three) month period. Any reduction of Service Fees may only be claimed as a credit against future Service Fees.
8.3.1 99 – 100% no reduction
8.3.2 95 – 98.999% 25 % reduction
8.3.3 90 – 94.999% 50 % reduction
8.3.4 Less than 90% 70% reduction
8.4 The liability of Novicus Systems for failing to achieve the minimum service uptime in terms of this Service Level Agreement will be limited to the reduction contemplated in clause 8.3 above.
8.5 For the purpose of this Service Level Agreement:
8.5.1 service uptime will be measured by Novicus Systems’ monitoring software and only with reference to Novicus Systems’ network availability and UPS power;
8.5.2 the calculation of service uptime and the calculation of any reduction of Service Fees will exclude any downtime, outage or interruption or unavailability of the Server Hosting, as a result of, or caused by:
188.8.131.52 any outage, interruption or unavailability of the services or facilities of an external or third party telecommunications or network provider to which the Novicus Systems network infrastructure is connected;
184.108.40.206 any outage, interruption or unavailability caused by Customer’s hardware, software and/or applications;
220.127.116.11 scheduled downtime for general maintenance, enhancements, upgrades or modifications (or of an otherwise scheduled nature). Novicus Systems shall use its reasonable endeavours to notify Customer of such downtime and shall furthermore use its reasonable endeavours to provide such notification at least 24 (twenty four) hours prior to such scheduled downtime.
18.104.22.168 Force Majeure;
22.214.171.124 any action or omission of the Customer, including without limitation, accidental damage, operator errors, abnormal operating conditions, the connection of unauthorised peripheral equipment, improper use, misuse, neglect or abuse of hosting service; and
126.96.36.199 any factor beyond the reasonable control of Novicus Systems.
8.6 Novicus Systems will provide the monitoring service, and on a monthly basis provide uptime reports on request by Customer should Server statistics be required.
8.7 Should Customer wish to claim any reduction of Service Fees, Customer will, within 30 (thirty) days from the end of any 3 (three) months measurement period, notify Novicus Systems in writing of the reduction claimed, the dates of the measurement period and the dates, times and duration of non-availability of Server Hosting service. Novicus Systems may request further documentation and supporting data from Customer to compare against its own monitoring data.
8.8 All service requests and technical support calls can be logged 24 hours per day, 365 days per year with Novicus Systems’ Customer Care Centre by logging at https://support.novicus.com:
8.9 Novicus Systems will keep Customer informed of the progress of the problem resolution. Novicus Systems will endeavour to adhere to the following times (in business hours) with regard to feedback:
8.9.1 Critical Disruptions: Total loss of all services 1 hour
8.9.2 Service Disruptions: Serious degradation of services 2 hours
8.9.3 Service Incidents: Minor loss/degradation of services 4 hours
8.9.4 Service Queries: No loss/degradation of services 4 hours
8.10 24 Hour Reboot Service: (if subscribed to)
Customer shall have access to the services of qualified Novicus Systems technical staff outside of normal business hours to reboot the Server, should Customer not be able to reboot it remotely.
8.11 No Server will be reinstalled if custom DLL’s were operational on the old system and are required on the new installation.
8.12 No software and/or application other than that indicated in the Application Form will be installed or troubleshot by Novicus Systems’ technical staff under any circumstances.
8.13 Server and SQL backups will be performed if selected in the Application Form.
8.14 Novicus Systems will not be responsible for any loss of data should Customer require a Server reinstall.
9. PROFESSIONAL MANAGEMENT AND BACK-UP (IF SUBSCRIBED TO)
9.1 This additional Server Hosting service shall only be available, should the Server be rented by Customer from Novicus Systems in terms of the Equipment Rental Services Product Terms.
9.2 Should Customer subscribe to the additional Server Hosting service, Customer’s Server Hosting shall be totally outsourced to Novicus Systems and subject to the Service Level Agreement in clause 8 Novicus Systems will attend to all maintenance and repair on the Server and Software on a 24 hour basis.
9.3 Customer shall not have any access to the Server.
9.4 Novicus Systems will use reasonable endeavours to provide the best possible practices with regard to the backup services, but will not accept any liability for the loss of any data as a result of faulty hardware or software relating to the backup procedure.
10. MICROSOFT END USER LICENCE FOR SPLA SOFTWARE (IF SUBSCRIBED TO)
Customer acknowledges that: (i) Novicus Systems is duly appointed to license certain Microsoft software products to Customer in terms of a Microsoft Service Provider License Agreement entered into with the Microsoft Corporation; (ii) if Customer has selected any SPLA Software to be rented to it by Novicus Systems, the terms and conditions set out below will apply to the rental of such Microsoft software products to Customer. These are the Microsoft Terms and Conditions:
“TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SPLA SOFTWARE”
This document concerns your use of Microsoft software, which includes computer software provided to you by Novicus Systems as described below, and may include associated media, printed media, an “online” or electronic documentation (individual and collectively “Licensed Products”). Novicus Systems does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which Novicus Systems needs to inform you. Your right to use the Licensed Products is subject to your Agreement with Novicus Systems, and to your understanding of, compliance with and consent to the following terms and conditions, which Novicus Systems does not have authority to vary, alter or amend.
“Client Software” means software that allows a Device to access or utilise the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” or electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a Server.
“Software Documentation” means any end user document included with server software;
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
2. OWNERSHIP OF LICENSED PRODUCTS. The Licensed Products are licensed to Novicus Systems from an affiliate of the Microsoft Corporation (“Microsoft”). All intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music text and “applets” incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Products does not transfer any ownership of the Licensed Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE.You may use the Client Software installed on your Devices by Novicus Systems only in accordance with the instructions, and only in connection with the services, provided to you by Novicus Systems. The terms of this document permanently and irrevocable supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to you by Novicus Systems, you may have access to certain “sample”, “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”).YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY RESTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO NOVICUS SYSTEMS, WHICH TERMS MUST BE PROVIDED TO YOU BY NOVICUS SYSTEMS. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Novicus Systems.
5. COPIES. You may not make copies of the Licensed Products, provided however, that you may (a) make one (1) copy of Client Software on your Device as expressly authorised by Novicus Systems; and (b) you make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Novicus Systems, upon notice from Novicus Systems or upon transfer of your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the Licensed Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Licensed Products, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.
7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Products to any third party, and you may not permit any third party to have access to and/or use the functionality of the Licensed Products except for the sole purpose of accessing the functionality of the Licensed Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Novicus Systems.
8. TERMINATION. Without prejudice to any other rights, Novicus Systems may terminate your rights to use the Licensed Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Novicus Systems or Novicus Systems’ agreement with Microsoft under which the Licensed Products are licensed, you must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of its component parts.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY NOVICUS SYSTEMS AND NOT BY MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT. Any support for the Licensed Products is provided to you by Novicus Systems and is not provided by Microsoft or its affiliates or subsidiaries.
11. NOT FAULT TOLERANT. THE LICENSED PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE LICENSED PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS. The Licensed Products are of U.S. origin for purposes of U.S export control laws. You agree to comply with all applicable international and U.S. laws that apply to the Licensed Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH. In addition to any liability you may have to Novicus Systems, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.”