This agreement contains the commercial terms between Triloq and the Customer relating to the provisions and services rendered by Triloq to the Customer. In this agreement, unless the context otherwise dictates: 1.1 the singular shall mean the plural and vice versa unless inconsistent with the context; 1.2 reference to the masculine gender shall include the feminine gender and vice versa unless inconsistent with the context; 1.3 the headings to this agreement are used for the sake of convenience and shall not govern the interpretation thereof.
In the case of conflict between the wording of any item in any annexure or any annexures thereto and a clause in this agreement, the latter (i.e. the wording of the clauses in this agreement) will prevail.
3. COMMENCEMENT DATE AND DURATION
3.1 Irrespective of the Signature date, all services detailed below and annexed hereto will be provided as from the Commencement Date as stipulated on the service Annexure attached hereto.
3.2 Either party shall be entitled to terminate the agreement by giving the other notice as stipulated in the service Annexure, provided the Customer shall remain liable to Triloq for any tariffs, fees, costs, levies, disbursements and taxes, or the pro rata portion there off, owed on the said date.
3.3 Should the Customer give notice to terminate this agreement as contemplated in clause 3.2 Triloq shall:
3.3.1 cease to accept any new business requests from the Customer that are scheduled to occur after the notice period has expired.
3.3.2 continue to process all requests received during the notice period.
4.1 Triloq offers a selection of packages and services related to website development, hosting, POP Email, Hosted Exchange Email internet connectivity (ADSL) and other services as outlined in this agreement or annexed hereto.
4.2 The Customer wishes to engage Triloq to provide the selected services.
4.3 This agreement regulates the services to be provided by Triloq to the Customer in respect of the selected package and the parties rights in the outcomes of such services.
4.4 Triloq will, during the currency of this agreement, ensure that sufficient suitably qualified consultants devote of their time, attention and abilities to provide the services as may be necessary and reasonable satisfaction to the Customer.
4.5 Triloq agrees to advise and assist the Customer with respect to all aspects of the Services. In the performance of the duties Triloq will comply with all reasonable requests and directions of the Customer.
4.6 Triloq will use reasonable care and skill to perform its obligations under this Agreement. This will include ensuring that Services rendered is accurate complete, correct, error-free, up-to-date and reliable. The Customer agrees that the Services are rendered “as is” and “as available” and are used at the Customers’ own discretion and risk.
5. THE WEB HOSTING SERVICE
5.1 Triloq shall provide hosting and managed services.
5.2 Triloq shall provide space on its hosting server/s and provide the ability for users of the Customer to access the Customer website via the internet.
5.3 Triloq shall use reasonable endeavours to ensure that sufficient access is maintained on its hosting facilities to enable users to have access to the Customers website.
5.4 Notwithstanding Triloq does not warrant continues access to the Customers website. Triloq shall not be liable in the event that any service is unavailable to the Customer or Users due to downtime attributable to malfunction, upgrades or preventative or remedial maintenance activity, 3rd party faults, certificates, security or browser problems outside of Triloq’s control.
5.5 Web Hosting Services does not include:
5.5.1 any maintenance and/or support of the website/s, website content, and or 3rd party website products which are not specifically included and documented as part of the Web Hosting services plan.
5.5.2 any emails or DNS management where these are not hosted with Triloq.
5.6 Triloq shall not be liable to reimburse in any form where such failure arises from any one or more of the following:
i. Site wide disasters including, but not limited to flood, tsunami, earthquake, fire, pandemic, terrorism, or act of war.
ii. Any event caused by any entity outside of Triloq’s control.
iii. Planned outages.
iv. Incidents caused by the Customer including, but not limited to faults caused by the Customer’s equipment, appliances, interconnected equipment, networks, systems or gateways, and/or the acts or omissions of the Customer, third party components whether within or outside Triloqs network or the acts or omissions of any telecommunications companies or failure of third party services.
v. Schedule or routine maintenance or reconfiguration of the Triloqnetwork or equipment, including without limitations maintenance by telecommunications providers.
vi. Scheduled maintenance and emergency maintenance and upgrades.
vii. DNS (Domain Name Server) issues outside the direct control of Triloq.
viii. DNS propagation.
ix. Email outages or delays, undelivered incoming or outgoing mail, spam or virus problems.
x. Outages elsewhere on the internet that hinder access to the Customer’s account or services.
5.7 The web domain, associated branding and content of the website remains the sole property of the Customer with associated Copyright Laws governing such branding and content. The Customer holds Triloq harmless from any blame should third parties access the Customers’ website and use branding, design or content that may be copied off the website.
5.8 Triloq hosts its servers at Internet Solutions. The servers and associated data are backed up daily in line with the agreed service level agreement with Internet Solutions. Should there be a failure of the servers then Internet Solutions shall provide Triloq with a replicated set of server infrastruture to ensure business continuity for Triloq’s customers.
6. EXCLUDED SERVICES
6.1 Any services not specifically specified are excluded. Triloq may provide them when the Customer requests Triloq to do so, but Triloq will charge for such services on a Time and Materials basis.
6.2 The Web Hosting service does not include any services related to search marketing or Search Engine Optimization marketing.
7. SUPPORT HOURS
Customer support is available from Monday to Friday from 9:00am to 5:30PM excluding weekends and Public Holidays.
8. CUSTOMER RESPONSIBILITIES
The Customer hereby undertake to:
8.1 Provide Triloq with all content. The content must be provided in electronic format.
8.2 Review all content submitted to it by Triloq for approval and provide feedback to Triloq within a reasonable or agreed time from receipt. If the customer does not give feedback within the agreed review period, it will be deemed to have accepted the content. The Customer consents to the content being uploaded to the website.
8.3 Grant Triloq access to the Customer’s website’s backend for purposes of rendering the Web Hosting Service.
8.4 Grant Triloq permission to make website changes for purposes of optimization and to communicate with third parties (e.g. Customer’s Hosting Facility Company).
8.5 Permit Triloq to implement all optimization strategies suggested by Triloq on the Customer’s website.
8.6 Upload or permit Triloq to upload the optimized pages created by Triloq via ftp or equivalent to the Customer’s Hosting Facility Company, when not hosted with Triloq.
8.7 Authorize Triloq to use all of its logos, trademark, website images and other copyrighted material to enable Triloq to create informational pages and search engine positioning and optimization where neccessary.
8.8 Allow Triloq under permission from the Customer to display the customers logo and/or branding on the Triloq website in order to showcase the work Triloq has undertaken.
8.9 Allow Triloq to elicit feedback for the purposes of generating a testimonial for potential inclusion on Triloq’s website.
9. CUSTOMER ACKNOWLEDGEMENTS
The Customer acknowledges that Triloq is not liable for the following that is beyond the control of Triloq and which may impact on the Customers’ online marketing activities :-
9.1.1 Limitations on national and/or international bandwidth capacity;
9.1.2 Telecommunication service operator failures;
9.1.3 Telecommunications link failures;
9.1.4 The types of websites and content that search engines and directories will accept;
9.1.5 The time it takes for a search engine or directory to index and rank the Customer’s website;
9.1.6 Customer’s website ranking dropping (due to the competiveness of some keywords/phrases and ongoing changes in search engine ranking algorithms)
9.1.7 A change in URL that can result in Customer’s website ranking dropping.
9.1.8 Incorrect display on web-browsers and/or email due to incorrect user settings.
9.1.9 Hosting failure in the facility that Triloq has its infrastructure hosted in and wherein all services are delivered from for Customers.
The Customer further undertakes to hold Triloq harmless in respect of any event relating to the Website that occurs after termination of this agreement.
10. CUSTOMER WARRANTIES
The Customer warrants that all content provided to Triloq is not:
10.1 In breach of the intellectual property rights of any third party;
10.2 Obscene, and
10.3 In breach of any law or code.
11. PAYMENT AND INTEREST
11.1 In consideration for the services to be provided by Triloq, hereunder, the Customer shall pay Triloq a deposit of up to 50% within 7 calendar days following the Signature date in order to initiate the service. Monthly fees will be payable by debit order annexed hereto on the first business day of each month from Commencement Date in each subsequent month throughout the term of the agreement. All fees debited from the Customer or required by Triloq to be paid by the Customer shall be shall be paid into the following account: Account Name:Triloq Technologies (Pty) Ltd, Branch Name:FNB GTS Johannesburg, Branch Code:255005, Account Number: 62362214133 11.2 The Customer will pay Triloq all amounts which the Customer is required to pay in terms of this agreement. All amounts which are not paid on due date will bear interest at the prevailing Prime interest rate. Interest will be calculated on a monthly basis in arrears from due date of payment and will be compounded. Triloq’s the right to charge interest on outstanding amounts will not be detracted from any other rights that Triloq may have in law or in terms of this agreement.
12. CUSTOMER FAILURE
12.1 If the Customer fails to comply with the Customer’s obligations for a period in excess of five calendar days after receiving a written request for the Customer to comply with the Customers obligation from Triloq, failure will constitute a material breach of this agreement.In addition to any remedies Triloq may have arising out of the breach:
12.1.1 Triloq reserves the right to suspend the service to the Customer at its sole discretion until the Customer fulfils the agreed obligations.
12.1.2 The Customer will pay Triloq of all idle time occasioned by the failure. For these purposes, Idle Time will be the aggregated time of all Triloq Personnel assigned to provide the services, calculated on an eight hour day and five day week basis, between the date on which the Customer finally complied with the Customer’s obligations or the date on which Triloq terminates an Order in accordance with terms of the Agreement (whichever is sooner) and
12.1.3 without derogating from this clause, if Customer fails to comply with Customer’s obligations within the notice period, Triloq may reassign its assigned resources to other projects, in which event, if Triloq elects not to terminate the Agreement, the Services will be postponed to a date to be determined by Triloq at its discretion.
13.1 The Customer shall not during the terms of this agreement and for a period of 5 years thereafter:
13.1.1 use confidential information otherwise than as may strictly be necessary to continue using the Website and Feeder Sites and
13.1.2 Disclose Confidential Information to third parties
13.2 The obligations accepted by Customer in clause 12.1 do not apply to information that:
13.2.1 Is in the public date at the Signature Date;
13.2.2 Lawfully comes into the public domain after the Signature Date otherwise than as the result of the conduct of the Customer; or
13.2.3 Is disclosed to the Customer by a third party not subject to related obligations of confidentiality in favor of Triloq.
14. LIMITATION OF LIABILTY
14.1 Unless specifically made in this agreement, Triloq makes no warranties, conditions, representations, indemnities and guarantees with respect to the Website, Feeder Sites or services hereunder, whether express or implied, arising by law, custom, prior oral or prior written statements by Triloq or otherwise (including, but not limited to, any warranty for merchant-ability or fitness for particular purpose) are hereby overridden, excluded and disclaimed by warranty for merchant-ability or fitness for particular purpose) are hereby over-ridden, excluded and disclaimed by Triloq to the fullest extent permitted by law. And, Triloq will not be liable in respect of any related claims or damages however arising unless caused by the gross negligence of Triloq. In particular, and without derogating from the generality of this clause, under no circumstances (except in the events of: personal injury or death resulting from the negligence of Triloq, or a cause of action arising from the gross negligence of Triloq) will Triloq, its directors, officers, employees, servants, contractors or agents be liable for any consequential, indirect, special, punitive or incidental damage or lost profits based on claims of Customer and/or user of the Website, Feeder Sites (including but not limited to claims for loss of goodwill, use of money or use of such Website or Feeder Sites) arising out of penalization by any search engine or change in ranking of the Website, interruption of use or availability, failure or malfunction of the Website or Feeder Sites, telecommunication facilities or hardware, stoppages or other impairment of other assets, defects, breach or failure of express or implied warranties, breach of contract, misrepresentation, negligence and strict liability in delict.
14.2 Without derogating from clause 14.1, in the event that any claim is made successfully against Triloq, the liability of Triloq (including claims for damages) is limited to the amount actually paid by Customer to Triloq hereunder.
15. INDEMNITY BY CUSTOMER
The Customer indemnifies Triloq and its directors, officers, employees, servants, contractors and agents against damage, cost or expense(including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the Websites and Feeder Sites that is based on Customer’s gross and proven wrongful or unlawful conduct, action or inaction.
16. FORCE MAJEURE
In the event of force majeure, being unforeseeable events beyond the control of Triloq and preventing Triloq from meeting its obligations under this agreement, it is agreed that if noticed of such situation is given by Triloq within two weeks of the occurrence of force Majeure, the contract obligations as far as effected by such event will be suspended for as long as the inability to perform owing to such situation continues during which the customer does not pay.
17. RELATIONSHIP BETWEEN THE PARTIES
Nothing in this agreement will be construed so as to create or deem a partnership or a principal and agent relationship between the Parties, and neither Party will hold itself out in any manner which would indicate or imply any such relationship with the other. Furthermore, neither Party is entitled to bind the other, whether in contract or otherwise.
18.1 No waiver of any of the terms or conditions of this agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same and any such waiver will be effective only in the specific instance and for the purpose given.
18.2 No failure or delay on the part of either party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
19. GOVERNING LAW
This agreement is governed by the Laws of South Africa
In the event of the provisions of this agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from remaining terms, which shall continue to be valid and enforceable.