Maru Africa utilises the services of Host Africa, to provide Virtual Private Server Hosting services. All Virtual Private Servers are subject to the terms and conditions of Host Africa, as amended from time to time; as such the customer agrees to Maru Africa and Host Africa’s Terms;

NB

We thought we would make it easier for our clients to understand how the billing for VPS hosting works:

  • The service is offered Pro Rata

  • You’ll get invoiced on the 22nd of each month

  • You have until the end of the month to pay

  • If you don’t pay by month-end your server will be terminated (this means that the server with all its information will be deleted)

  • NB: It is your responsibility to backup all the information that you may put on the server

Application and initiation of Services

  1. By subscribing to or applying for the Services, the Customer hereby appoints Maru Africa to provide the Service(s) to the Customer for the duration of this Agreement, which appointment Maru Africa accepts, subject to the terms and conditions contained in this Agreement.
  2. Each application for or subscription to a Service will constitute a separate contract between the Parties and HOSTAFRICA  reserves the right to refuse to commence provision of a Service based on the Customer’s prior conduct.
  3. If required by Maru Africa, your application for a Service may be subject to a credit referencing or risk assessment process. You agree that Maru Africa may request and receive your confidential, credit and prescribed information (as defined in the NCA) (“Assessment Information”) from registered credit bureau in order to perform a financial means test to determine whether you will be in a position to meet your obligations under the intended agreement. Maru Africa is entitled to perform a financial means test each time you apply for a Service.  No agreement shall come into effect in the event of a negative credit reference or risk assessment, unless at the discretion of Maru Africa to waive this clause. Maru Africa may choose to waive this clause on a case by case basis and any such waiver shall not constitute a permanent or overall waiver of this clause for all Services. In this regard you consent to Maru Africa requesting, receiving and reporting your Assessment Information from and to registered credit bureau in accordance with the provisions and for the purposes of the NCA; and the sharing of such information by registered credit bureau and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
  4. Depending upon the Service provided, Maru Africa may be obliged under RICA to obtain certain information and documents from the Customer, and HOSTAFRICA  may withhold or suspend providing Services until the Customer has provided the necessary information and/or documents to Maru Africa.
  5. If the Customer is a juristic person, Maru Africa may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, Maru Africa may withhold providing the Services until the surety has been signed.
  6. If the Customer has not complied with a requirement of this clause, Maru Africa may delay providing the Goods or Services until the Customer has complied. If the Customer does not comply within a reasonable period, Maru Africa may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result.
  7. Maru Africa cannot guarantee the provision of the requested Service upon the receipt of an application. Provision of the Service is subject to Maru Africa confirming that it is technically feasible to do so. Applicants will be formally notified after receipt of an application whether or not the Service can be provided.

 Hosting Services

  1. Maru Africa shall make a server available to the Customer for its exclusive use. The server will at all times remain Host Africa’s property, unless it is purchased outright by the Customer. Host Africa will setup and manage the server on your behalf.
  2. All Server log files remain HOSTAFRICA’s property, but we will make a copy available to the Customer on request.
  3. The Customer is not allowed to remove the service from the location where HOSTAFRICA has installed it, except with the advance written approval of HOSTAFRICA
  4. HOSTAFRICA shall manage the server, including the hardware, software, and upgrades at its sole discretion.
  5. If the server becomes the target or source of any form of denial of service attack and HOSTAFRICA believes that there is no other possible solution at that point in time, we may disconnect the Server from the network.
  6. Maru Africa and HOSTAFRICA shall not be responsible for the Customer’s software, installed by the Customer that you may install (and any vulnerabilities that may result from the use of the software).
  7. Maru Africa and HOSTAFRICA , expressly disclaims any direct, indirect, incidental, special, punitive, consequential losses or damages, of whatever nature including which arise or may arise from (a) the Service or the hosting of any content, application and/or data of whatever nature (b) maintenance and/or upgrades (c) installation and/or use of any customer software or other software on the Customer’s website and/or database. The Customer indemnifies HOSTAFRICA against all loss, damages, claims and liabilities of whatsoever nature as a result of any claim instituted by a third party.

Commencement and termination

  1. This Agreement shall be effective from the date on which you register for any Services with Maru Africa.
  2. Subject to the Service terms, this Agreement shall continue in effect on a month to month basis and either Party shall have the right to terminate this Agreement upon providing the other Party with at least one calendar month notice.
  3. The Customer acknowledges that Maru Africa may:
    1. terminate this Agreement by written notice, including email, and without liability in the event of the termination of its agreement with a Supplier relevant to the provision of any Service; or
    2. suspend or terminate the Services of a Customer in its absolute discretion and without notice:
      • if the Customer commits a serious or repeated breach of the Agreement (an in particular any provision of the Acceptable Use Policy) or the Customer engages in any conduct which in Maru Africa’ opinion would have a negative impact on Maru Africa, other customers of Maru Africa or Maru Africa’s staff or is detrimental to the welfare, good order or character of Maru Africa;
      • any part of the Customer’s Fees are not paid in full when due;
      • the information the Customer supplied to Maru Africa is found to be incorrect or false; or
      • Maru Africa reasonably thinks that the Customer’s use of the Services may result in the commission of a crime or is otherwise unlawful.
      • Upon such suspension or termination, the Customer:
        • may not resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Maru Africa, its servants, its agents or any other persons for whom it may be liable in law;
        • will not be eligible for re-imbursement of any the Fees paid in advance for the Services, if applicable;
        • may be barred from subscribing to any services with Maru Africa in the future;
        • may be listed with applicable authorities and credit bureaus.
    3. Maru Africa may in its sole discretion determine the period of suspension it may deem necessary in consideration of the particular circumstances that gave rise to the suspension.

Services and Changes to Services

  1. Maru Africa offer various Services and may provide recommendations to customers, based on the information provided by such customers. Maru Africa provides Services on the basis of information provided by the Customer, and Maru Africa offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Customer. The Customer is solely responsible for ensuring that their choice of Services provided by Maru Africa to their requirements or desired outcome. Maru Africa will not be liable for compensation, costs or damages resulting from incorrect selection of Services, or resultant delays in rectifying such errors.
  2. While every effort is made Maru Africa and its Suppliers to ensure that all Services retain a constant uptime (99.9%) and high level of service quality given the nature of the Services, technology, infrastructure and number of Suppliers involved in the provision of such Services this is not always achievable. As such all Services unless otherwise agreed to in writing are based on the best effort premise where no guarantees on throughput, latency or uptime can be provided. If in the instance that Maru Africa cannot meet such standard of service quality its liability shall be limited to three months of your base hosting fee, or, two thousand five hundred rand (R 2 500.00), whichever is the lesser.
  3. To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against Maru Africa, is to require Maru Africa to remedy the defect in the quality of the Services performed.
  4. Maru Africa reserves the right to stop offering particular Services if it deems it necessary. Maru Africa will then either provide the service for the remainder of the time that has been paid for or refund the amount paid for that specific package.

Security

  1. MARU Africa will implement measures in line with Good Industry Practice to ensure the security of the MARU AFRICA System and the physical security of HOSTAFRICA’s premises, but gives no warranty that breaches of security will not take place.
  2. If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify MARU Africa in an appropriate way that does not further compromise security concerns.
  3. The Customer must not do anything that may prejudice the security of the MARU AFRICA System, and must take all reasonable measures necessary to ensure that:
    1. no unlawful access is gained to HOSTAFRICA’s premises, the MARU AFRICA System, or the Customer’s own system;
    2. no Malicious Code is introduced into the MARU AFRICA System; and
    3. the Customer Data is safeguarded.
  4. If a security violation occurs, or MARU AFRICA is of the view that a security violation is imminent, MARU AFRICA may take whatever steps it considers necessary to maintain the proper functioning of the MARU AFRICA System including without limitation:
    1. changing the Customer’s access codes and passwords (or those of any user of the MARU AFRICA System), and
    2. preventing access to the MARU AFRICASystem.
  5. MARU AFRICA takes reasonable measures to provide disaster recovery; but does not warrant that recovery will be successful or that it will be completed within any time limit.
  6. The Customer must give its full cooperation to MARU AFRICA in any investigation that may be carried out by MARU AFRICA regarding a security violation.
  7. If the Customer is providing any Service to third parties that makes use of the Maru Africa System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 5.

Customer Duties

  1. Customer is prohibited from selling, reselling or otherwise dealing with the Services(s) which are proprietary to MARU AFRICA in any manner whatsoever without its consent.  Without limitation to the aforegoing, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to MARU AFRICA unless the Customer is duly authorized to resell such Service(s).
  2. The Customer is prohibited from allowing any person, other than its employees or other authorised parties, to access to the Service(s).
  3. The Customer shall only use the Service in compliance with South African Laws, the terms and conditions of this Agreement and HOSTAFRICA’s Policies, as published on HOSTAFRICA’s Website. The Customer acknowledges that MARU AFRICA has no obligation to assist the Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
  4. Where any Service is provided to the Customer with a predefined maximum allowable amount of bandwidth, traffic usage, data, or data cap (“Data Allocation”) during a predefined period or term as applicable to the particular Service, such Data Allocation may not be exceeded. In the event of such Data Allocation being exceeded by you, MARU AFRICA shall charge you for such overage as applicable to the particular Service and at the prevailing overage rate for that Service. Alternatively, MARU AFRICA may elect to deduct the amount exceeding the original Data Allocation from the following Data Allocation as applicable to the specific Service.

Fees, Charges and Payment

  1. Subscription options: With reference to the applicable Service, MARU AFRICA offers the following subscriptions options:
    1. Monthly: Fees will be due monthly in advance and should be paid by the 1stBusiness Day of the applicable month. Subject to the provision of the Agreement, the Customer must give one calendar month’s written notice to MARU AFRICA in order to cancel this subscription.
    2. Bi-annually: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further bi-annual renewal period(s), unless the cancelled by Customer with at least one calendar month’s written notice to HOSTAFRICA, before the expiry of the applicable bi-annual period.
    3. Tri-annually: Fees are due and payable on or before the 1stBusiness Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further tri-annual renewal period(s), unless the cancelled by Customer with at least one calendar month’s written notice to HOSTAFRICA, before the expiry of the applicable tri-annual period.
    4. Annual: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further annual renewal period(s), unless cancelled by Customer with at least one calendar month’s written notice to HOSTAFRICA, before the expiry of the applicable annual period.
  2. Usage Fees, if applicable, shall be billed in arrears.
  3. Billing process:
    1. Billing will commence on the date that Service provision commences. Partial months will be charged pro rata;
    2. Services are billed in advance and all invoices must be paid by the Customer in advance;
    3. Any Services invoiced in arrears are payable on presentation of invoice;
    4. All Fees and other amounts payable are quoted exclusive of VAT;
    5. All Fees shall be paid by debit order or credit card payments. Maru Africa shall only accept payment for bi-annual, tri-annual or annual payments by way of electronic funds transfer in exceptional circumstances and on only by prior arrangement at Maru Africa’s discretion; and
    6. All payments shall be without deduction and free of exchange or set-off.
  4. Consequences of late or non-payment:
    1. If any Fees remains unpaid by the Customer beyond the due date of payment:
      1. the interest rate will be charged at 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month in accordance with the maximum interest rate allowed in terms of the NCA for incidental credit agreements;
      2. the prime overdraft rate will be determined by HOSTAFRICA’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove;
      3. interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears;
      4. In the event of a debit order being returned by your bank, MARU AFRICA shall charge a debit order return fee of the greater of 5% of the attempted debit order amount or R50.00; and
      5. if the non-payment pass fourteen days from the due date, a letter of demand may be sent to you. If payment is not received after twenty business days from the date of notice, your default will be listed on a registered credit bureau database, which will affect your credit rating.
    2. MARU AFRICA retains the right to suspend any and all its Services for non-payment (which may not be limited to the particular Service in question), and to withhold such Services until all arrears are settled in full on any and all products and Services. While Services are in a suspended state you will have no access to the Services, but will continue to be liable for the full cost associated with the Service(s) and no refunds or pro-rata of any kind will be provided to you for the period in which the Service was suspended.
    3. If the Customer’s Service(s) are suspended or terminated for non-payment (or any other breach of this Agreement), MARU AFRICA may charge a reconnection fee for subsequent reactivation of Services. Reconnection Fees are payable in full before any services can be reactivated. MARU AFRICA may charge multiple reconnections Fees where multiple Service(s) are affected, and may charge “escalating” penalties for repeated non-payment offences.  Any prior leniency shown in this regard will not prejudice HOSTAFRICA’s right to enforce such penalties in full at any time (within their discretion). Reconnection of Services may be subject to a waiting period of up to 72 hours, at Maru Africa’s discretion, regardless of when payment is received or cleared.
  5. Billing disputes:
    1. In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time to prevent interruption of services while the billing is in dispute. All invoices shall be sent to Customers by way of e-mail and the Customer is responsible to keep MARU AFRICA informed of all changes to such e-mail addresses.
    2. All billing complaints must be directed to MARU AFRICA in writing must be accompanied by a copy of the bill concerned or the particulars thereof, e.g. username or invoice number, the reason for the dispute; the amount in dispute; and supporting information or documentation, if any.
    3. MARU AFRICA will reach a determination regarding the billing complaint and communicate its decision to you within fourteen (14) working days of receipt of the complaint.
    4. Reparations will be made to Customers with successful disputes by means of an account credit or refund, at HOSTAFRICA’s discretion.
  6. Amendment of Fees:
    1. MARU AFRICA reserves its rights to change its prices at any time on reasonable notice, which will not be less than thirty days.

Intellectual Property Rights and Infringements

  1. All Intellectual Property rights in and to HOSTAFRICA’s Software, Systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement shall belong to HOSTAFRICA. In addition, all intellectual property rights in and to Suppliers’ software, systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement and licensed to MARU AFRICA shall be made available to Customers in the sole discretion of MARU AFRICA and subject to Maru Africa’s agreement with such Suppliers. The Customer undertakes that it shall at no time, have any right, title or interest in the Intellectual Property of Maru Africa or the applicable Suppliers and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the software systems, procedures and policies owned by HOSTAFRICA, or any of its Suppliers.
  2. The Customer agrees to only make use of properly licensed third party software in connection with its use of the Services and agrees to indemnify and hold MARU AFRICA and any of its members, representatives, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any third party claims relating to its involvement in any copyright infringement or alleged copyright infringement.
  3. The Customer warrants that it shall not use the Service(s) to produce, host or present any content in contravention of any person’s Intellectual Property rights, and in particular warrants that it shall recognise, acknowledge and use any content in accordance with any third party’s Intellectual Property rights. The Customer furthermore warrants that it has received all necessary permissions to make use of any Intellectual Property relating to third parties.
  4. Any specifications, descriptive matter, drawings and other documents which may be furnished by MARU AFRICA to the Customer from time to time:
    1. do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement; and
    2. shall remain the property of MARU AFRICA and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer. All copyright in such documents vests in MARU AFRICA and s such documents shall be returned on demand.

Data Privacy and Protection

  1. A Party (“the Receiving Party”) shall at all times treat and hold all Confidential Information it receives from the other Party (“the Disclosing Party”) as confidential.
  2. The Receiving Party undertakes and agrees that:
    1. in order to protect the proprietary interests of the Disclosing Party in and to its Confidential Information the Receiving Party will not at any time, whether during the currency of this Agreement or at any time thereafter, either use any Confidential Information of the Disclosing Party or directly or indirectly divulge or disclose any Confidential Information of the Disclosing Party to third parties; and
    2. upon termination, cancellation or expiry of this Agreement the Receiving Party will deliver to the Disclosing Party, or at the Disclosing Party’s option, destroy all originals and copies of Confidential Information in its possession.
  3. The aforegoing obligations will not apply to any information which –
    1. is lawfully in the public domain at the time of disclosure to the Receiving Party;
    2. subsequently becomes lawfully part of the public domain by publication or otherwise;
    3. subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or
    4. is disclosed pursuant to requirement or request by operation of law, regulation of court order.
  4. The Customer consents to MARU AFRICA processing Data transmitted to HOSTAFRICA’s System in a way which is consistent with the Service being provided. Where the Customer’s use of the Service(s) leads to the transmission of Data, which includes personal information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Customer warrants that it has obtained the consent of any third party for the use of that party’s personal information in this way, or otherwise that such processing is lawful, and indemnifies MARU AFRICA from any claim brought by such third party as a result of its failure to do so.
  5. MARU AFRICA will use reasonable endeavours to ensure the safekeeping of any Data or content which may be uploaded to the MARU AFRICA servers from time to time, such as and without being limited to, photographs, websites, videos and e-mail messages (hereinafter collectively referred to as “your data”). However, MARU AFRICA does not provide any guarantees against data loss, and as such you agree to retain your own backups of your Data and indemnify and hold harmless Maru Africa from any claims as a result of your Data being lost for whatsoever reason.
  6. HOSTAFRICA shall immediately delete all of your Data from the MARU AFRICA servers upon termination of the Service or termination of this Agreement. It is thus your responsibility to ensure that you have made local copies of all of your Data prior to the termination of the Service. MARU AFRICA shall not retain backups of any kind once the Service is terminated.

Representations and warranties

  1. MARU AFRICA warrants and represents that:
    1. it has the capacity and authority to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
    2. it is the owner of or has the right to use any intellectual property employed by it during or as part of the Service(s);
    3. the Services shall be performed in compliance with South African Law;
    4. the Services shall be provided in accordance with the provisions of this Agreement;
    5. the Services will be performed in a professional manner and that it is and/or it shall use personnel that is suitably qualified and has sufficient knowledge, expertise and competence to perform the Service(s), in accordance with the standard of its industry.
    6. Save as expressly set out in clauses 1, MARU AFRICA does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service(s) and all warranties which are implied or residual at common law are hereby expressly excluded.
    7. MARU AFRICA does do not warrant or guarantee that the information transmitted by or available to Customer by way of the Service(s):
      1. will be preserved or sustained in its entirety;
      2. will be delivered to any or all of the intended recipients; or
      3. will be suitable for any purpose;
      4. will be free of inaccuracies or defects or bugs or viruses of any kind; or
      5. will be secured against intrusion by unauthorised third parties; and MARU AFRICA assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 10.

Customer Warranties

In addition to and without limiting any Customer warranty under this Agreement, the Customer undertakes and represents that:

  1. it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and
  2. the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in any violation or breach of, any contract to which Customer is a party.

Data Privacy and Protection

  1. A Party (“the Receiving Party”) shall at all times treat and hold all Confidential Information it receives from the other Party (“the Disclosing Party”) as confidential.
  2. The Receiving Party undertakes and agrees that:
    1. in order to protect the proprietary interests of the Disclosing Party in and to its Confidential Information the Receiving Party will not at any time, whether during the currency of this Agreement or at any time thereafter, either use any Confidential Information of the Disclosing Party or directly or indirectly divulge or disclose any Confidential Information of the Disclosing Party to third parties; and
    2. upon termination, cancellation or expiry of this Agreement the Receiving Party will deliver to the Disclosing Party, or at the Disclosing Party’s option, destroy all originals and copies of Confidential Information in its possession.
  3. The aforegoing obligations will not apply to any information which –
    1. is lawfully in the public domain at the time of disclosure to the Receiving Party;
    2. subsequently becomes lawfully part of the public domain by publication or otherwise;
    3. subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or
    4. is disclosed pursuant to requirement or request by operation of law, regulation of court order.
  4. The Customer consents to Maru Africa and/or HOSTAFRICA processing Data transmitted to HOSTAFRICA’s System in a way which is consistent with the Service being provided. Where the Customer’s use of the Service(s) leads to the transmission of Data, which includes personal information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Customer warrants that it has obtained the consent of any third party for the use of that party’s personal information in this way, or otherwise that such processing is lawful, and indemnifies HOSTAFRICA from any claim brought by such third party as a result of its failure to do so.
  5. HOSTAFRICA will use reasonable endeavours to ensure the safekeeping of any Data or content which may be uploaded to the HOSTAFRICA servers from time to time, such as and without being limited to, photographs, websites, videos and e-mail messages (hereinafter collectively referred to as “your data”). However, HOSTAFRICA does not provide any guarantees against data loss, and as such you agree to retain your own backups of your Data and indemnify and hold harmless Host Africa from any claims as a result of your Data being lost for whatsoever reason.

MARU AFRICA & HOSTAFRICA shall immediately delete all of your Data from the HOSTAFRICA servers upon termination of the Service or termination of this Agreement. It is thus your responsibility to ensure that you have made local copies of all of your Data prior to the termination of the Service. HOSTAFRICA shall not retain backups of any kind once the Service is terminated.

© Maru Africa Pty Ltd. All Rights Reserved.