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Terms and Conditions

121Net Standard Terms and Conditions

Definitions

For purposes of these Conditions, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:

1.1 Acceptable Use Policy

The acceptable use policy of 121Net from time to time which forms part of the Conditions;

1.2 Affilliates

The directors, managers, shareholders or members, agents, representatives, holding companies and subsidiary companies (as those terms are defined in the Companies Act, 2008) of 121Net;

1.3 Applicable Laws

All applicable laws and regulations in the RSA and/or internationally, as the case may be;

1.4 Application Form

the 121Net application form and / or email request, completed by the Customer setting out the services which the Customer wishes to purchase from 121Net (for example, Fibre-To-The-Home internet);

1.5 Business Customer

a Customer that:
1.5.1. is a juristic person; and
1.5.2. operates with more than 5 registered employees; and/or
1.5.3. has requested business-specific services to be rendered by 121Net to it;

1.6 Conditions

These terms and conditions for the provision and use of the Services (including all rules, policies, procedures, and notices applicable thereto) which are set out in this document and which may be amended by 121Net from time to time without notice to any third party or user;

1.7 121Net Infrastructure

The network and systems of 121Net used to provide services to its customers and users;

1.8 121Net

121Net, a brand of Blue Sky Satellite Communications a close corporation with registration number 1998/026831/23 incorporated under the laws of the RSA;

1.9 CPA

The Consumer Protection Act, 2008;

1.10 Customer Premises

the address provided by the Customer in the Application Form for purposes of installing the Equipment and at which the Services will be utilised;

1.11 Customer Zone

Customer portal where invoices and services can be maintained. https://Coolzone.cisp.co.za;

1.12 Customer

The person who will be liable for compliance with the Conditions and who:
1.12.1. has applied for the Services (using an Application Form or otherwise); and/or
1.12.2. 121Net has agreed to provide the Services to; and/or
1.12.3.  will be liable for the payment of the Fees; and/or
1.12.4.   makes use of the Services;

1.13 Equipment

The equipment (being moveable property) specified in the Application Form and supplied by 121Net to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilise the Services;

1.14 Fees

The fee payable by the Customer to 121Net in consideration for the provision of the Services;

1.15 Invoice Date

The date on which 121Net issues the Invoice to the Customer (which date is reflected on the Invoice), being the date specified by the Customer in the Application Form;

1.16 Invoice

The invoice issued by 121Net to the Customer setting out the Fees (which may include an itemised bill on request or where this is specified as part of the Services provided to the Customer);

1.17 Parties

The Customer and 121Net (or any one of them as the context requires);

1.18 Prime Rate

The prime interest rate charged from time to time by 121Net’ commercial bankers to its most favoured corporate customers in respect of unsecured overdraft draft facilities;

1.19 RSA

The Republic of South Africa;

1.20 Services

The service/s provided by 121Net to the Customer as per the Application Form, including all software and Equipment necessary for the provision of the Service/s;

1.21 VAT

Value-added tax as defined in the Value-Added Tax Act, 1991;

• All monetary amount in these Conditions are exclusive of VAT, unless otherwise stated

• In circumstances of the CPA being applicable to these Conditions, the provisions of the CPA will prevail in the event of a conflict between any provision of the Conditions and the provisions of the CPA.

2. Introduction

• These Conditions set out the terms and conditions in terms of which 121Net will provide the Services to the Customer on a pre-paid basis. The usage terms are binding on the customer and the customer accepts the usage terms by using the service.

• 121Net is entitled to amend these Conditions from time to time and will place the amended Conditions on the 121Net website (www.121net.co.za) which amendment will bind the Customer from the date that the amendment has been published on the 121Net website

3. Duration

• As all services are offered on a Pre-Paid basis the duration will be at the discretion of the user.

4. Payment

General

• 121Net will provide the Customer with a service based on a Pre-payment via the Portal.

• Pre-paid services are billed as per the advertised prices on the Gaia-Net Portal. Prices are inclusive of VAT.

• In respect of a Customer making use of the 121Net VOIP services, residential and business VOIP customers will have a R200 and R1000 default credit limit per month respectively, to avoid unauthorised usage and charges on the account.

• In order to increase or decrease the default credit limit, the Customer must submit a written request to that effect to info@121net.co.za.

• If your line has been suspended due to non-payment you are still liable for the line fee for the months the line is suspended. Should you wish to cancel the billing you will need to send a cancellation request to our accounts department info@121net.co.za. Should you wish to reconnect the cancelled services you will be charged a re-connection fee depending on the Fibre network you are connecting to. The reconnect fee will need to be paid before we can reconnect your services.

Methods of Payment

• The Customer may only pay the Fees be by means of Payfast, or by using a credit card (only MasterCard and VISA are acceptable), or an instant electronic funds transfer (EFT).

• If the preferred method of payment by the Customer is EFT, it is the sole responsibility of the Customer to ensure that all payments are made using the correct beneficiary reference as indicated on the Invoice. Failure to comply may result in an incorrect allocation of the payment which may cause service disruption as a result of the account being suspended due to non-payment.

• For purposes of payment by credit card, the merchant outlet country at the time of presenting payment options to the cardholder is the RSA and the transaction currency is South African Rand (ZAR).

Fee Increases

The Customer acknowledges and agrees that 121Net will be entitled, on 30 days’ written notice to the Customer, to increase the Fees payable by the customer in circumstances of the direct costs to 121Net in providing the Services (including, without limitation, the charges charged by the network provider(s) in respect of such services) being increased. The increases to the Fees shall be commensurate with the increased costs of providing the Services.

Refunds

• 121Net will not credit any customer because of Fibre downtime caused by maintenance on a fibre line, break in connection, power failures, slow speeds caused by FNO’s network, load shedding or any reason caused by third parties.

• All 121Net webhosting plans come with a 30-day money back guarantee. If the Customer is not completely satisfied with the 121Net webhosting service within the first 30 days, and has provided 121Net with a written notice thereof, the Customer will be given a refund of the contract amount excluding setup fees (if any) and overages, provided that such contract amount has already been paid to 121Net. Fees and costs in relation to domain registrations, Domain renewals, domain ID protection and dedicated servers are not refundable.

5. Services and Equipment

General

• 121Net provides the Services to the Customer in terms of the Conditions.

• All Services are provided to the Customer on a weekly or monthly basis (except for domain registration services which are provided on an annual basis), and will automatically end of each week or month unless renewed by the Customer in accordance with these Conditions. 

Equipment

• 121Net will supply equipment at the Customer Premises, however, ownership of the Equipment will remain vested in 121Net unless:
- 121Net and the Customer have agreed otherwise in writing; or
- If the Customer has purchased the Equipment from 121Net and paid to 121Net the purchase price of such Equipment in full.

• Without limiting the generality of clause 2.1, it is noted that the Customer will be supplied with a free to use Gigabit router if the Services include a 1000/100Mbps Uncapped Fibre package. Upon cancellation or downgrade of such a 1000/100Mbps Fibre package to a lower speed, 121Net will arrange collection of the Gigabit router from the Customer and supply the Customer with an entry level Dual Band router as an alternative.

• 121Net will maintain the Equipment (excluding Equipment in terms of clauses 2.1.1 and 5.2.1.2) at its own cost, provided that the Customer will be liable to 121Net for any damage, destruction or theft of the Equipment which damage, destruction or theft is attributable to the Customer’s acts or omissions.

• 121Net has the right to inspect the Equipment at all reasonable times during the currency of the Conditions and to remove the Equipment on termination of these Conditions for any reason.

• Other than the Equipment, 121Net will not be liable for the maintenance of any equipment provided by or on behalf of the Customer and/or whether utilized in conjunction with the Services.

• Remote Support / Support Services
- for any remote assistance, the customer needs to call 121Net call centre or open a ticket via info@121net.co.za  

6. Passwords, IP Addresses and Account Holder Details

• The Customer is responsible for maintaining the confidentiality of its password and other related sensitive information for its user account. In the event of a breach of security through the Customer’s account, the Customer will be liable for any unauthorized use of 121Net Infrastructure and Services, including any damages resulting there from, until the Customer notifies 121Net customer service of such a breach and 121Net has been able to rectify the breach.The Customer will be liable for any additional costs incurred by 121Net due to poor passwords or other credentials of the Customer in relation to the Customer’s user account (for example: blank passwords or “test” accounts).

• If 121Net assigns the Customer an Internet Protocol address in connection with its use of the 121Net Infrastructure and/or Services, the ownership of and right to use that Internet Protocol address will remain with and belong only to 121Net, and the Customer will have no right to use that Internet Protocol address except as allowed by 121Net in its sole and absolute discretion.

7. Limitation and Variation of Services

General Limitations and Variations

• The Customer acknowledges and agrees that:

• 121Net may establish limits in relation to the use of the Services and/or any other 121Net service offered on any 121Net web site, including without limitation the maximum number of days that e-mail messages will be retained by any 121Net service, the maximum number of e-mail messages that may be sent from or received by an account on any 121Net service, the maximum size of an e-mail message that may be sent from or received by an account on any 121Net service, the maximum disk space that will be allotted on 121Net servers on behalf of the Customer (either cumulatively or for any particular service);

• 121Net has no responsibility for and/or is not liable for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any 121Net service;

• the features, parameters (for example, the amount of storage available to users) or existence of any 121Net may change at any time and 121Net endeavours to notify the Customer if any such changes will affect it;

• 121Net reserves the right to select the server for the Customer’s website (if any) for best performance;the Services provided by 121Net are provided on a shared server and accordingly, one website cannot be permitted to overwhelm the server with heavy CPU usage (for example from the use of highly active CGI scripts or chat scripts). If the Customer’s website (if any) overwhelms the server and causes complaints from other users, the Customer must relocate its website. If the Customer refuses to comply with this clause 1.1.5, then 121Net has the right to terminate the Services without refunding the unused portion of the Fees prepaid by the Customer.

Reliance on Third Parties

• Whilst 121Net operates the 121Net Infrastructure, 121Net hereby advises the Customer that 121Net does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide separate but interrelated and connected services which as a whole, allows the 121Net Infrastructure to function. These third parties operate as independent service providers who are not necessarily contracted by 121Net and the Customer accepts and acknowledges this fact.

• Whilst 121Net will use its best endeavours to ensure that the Services are operational at all times, 121Net does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on the actions and/or input of a number of independent third parties whom 121Net has no direct control over. Accordingly, 121Net will not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether 121Net has entered into a service level agreement with such third party).

• Notwithstanding the provisions of this clause 2, 121Net will use its best endeavours to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where 121Net is in a position to do so.

8. Upgrades and Downgrades

• A downgrade occurs when the Customer changes its current package to a package with a lower cost, for example: changing from a Home Uncapped 20/2Mbps account at R809 to a Home Uncapped 10/2Mbps account at R649 would be considered a downgrade.

• An upgrade would be the opposite of a downgrade.

• The upgrade and downgrade on Pre-paid can take place on a weekly basis.Upgrades or downgrades must be done using the Customer Portal found on the 121Net website. The Customer must contact 121Net to establish the lead time for such an upgrade or downgrade via the 121net portal.

• There is no additional charge for upgrades or downgrades.

9. Idemnity and Limitation of Liability

• The Customer agrees to indemnify 121Net (and its Affiliates) and at all times keep it indemnified against all losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgements whatsoever in relation to or arising directly or indirectly out of the provision by 121Net of the Services, and the Customer will reimburse 121Net from time to time for all costs and expenses (including legal and other professional fees) that 121Net may reasonably incur in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration in which 121Net is a party and whether or not resulting in any liability on its part, except to the extent that such action or claim is found in final judgement to be the direct result of 121Net’ fraud, gross negligence or breach of these Conditions.

• Subject to the provisions of the CPA to the extent that the CPA is applicable to these Conditions and to the Customer, 121Net will not be liable to the Customer, or any third party claiming through or on behalf of the Customer, in respect of any claim whatsoever, whether in contract, delict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by 121Net of the Services, except to the extent that such losses, damages, costs or expenses incurred by the Customer are found in final judgement to be the direct result of fraud, gross negligence or breach of these Conditions by 121Net. In these or any other circumstances, the maximum amount of the liability of 121Net in respect of such losses, damages, costs or expenses will be limited to the amount of Fees that have been paid to 121Net by or on behalf of the Customer in connection with the Services.

• Without limiting the generality of clause 2, 121Net will not (other than in circumstances of the gross negligence or fraudulent intent of 121Net) be liable for any damage or loss suffered by the Customer caused by and/or attributable to:
- the Services being interrupted, suspended or terminated, for whatsoever reason; and/or
- communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever; and/or
- circumstances that constitute a force majeure event (as contemplated in clause 12); and/or
- the Customer’s failure to perform its obligations under these Conditions; and/or
- changes made to the Customer’s operating environment which were not communicated to 121Net; and/or
- a power failure or power interruptions at any site from where the Services or any component of the Services are rendered; and/or
- any failure or delay by the Customer to report problems or queries to 121Net’ call centre and/or
- the server and/or equipment of any recipient party being non-functioning for any reason whatsoever; and/or
- the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the supplier and/or the customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the services;
- the unavailability of 121Net website for any reason whatever; and/orthe Customer using the Service for any unlawful, improper or immoral purpose; and/or
- the unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, PBX or other telecommunication equipment.

10. Warranties

Subject to any warranties that may be implied by the CPA to the extent that the CPA is applicable to these Conditions and the Customer, 121Net does not, make any representations nor, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services or the Equipment including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose, nor that the Services will be error-free, secure or uninterrupted.

11. Force Majeure

• 121Net will not be liable for any delay in performing or any failure to perform any of its obligations in terms of the Conditions due to any cause beyond its reasonable control.

• Upon the occurrence of any delay or failure referred to in this clause 12, the provisions of the Conditions which are affected shall be suspended for as long as the cause in question continues to operate, provided that if the delay or failure referred to in this clause 12, has not ceased to operate within a period of 3 months from the date upon which it arose, the Services may by way of notice in writing be cancelled by either Party.

12. Cancellation

• There is no cancellation policy as all the services are offered on a pre-paid basis.
• All equipment remains the property of 121net.

13. Dispute Resolution

• Any dispute between the Parties in regard to any matter arising out of any Invoice and/or these Conditions or their interpretation or their respective rights and obligations arising thereunder or their cancellation or any matter arising out of their cancellation, must first be (attempted to be) resolved by the Customer and a manager of 121Net in accordance with the following procedure:

• The Customer must submit to complaints@121net.co.za, a written complaint / dispute setting out the Customer’s full particulars, contact details, customer reference number, relationship with 121Net, statement of reasons for the complaint / dispute and any relevant evidence or supporting documentation;121Net must:

• Acknowledge receipt of the complaint / dispute within 3 business days of its submission by the Customer; and

• determine the outcome of the complaint / dispute, and communicate this result to the Customer within 14 business days of the above acknowledgement.

• 121Net will not entertain any dispute / complaint in respect of an Invoice or Fees based on unauthorised use of the Services, it being the Customer’s responsibility to safeguard access to the Services which it receives and to use the Services in the manner set out in these Conditions.

• Should any disputed overages be accurate (within a 5% margin), a once of charge of R150 (excluding VAT) per domain server will be applied to your account.

• If the Customer is not satisfied with the outcome in clause 1.2.2, then the complaint / dispute will be submitted to and determined by arbitration. Such arbitration will be held in Johannesburg unless otherwise agreed to between the Parties in writing and will be held in a summary manner with a view to the proceedings being completed as soon as possible.

• There will be 1 arbitrator whose appointment will be agreed upon between the Parties, but failing agreement between them within a period of 10 Business Days after the arbitration has been demanded, either of the Parties will be entitled to request the chairperson for the time being of the Johannesburg Bar Council to make the appointment who, in making his appointment, will have regard to the nature of the dispute.

• The decision of the arbitrator will be final and binding on the Parties, and may be made an order of any court of competent jurisdiction.

• Each of the Parties hereby submits itself to the jurisdiction of the Gauteng Local Division of the High Court of South Africa, Johannesburg should the other Party wish to make the arbitrator’s decision an order of that Court.

14. Confidentiality

121Net will keep all information supplied to, or acquired by it in connection with any order in terms of these Conditions strictly confidential, shall not use such information or any part thereof for any purpose other than permitted under these Conditions.

15. Notices

Notices required by these Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery, fax or by email. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th business day after posting. Emails and faxes will be deemed to be received on the business day they are sent if sent before 16h00 on that day or on the next business day thereafter is sent after 16h00 on a business day or if sent on a non-business day.

16. Personal Information

• By requesting and utilising the Services, the Customer consents to:121Net recording and storing, in a secure manner, the Customer’s personal details for record-keeping purposes and in order to comply with its obligation in terms of these Conditions;

• 121Net providing the Customer’s personal details to any law enforcement agencies upon it being requested to do so;

• 121Net using location based services for any lawful or third party service;

• Cookies being stored to provide customized services (if any);certificates being stored;

• 121Net, third party vendors / partners redirecting the Customer to third party vendor payment processing partners; and

• 121Net making the Customer’s personal information available to its Affiliates, provided that such personal information will not be provided to or sold to any third parties which are not Affiliates of 121Net without the prior written consent of the Customer.

17. General

• The Customer will not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of the Conditions and/or the Services, in whole or in part, to any other party or person without the prior written consent of 121Net.

• No Party will have any claim or right of action arising from any undertaking, representation or warranty not included in these Conditions.

• No extension of time, relaxation or indulgence granted by 121Net to the Customer will be deemed to be a waiver or tacit amendment of 121Net’ or the Customer’s rights in terms hereof, nor will any such relaxation or indulgence be deemed to be a novation or waiver of the terms and conditions of these Conditions.

• Each of the provisions of these Conditions will be considered as separate terms and conditions and in the event that these Conditions are affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited or unenforceable provision was not a part hereof.

• All costs, charges and expenses of any nature whatever which may be incurred 121Net in enforcing its rights in terms of these Conditions, including without limiting the generality of the afore going, legal costs on the scale of attorney and own Customer and collection commission, irrespective of whether any action has been instituted, will be recoverable on demand from the Customer against which such rights are successfully enforced and will be payable on demand.

• The validity of these Conditions, their interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of these Conditions or their performance will be determined in accordance with the laws of South Africa.This Agreement supersedes and cancels any and all previous agreements between 121Net and the Customer relating to the subject matter hereof.

18. Acceptable Use Policy

General and Acceptable Use

• The provisions of the Acceptable Use Policy:

• form part of the Conditions;

• are binding on the Customer; and

• are intended as guidelines and are not meant to be exhaustive.

• Generally, conduct that violates any law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in the Acceptable Use Policy, is prohibited. 121Net prohibits activities that may damage its commercial reputation and goodwill and reserves the right to take such steps as it may deem required in order to protect itself from such damage being caused by the Customer.

• The Customer must:
- use the Internet and 121Net Infrastructure for his/her own personal use only and must do so with respect, courtesy, and responsibility, giving due regard to the rights of other Internet and/or 121Net Infrastructure users;
- have a basic knowledge of how the Internet functions, the types of uses which are generally acceptable, and the types of uses which are to be avoided.

• The Customer acknowledges and agrees that 121Net is unable to exercise control over the content of the information passing over the 121Net Infrastructure and the Internet, including any websites, electronic mail transmissions, news groups or other material created or accessible over the 121Net Infrastructure. Accordingly, 121Net is not responsible for the content of any messages or other information transmitted over the Infrastructure and/or Internet.

• The Customer agrees to indemnify 121Net and its Affiliates in full and on demand from and against any loss, damage, costs or expenses which they may suffer or incur directly or indirectly as a result of the Customer’s use of the 121Net Infrastructure and/or Internet otherwise than in accordance with the Acceptable Use Policy, the Conditions and the Applicable Laws.

Prohibited, Unacceptable and Unlawful Use

• The 121Net Infrastructure may be used only for lawful purposes and Customers may not violate any Applicable Laws when using the 121Net Infrastructure and/or the Internet.

• Transmission, downloading, distribution or storage of any material on or through the 121Net Infrastructure in violation of Applicable Laws by the Customer is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secrets or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, violates export control laws, constitutes child sexual abuse imagery, pirated software, illegal downloads, “Hackers programs or archives”, “Warez Sites”, “IRC Bots”, “Illegal Mp3’s”, drug dealing or other illegal activities.

• The Customer is prohibited from posting of defamatory, scandalous, violent or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.

• 121net does not guarantee a minimum speed at all. The service is based on a best effort broadband basis. Speeds will vary from time to time.Speeds are offered as an “Up to” speed.

Web Hosting

• Due to the nature of a shared web hosting environment, 121Net reserves the right to ask Customers to upgrade or correct issues pertaining to upgrade their shared web hosting package, or to correct issues on their shared web hosting package, should it adversely affect the 121Net Infrastructure, network or server performance for the majority of the 121Net web hosting customers.

• The 121Net shared web hosting platform is intended for hosting a website with relevant content and function for a personal or small home business without the concern of traffic overages. The use of the service should not be indicative for large scale enterprises or applications where a dedicated server would be more suited.

• 121Net prohibits the use of the shared web hosting service disk space to be utilised for purposes other than its intended function, which intended function is: content hosting, personal and small enterprise email and relevant web files.

• The use by the Customer of shared or dedicated hosting services for hosting torrent boxes and/or running proxies is strictly prohibited. Servers continuously running a risk of supporting these types of services will be disabled and cancelled from the 121Net Infrastructure.

• 121Net may at any time with reasonable notice to the Customer (if such Customer makes use of the web hosting services), revise or amend its current shared and dedicated web hosting offerings relating to price, features, traffic, allocations and disk sizes.

Business Use

• The Customer acknowledges that:

• there is a distinction between residential/home internet services (fibre-to-the-home) and business services (fibre-to-the-business);

• a high number of users (on average, more than 5 users) accessing the 121Net Infrastructure and/or Internet through a single account, it would result in a higher cost incurred by 121Net to service such an account based on the 121Net uncapped, unlimited and unshaped model;

• Accordingly, the Customer acknowledges and agrees that, unless it is a Business Customer, it may not allow more than 5 users to access the 121Net Infrastructure through its account at any given time. Failure to adhere to this requirement may result in the Customer incurring additional charges and 121Net may immediately suspend or terminate the Services of such a Customer without notice.

System and Network Security

• All references to systems and networks under this section includes the Internet (and all those systems and/or networks to which the Customer is granted access through 121Net) and includes but is not limited to the 121Net Infrastructure itself.

• The Customer may not circumvent user authentication or security of any host, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, customer, host, or network (referred to as “denial of service attacks”).

• Violations of system or network security by the Customer are prohibited, and may result in civil or criminal liability. 121Net will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected.

• Examples of system or network security violations include, without limitation, the following:
- unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of 121Net;
- unauthorised monitoring of data or traffic on the network or systems without express authorisation of 121Net;
- interference with service to any user, customer, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting; and
- employing posts or programs which consume excessive CPU time or storage space, permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for their own account; or resale of access to CGI scripts installed on the 121Net servers.

Email use and Spamming

• It is expressly prohibited to send unsolicited mail messages (“junk mail” or “spam”), including, without limitation, commercial advertising and informational announcements, and the Customer will refrain from doing so.

• The Customer will not use another site’s mail server to relay mail without the express permission of the site (known as public relay) or distributing, advertising or promoting products or software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or spam.

• 121Net may examine the Customer’s mail servers to confirm that no mails are being sent from the mail server through public relay and the results of such checks can be made available to the Customer. All relay checks will be done in strict accordance with 121Net’ policy of preserving customer privacy.

• The Customer may not use the 121Net Infrastructure and/or servers to effect or participate in any of the following activities:
-Posting to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner- published FAQ or description of the group or list;
- Sending unsolicited mass e-mailings, if such unsolicited e-mailings provoke complaints from the recipients;engaging in any of the foregoing activities using the service of another provider, but channelling such activities through the 121Net Infrastructure (or a 121Net provided server, or using a 121Net provided server as a maildrop for responses)
- Falsifying user information provided to 121Net or to other users of the service in connection with use of a 121Net service.

Fair Access

• To help ensure that all Customers have fair and equal use of the Services and to protect the integrity of the 121Net Infrastructure, 121Net reserves the right, and will take necessary steps, to prevent improper or excessive usage of the 121Net Infrastructure. These steps include, but are not limited to:
- Limiting throughput;
- Preventing or limiting Service through specific ports or communication protocols; and/or
- Complete termination of Services to users who grossly abuse the 121Net Infrastructure through improper or excessive usage

• This applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited usage.

• Online activity will be subject to the available bandwidth, data storage and other limitations of the Service provided, which 121Net may, from time to time, revise at its own discretion and without prior notice to the Customer.

• All services are broadband best effort. Contention ratios are managed dynamically.

• All services are offered as an “Up to” a maximum. Maximum speeds are an indication and are not a guarantee speed.Reporting Network Abuse and ComplaintsAnyone may report a complaint, a violation or suspected violation of the Acceptable Use Policy to 121Net by contacting 121Net via email: info@121net.co.za

Breach of the Acceptable Use Policy

• 121Net may, in its sole discretion, determine what constitutes a breach of the Acceptable Use Policy.

• Upon 121Net becoming aware of an alleged violation of the Acceptable Use Policy, it may:
- initiate an investigation into this alleged violation within a reasonable time after becoming aware thereof;
- restrict or completely withdraw the Customer’s access to the 121Net Infrastructure and Internet during the investigation in order to prevent further possible unauthorized activity – in these circumstances the Customer is not entitled to service credits for these outages.

• If the Customer is found in violation of the Acceptable Use Policy, 121Net may, in its sole discretion, restrict, suspend, or terminate the Customer’s account and/or pursue other civil remedies (including but not limited to any costs associated with the investigation of a substantiated policy violation). Generally, violations will be dealt with as follows, however, 121Net may deviate from this if it determines it necessary:
- first violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Clean-up Fee of R1,500 and the Customer’s account will be reviewed for possible termination;
-second violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Clean-up Fee of R3,500 and immediate termination of the Customer’s account.

• If a violation is a criminal offence, 121Net will notify the appropriate law enforcement department of such violation.

• The Customer will be liable for any and all costs incurred by 121Net as a result of the Customer’s violation of the Acceptable Use Policy. This includes, but is not limited to, legal fees on an attorney-client basis and costs resulting from Postmaster responses to complaints from and the clean-up of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations, and an investigation fee of no more that R1,500 per hour that 121Net personnel must spend to investigate any violations.

18. Acceptable Use Policy

• If you are not happy about the outcome of the Complaint you have the right to escalate it to ICASA. If ICASA are not able to resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.

• Please note that under the ICASA Code of Conduct Regulations 2008 you must give us an opportunity to resolve the matter within the 14 day period before you have the right to escalate your complaint to ICASA.

• ICASA can be contacted in the following ways:
- 1 telephone (011) 566 3000,
- 2 fax (011) 444 1919 or
- 3 email: consumer@icasa.org.za

• Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in South Africa. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.

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