This Client Agreement together with the Service Terms, Service Level Agreements, Privacy Policy & Acceptable Use Policy of sparrowhawk.cloud constitute the entire Agreement (this "agreement") between sparrowhawk.cloud trading as Sparrowhawk IT Services (Pty) Ltd, registration number 201741255907 and the person (individual, legal person or legal entity) who signs sparrowhawk.cloud's service order and set up form (the "order") incorporating this Agreement by reference (the "client"). This Agreement governs the client's & client’s end user/s use of sparrowhawk.cloud's services.
1. Services
Subject to the terms of this agreement and the client's order approval, sparrowhawk.cloud agrees to provide the services described in the order for the fees stated in the order.
2. Term
The initial service term of the agreement shall begin on the date that sparrowhawk.cloud generates & sends an e-mail communication to the client announcing the activation of the client's account (the "service commencement date") and shall continue for the number of months stated in the Order (the "initial term"). Upon expiration of the initial term, this agreement shall automatically renew unless sparrowhawk.cloud or the client provides the other with written notice of non-renewal through the client area which is located at https://sparrowhawk.cloud/clientarea. The initial term and any renewal term may be referred to collectively in this agreement as the "term."
3. Payments
3.1 Fees. Fees are payable in advance on the first day of each billing cycle. The client's billing cycle shall be monthly, quarterly, semi-annually, annually, or bi-annually as indicated on the order, beginning on the service commencement date. sparrowhawk.cloud may require payment for the first billing cycle before beginning service. If the order provides for credit / debit card billing, the client authorizes sparrowhawk.cloud to bill subsequent fees to the credit / debit card on or after the first day of each successive billing cycle during the term of this agreement; otherwise sparrowhawk.cloud will invoice the client via electronic mail to the primary client contact listed on the order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 10th day following invoice date.
The client is responsible for providing sparrowhawk.cloud with changes to billing information (such as change in billing address) at its option. sparrowhawk.cloud may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Client agrees to pay sparrowhawk.cloud a reasonable reinstatement fee following a suspension of service for non-payment, and to pay sparrowhawk.cloud reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
3.2 Fee Increases. sparrowhawk.cloud may increase its fees for services effective the first day of a renewal term by giving notice to the client of the new fees at least forty five (45) days prior to the beginning of the renewal term, and if the client does not give a notice of non-renewal as provided in Section 2 above, the client shall be deemed to have accepted the new fee for that renewal term and any subsequent renewal terms (unless the fees are increased in the same manner for a subsequent renewal term).
3.3 Taxes. At sparrowhawk.cloud's request the client shall remit to sparrowhawk.cloud all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on sparrowhawk.cloud); regardless of whether sparrowhawk.cloud fails to collect the tax at the time the related services are provided.
3.4 Refunds. Refunds are carried out in the form of credits & are only valid on the initial term for web hosting services. Refunds for cloud servers are made minus the pro-rata use. Refunds are not available on domain registrations, or any other services not listed here. Refunds are not available on account renewals.
3.5 Credits.At times when a credit is issued to an account for any reason, this credit is non-refundable. Furthermore any positive credit balance on an account at the time of account termination is immediately forfeited.
3.6 Early Termination. The client acknowledges that the amount of the fee for the service is based on the client's agreement to pay the fee for the entire initial term, or renewal term, as applicable. In the event sparrowhawk.cloud terminates the agreement for the client's breach of the agreement in accordance with section 9 (Termination), or the client terminates the service other than in accordance with section 9 (Termination) for sparrowhawk.cloud's breach, the unpaid fees for each billing cycle remaining in the initial term or then-current renewal term, as applicable, are due on the business day following termination of the Agreement.
3.7 Charge-backs. All disputes & overcharges must be reported directly to sparrowhawk.cloud, in writing, within thirty (30) days. Any client that initiates a charge-back, reversal, retrieval request, or other dispute with their credit card issuing bank and/or PayPal, PayFast ("Dispute") will be immediately suspended or terminated pending investigation. The client agrees to pay a "research fee" of R50.00 ZAR per dispute regardless of the actual validity of the charge.
4. Law / AUP
Client agrees to use the service in compliance with applicable law and sparrowhawk.cloud's acceptable use policy posted at https://sparrowhawk.cloud/acceptable-use-policy (the "AUP"), which is hereby incorporated by reference in this agreement. The client agrees that sparrowhawk.cloud may, in its reasonable commercial judgement consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the client's use of the services. Amendments to the AUP are effective on the earlier of sparrowhawk.cloud's notice to the client that an amendment has been made, or the first day of any renewal term that begins subsequent to the amendment. The client agrees to cooperate with sparrowhawk.cloud's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between sparrowhawk.cloud and the client regarding the interpretation of the AUP, sparrowhawk.cloud's commercially reasonable interpretation of the AUP shall govern.
5. Client Information
The client represents and warrants to sparrowhawk.cloud that the information he, she or it has provided and will provide to sparrowhawk.cloud for purposes of establishing and maintaining the service is accurate. If the client is an individual, the client represents and warrants to sparrowhawk.cloud that he or she is at least 18 years of age. sparrowhawk.cloud may rely on the instructions of the person listed as the Primary client Contact on the order with regard to the client's account until the client has provided a written notice changing the primary client contact.
6. Your Responsibilities
6.1 Your Account/s. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorised by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
6.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law.
6.3 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
7. Indemnification
The client agrees to indemnify and hold harmless sparrowhawk.cloud, sparrowhawk.cloud's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the client's services in violation of applicable law or the AUP by the client or any person using the client's log on information or services, regardless of whether such person has been authorized to use the services by the client.
8. Disclaimer of Warranties
sparrowhawk.cloud does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law sparrowhawk.cloud disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and and non-infringement. To the extent permitted by applicable law, all services are provided on an "as is" basis.
9. Limitation of Damages
Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages. Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of sparrowhawk.cloud and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by client for three months of service.
10. Suspension/Termination
9.1 Suspension of Service. The client agrees that sparrowhawk.cloud may suspend services to the client without notice and without liability if: (i) sparrowhawk.cloud reasonably believes that the services are being used in violation of the AUP; (ii) client fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) sparrowhawk.cloud reasonably believes that the suspension of service is necessary to protect its network or its other clients, or (iv) as requested by a law enforcement or regulatory agency. The client shall pay sparrowhawk.cloud's reasonable reinstatement fee if service is re-instituted following a suspension of service under this subsection.
9.2 Termination. The agreement may be terminated by the client prior to the expiration of the initial term or any renewal term without further notice and without liability if sparrowhawk.cloud fails in a material way to provide the service in accordance with the terms of the agreement and does not cure the failure within ten (10) days of the client's written notice describing the failure in reasonable detail. The agreement may be terminated by sparrowhawk.cloud prior to the expiration of the initial term or any renewal term without further notice and without liability as follows:
(i) upon ten (10) days notice if client is overdue on the payment of any amount due under the agreement;
(ii) client materially violates any other provision of the agreement, including the AUP, and fails to cure the violation within thirty (3) days of a written notice from sparrowhawk.cloud describing the violation in reasonable detail;