This Web Services Agreement (this "agreement") is between sparrowhawk.cloud trading as Sparrowhawk IT Services (Pty) Ltd and the person (individual, legal person or legal entity) whose signs sparrowhawk.cloud's service order and set up form (the "order") incorporating this Agreement by reference (the "customer"). This Agreement governs the customer's use of sparrowhawk.cloud's web services.
Subject to the terms of this agreement, and contingent on Customer's satisfaction of sparrowhawk.cloud's credit approval requirements, sparrowhawk.cloud agrees to provide the web services described in the order for the fees stated in the order.
The initial service term of the agreement shall begin on the date that sparrowhawk.cloud generates & sends an e-mail communication to the customer announcing the activation of the customer'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 customer 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."
Fees are payable in advance on the first day of each billing cycle. The customer'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 customer 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 customer via electronic mail to the primary customer 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.
Payments will be made in South African Rands (ZAR) if payments are made via Electronic Funds Transfer (EFT) or via PayFast. Payments will be converted to United States dollars (USD) if payments are made via PayPal using currency conversion. The customer is responsible for providing sparrowhawk.cloud with changes to billing information (such as credit card expiration, 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. Customer agrees to pay sparrowhawk.cloud 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.
(b) Fee Increases.
sparrowhawk.cloud may increase its fees for services effective the first day of a renewal term by giving notice to the customer of the new fees at least forty five (45) days prior to the beginning of the renewal term, and if the customer does not give a notice of non-renewal as provided in Section 2 above, the customer 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).
At sparrowhawk.cloud's request the customer 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.
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.
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.
(f) Early Termination.
The customer acknowledges that the amount of the fee for the service is based on the customer'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 customer's breach of the agreement in accordance with section 9 (Termination), or the customer 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.
All disputes & overcharges must be reported directly to sparrowhawk.cloud, in writing, within thirty (30) days. Any customer 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 customer agrees to pay a "research fee" of R50.00 ZAR per dispute regardless of the actual validity of the charge.
4. Law / AUP
Customer agrees to use the service in compliance with applicable law and sparrowhawk.cloud's acceptable use policy posted at https://sparrowhawk.cloud/legal/acceptable-use-policy/ (the "AUP"), which is hereby incorporated by reference in this agreement. The customer 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 customer's use of the services. Amendments to the AUP are effective on the earlier of sparrowhawk.cloud's notice to the customer that an amendment has been made, or the first day of any renewal term that begins subsequent to the amendment. The customer 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 customer regarding the interpretation of the AUP, sparrowhawk.cloud's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
The customer 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 customer is an individual, the customer 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 Customer Contact on the order with regard to the customer's account until the customer has provided a written notice changing the primary customer contact.
The customer 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 customer's services in violation of applicable law or the AUP by the customer or any person using the customer's log on information, regardless of whether such person has been authorized to use the services by the customer.
7. 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.
8. 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 customer for three months of service.
(a) Suspension of Service.
The customer agrees that sparrowhawk.cloud may suspend services to the customer without notice and without liability if: (i) sparrowhawk.cloud reasonably believes that the services are being used in violation of the AUP; (ii) Customer 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 customers, or (iv) as requested by a law enforcement or regulatory agency. The customer shall pay sparrowhawk.cloud's reasonable reinstatement fee if service is re-instituted following a suspension of service under this subsection.
The agreement may be terminated by the customer 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 customer'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 Customer is overdue on the payment of any amount due under the agreement; (ii) Customer 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; (iii) upon one (1) days notice if the customer's service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if the customer violates section 5 (Customer Information) of this agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information
The customer agrees that sparrowhawk.cloud may, without notice to the customer, (i) report to the appropriate authorities any conduct by the customer or any of the customer's customers or end users that sparrowhawk.cloud believes violates applicable law, and (ii) provide any information that it has about the customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
The customer agrees to maintain a current copy of all content hosted by sparrowhawk.cloud notwithstanding any agreement by sparrowhawk.cloud to provide back up services.
12. Changes to sparrowhawk.cloud's Network
Upgrades and other changes in sparrowhawk.cloud's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the customer's hosted content and / or applications. sparrowhawk.cloud reserves the right to change its network in its commercially reasonable discretion, and sparrowhawk.cloud shall not be liable for any resulting harm to the customer.
Notices to sparrowhawk.cloud under the agreement shall be given via electronic mail to the e-mail address posted for customer support on https://sparrowhawk.cloud/submitticket Notices to the customer shall be given via electronic mail to the individual listed as the primary customer contact on the order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the date of delivery. The customer may change his, her or its notice address by a notice given in accordance with this section.
14. Force Majeure
sparrowhawk.cloud shall not be in default of any obligation under the agreement if the failure to perform the obligation is due to any event beyond sparrowhawk.cloud's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law / Disputes
The agreement shall be governed by the laws of South Africa, exclusive of its choice of law principles, and the laws of South Africa, as applicable. The agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This agreement may be amended only by a formal written agreement signed by both parties. The terms on the customer's purchase order or other business forms are not binding on sparrowhawk.cloud unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the agreement. A party's waiver of any of its right under the agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the agreement are not part of the agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the agreement. There are no third party beneficiaries to the agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the agreement. The customer may not transfer the agreement without sparrowhawk.cloud's prior written consent. sparrowhawk.cloud's approval for assignment is contingent on the assignee meeting sparrowhawk.cloud's credit approval criteria. sparrowhawk.cloud may assign the agreement in whole or in part.
This agreement together with the order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
17. Refuse Service
sparrowhawk.cloud reserves the right to refuse service to any active or in-active customers for any reason it deems necessary.
Monthly Web Design
Templates are customed designed & implmented into a CMS (Content Management System), we limit the monthly web design to one template per site. Should an entiely different template be desired in addiiton to the one provided .i.e. for a page that carries an enirely different design than the rest of the site, a mini site etc. there will be a communicated additional cost.
Allocated Monthly Updates
The update process follows submission of content by the customer & the creation of content is not part of the monthly web design service, unless otherwise agreed upon as an additional service. Updates are free & our hourly rate is not relfective in the monthly pricing. Once the update time allocation has been exhausted a notifcation will be sent to the customer from which point it may be decided to continue the updates at a paid hourly rate of R199 per hour, alternatively the customer may wait till the time allocation refreshes at the commencing of the next paid month.