Terms and Conditions
Teacup Technology’s General Terms cover the general terms and conditions of our relationship which include the duration of the Agreement, fees payable by you, Teacup Technology’s right to monitor communications and content in specific circumstances, steps to protect the security of your data and Teacup Technology’s systems, when Teacup Technology is authorised to suspend or terminate your services and the resolution of disputes between us.
Summary of our General Terms & Conditions:
- · The Agreement will commence when Teacup Technology provides you with a username and password.
- · The Agreement is binding unless and until you or we give notice to terminate.
- · This Agreement is a tax invoice as it meets all requirements as detailed in VAT Practice Note 2, read with section 20(7) of the Value Added Tax Act of 1991.
- · We may change the features or functionality of the Services over time.
- · You must comply with the Acceptable Use Policy that applies to your use of the Services.
- · We can prevent your access to the Service/s if you breach the Agreement or for technical reasons.
- · You accept that you will have no rights to the intellectual property in Teacup Technology’s computer systems.
- · Subject to your right to withdraw your consent in certain instances, you agree that we may obtain your personal information and use it, for certain specified purposes, including for, internal Teacup Technology marketing and contract administration.
- · You agree that our liability to you is substantially limited.
- · The Agreement is subject to South African law.
- · We will use your given address as your address for service.
Teacup Technology cc Specific Terms and Conditions
Teacup Technology’s Specific Terms go into more detail and address specific issues around our email/website hosting packages, WebberOx system, TutorOx system, TeacupLive system and custom development. These terms must be viewed as an extension of our General Terms.
Teacup Technology cc General Terms and Conditions
(Last updated: 07 March 2017)
(Previous versions: 2)
Teacup Technology cc (Registration No. 2004/052772/23) ("Teacup Technology") is a South African custom software development company. Teacup Technology provides the Services to its Customers subject to the terms and conditions of the Teacup Technology Terms and Conditions, which include these General Terms as well as the Specific Terms and the Acceptable Use Policy.
In the Teacup Technology General Terms and Conditions, unless a contrary intention appears –
1.1 the clause headings in the Teacup Technology Terms have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation;
1.2 any reference to (i) the singular includes the plural and vice versa, (ii) any gender includes the other genders and (iii) a natural person includes a juristic person and vice versa;
1.3 the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to this Agreement and the Parties waive any rights they have to rely on such rules;
1.4 unless the context indicates a contrary intention, the words and expressions defined in clause 2 shall, throughout the Teacup Technology Terms, bear the meanings assigned to them in that clause 2 and similar expressions shall bear corresponding meanings;
1.5 any reference to "days" shall be construed as being a reference to calendar "days" unless qualified by the word "business" in which instance a "business day" shall be any day other than a Saturday and a Sunday and/or a public holiday as gazetted by the Government of the Republic of South Africa from time to time. Any reference to "business hours" shall be construed as being the hours between 08h30 and 16h30 on any business day;
1.6 the word "include" and "including" means "include without limitation" and "including without limitation". The use of the word "including" followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it;
1.7 terms other than those defined within these General Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings;
1.8 defined terms appearing in these General Terms in title case shall be given the meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with the ordinary meaning as qualified by clause 1.7 and shall, unless the context otherwise indicates, include the term as defined.
In the Teacup Technology Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause:
2.1 "Agreement" means the contract entered into between Teacup Technology and the Customer consisting of, inter alia, the Teacup Technology Terms and any application form, or addendum thereto, completed by the Customer;
2.2 "Commencement Date" means the date when a customer profile is created and Teacup Technology furnishes the Customer with the Customer Data;
2.3 "Customer" means (i) the party identified on the application form or in any addendum thereto, relating to the relevant Service subscribed for by the Customer and in the case of a Domain Name, means the registered holder of the Domain Name (as defined in the Specific Terms) and (ii) a Reseller enrolled under the Teacup Technology Reseller programme who hosts directly with Teacup Technology;
2.4 "Customer Data" means the username/s, password/s or e-mail address/’s provided by Teacup Technology to the Customer as part of the Services, but expressly excluding Customer Domains managed by Teacup Technology as part of the Services;
2.5 "General Terms" means these terms and conditions;
2.6 "Teacup Technology Terms" means the General Terms, the Specific Terms and the Acceptable Use Policy;
2.7 "Intellectual Property Rights" means all patents, trademarks, service marks, design rights, copyright, trade or business name, know-how, concepts, ideas, methods, procedures, processes, techniques, models, reports, templates, software or any changes or additions thereto (if any) and other similar rights or obligations, whether or not registerable, registered or application for registration thereof has been made in any party of the world;
2.8 "Marks" means any trademarks, logos, brand names, domain names or other marks of either of the Parties;
2.9 "Party" and "Parties" means Teacup Technology and the Customer;
2.10 "Services" means the services provided by Teacup Technology to the Customer;
2.11 " Fees" means fees and charges payable by the Customer to Teacup Technology in respect of the Services, which Service Fees are dealt with in clause 7 hereunder and are set out in the application form/s, and any addenda thereto, completed by the Customer in respect of the Services;
2.12 "Specific Terms" mean the terms and conditions which supplement the General Terms and govern the use of individual Services selected by the Customer;
2.13 "Website" means the website from which the Services are provided, currently being
2.14 “Application/s” means programmed software created for mobile devices.
2.15 “User/s” refers to any person accessing any part of Teacup Technology cc online applications.
3. Teacup Technology Terms
3.2 These General Terms set forth the general terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms.
3.3 To the extent that:
3.3.1 any individual Service selected by the Customer is not dealt with in the Specific Terms, such individual Service shall be governed by the General Terms and Acceptable Use Policy;
3.3.2 any Specific Terms are binding upon the Customer, those Specific Terms are deemed included in the Teacup Technology Terms.
3.4 The Acceptable Use Policy represents the terms and conditions pertaining generally to the Customer's use of the Services and specifies the activities prohibited by the Customer and is intended to enhance the use of the Internet by preventing unacceptable use. The Customer is required at all times to comply with the Acceptable Use Policy, which is deemed to form part of the Teacup Technology Terms. The Acceptable Use Policy, as amended from time to time, is posted on the Website.
4. Amendment to Teacup Technology Terms
4.1 Teacup Technology reserves the right, at any time, to amend any of the Teacup Technology Terms to which the Customer is bound without specific notice to the Customer. An updated version of the Teacup Technology Terms will be posted on the Website.
4.2 The Customer agrees that it is their responsibility as a diligent user to peruse any amended Teacup Technology Terms posted on the Website and the Customer undertakes to regularly visit the Website so as to remain advised of such amended Teacup Technology Terms.
4.3 If the Customer objects to any amended Teacup Technology Terms which are binding upon it or are to become binding upon it, the Customer is entitled to terminate its relationship with Teacup Technology upon the terms and conditions set forth in clause 14.1 below.
5. Customer Status
5.1 It is recorded that the Customer may be an incorporated entity (such as a company or close corporation), trust, partnership or individual.
5.2 To the extent that a person enters into the Agreement in a representative capacity on behalf of a Customer who is an incorporated entity or on behalf of an unincorporated entity, or in any other representative capacity recognised in South African law, the Customer hereby warrants that:
5.2.1 such person is legally authorised to do so and indemnifies Teacup Technology against any loss or damage that Teacup Technology may sustain resulting from such person's lack of authority;
5.2.2 all the information relating to the entity, trust, partnership, association or other person who he/she represents and which he/she has supplied to Teacup Technology at any time will be true, accurate and complete.
5.3 Teacup Technology reserves the right to treat all misrepresentations by the Customer or its representative as fraud and such person indemnifies Teacup Technology against any loss or damage that Teacup Technology may sustain resulting from such person's lack of authority.
5.4 If Teacup Technology discovers that the Customer has fraudulently contracted for the receipt of Services or that its representative has contracted without contractual capacity to do so, Teacup Technology will be entitled to terminate the Teacup Technology Terms and/or Service/s immediately without any further liability to the Customer whatsoever and the Customer shall not be entitled to claim any restitution or refund of any amount already paid, regardless of whether the Customer has used the Services or not.
5.5 The Customer shall, if requested by Teacup Technology, furnish Teacup Technology with sufficient evidence of the authority of the person who shall, on behalf of the Customer, take any action or execute any documents required or permitted to be taken or executed by such person under the Agreement. This would include providing proof of permission to debit from the authorised signatory of the Customer's bank account.
5.6 In the event of a dispute between individuals or entities involved with the Customer (including partners, shareholders, trustees, employees), Teacup Technology shall be entitled to act on the representation of a person claiming to be duly authorised to represent the Customer, without being obliged to obtain independent verification of such authority and the Customer indemnifies Teacup Technology from any action or inaction based on such representation. However, should Teacup Technology, in its sole and absolute discretion, require independent verification of the authority of any individual, the Customer shall provide same in a format reasonably acceptable to Teacup Technology.
6. Commencement and Duration
6.1 The application form submitted by the Customer to Teacup Technology will be treated as an offer by the Customer to make application for the Service/s. The Customer's offer shall only be deemed to have been received by Teacup Technology once this has been confirmed to the Customer by Teacup Technology. Although the Website is configured to confirm receipt of any offer ("Confirmation"), technical or other problems may delay or prevent such Confirmation. The Customer should contact Teacup Technology if it does not receive Confirmation from Teacup Technology shortly after having sent the offer. Confirmation shall not mean that a transaction has been concluded. It merely serves to confirm that the application has been received by Teacup Technology. Confirmation is deemed to have been sent by Teacup Technology as soon as this is reflected in Teacup Technology’s log files.
6.2 The Teacup Technology Terms shall commence and become binding on the Customer with effect from the Commencement Date.
6.3 The Teacup Technology Terms shall endure for an indefinite period until terminated in terms of the provisions of clause 14 below.
6.4 Both Parties record and agree that Dana Bay, Western Cape shall be deemed to be the place where the Parties have concluded the Agreement or any portion thereof.
7.1 All Fees payable by the Customer in terms of the Teacup Technology Terms for Services are payable in advance.
7.2 The Fees shall be payable on a monthly, basis as specified on the Website and are calculated in accordance with the rate schedule on the Website.
7.3 Licencing fees are subject to a seven days refund policy. If the customer is not satisfied with the product, a written request detailing the reason for cancellation must be submitted no more than seven days from payment of said licencing fee.
7.4 Fees for custom development and/or website development will be subject to quotation and will be agreed upon as such. No refunds will be granted for work completed.
7.5 The Fees shall be paid by way of internet transfer and/or direct deposit into Teacup Technology’s bank account no more than seven days after receipt of invoice.
7.6 Domain renewals occur on an annual basis, the customer will be notified of the upcoming renewal and will be invoiced accordingly.
7.7 Where the Customer's use of any service commences during a month rather than at the start of that month, the Customer will be charged on a pro rata basis for those Services provided during that month.
7.8 Teacup Technology reserves the right to amend or vary the Fees from time to time and any amendment or variation of such Service Fees will be deemed to be an amendment of the Teacup Technology Terms. In the event that Teacup Technology does amend its Fees, it will give the Customer at least thirty (30) days prior notice of such amendment to the Fees. If the Customer objects to any amended or varied Fees which affect it, it shall be entitled to terminate its relationship with Teacup Technology upon the terms and conditions set forth in clause 14.1 below.
7.9 The Customer acknowledges that it is not entitled to withhold any payment of any Fees due to Teacup Technology by reason of any alleged breach of the Teacup Technology Terms by Teacup Technology or for any other reasons whatsoever. In addition, the Customer acknowledges that it is not permitted to apply set-off to or demand any discount, refund (other than in terms of clause 7.10 below) or reduction in respect of any Fees owed to Teacup Technology.
7.10 The Customer acknowledges that the Fees stipulated are inclusive of value added tax. Should any alterations to the Value Added Tax Act, 89 of 1991 be gazetted or promulgated during the duration of the Teacup Technology Terms, resulting in a high level of Value Added Tax being attracted to any payment due under the Teacup Technology Terms, such increased Value Added Tax shall be borne by the Customer.
7.11 In the event of a dispute arising between the parties, the Customer shall be obliged to continue paying the Fees as and when they become due and payable in terms of the Teacup Technology Terms.
7.12 The Customer may terminate the Service within:
7.12.1 seven (7) days after the Commencement Date should the Customer decide not to continue subscribing for the Service/s; or
7.12.2 within thirty (30) days after the Commencement Date should Teacup Technology fail to meet the service levels for hosting services and e-mail services as specified in the Specific Terms, provided that the Customer's right to terminate shall be exercised by notice from the Customer to Teacup Technology transmitted via e-mail to email@example.com. In the event of the Customer terminating the Service for the aforesaid reasons, the Customer shall be entitled to a refund of any Service Fees. Teacup Technology shall not, however, be obliged to refund the Customer with any third party costs already incurred by Teacup Technology directly or indirectly as a result of the initial request for the Service. The Customer remains responsible for any third party costs.
7.13 In the event of a fault being reported by the customer, Teacup Technology will assist via remote access support. However if it is deemed that the fault lies with the customer’s software/computer and/or due to negligence by the customer than a standard remote access support fee will apply. These fees will be stipulated on the website.
8. Teacup Technology Online Applications
8.1 Use of Teacup Technology online applications are strictly at the sole risk of the user.
8.2 Unless otherwise indicated, users are welcome to copy, download or print any of the visible text or images for use.
8.3 Users wishing to utilize content for commercial purposes may only do so with the prior written consent of Teacup Technology cc. Enquiries regarding this must be addressed to firstname.lastname@example.org.
8.4 Users may not reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in the application.
8.5 Users may not modify, transfer, distribute, pledge, sublicence, rent, lease or create derivative works based on any Application, including its user interfaces.
8.6 Users must not use Applications for any unlawful or illegal activities.
8.7 Users must not knowingly take any action that would cause Applications to be placed in the public domain or otherwise disclosed to the public.
8.8 Data usage charges during the downloading and use of Teacup Technology cc online Applications remains the sole responsibility of the user.
8.9 Users agree to indemnify Teacup Technology cc, its officers, employees, ISP’s, subcontractors, partners, subsidiaries and/or affiliates from any demand/action, application or proceedings, including attorneys fees and related costs made by any third party and arising out of or in connection with the users use of any Teacup Technology cc online application, including but not limited to the provision of content.
8.10 To the extent permitted by law, Teacup Technology cc does not represent, warrant or guarantee the suitability, completeness, accuracy or currency of any information or content accessed via a Application or that the Application will be uninterrupted, timely, secure or error-free, free of viruses or other harmful components. The user also hereby acknowledges that, to the extent permitted by law, Apple or Google does not have any warranty or other obligations in respect of Applications.
9.1 Whilst Teacup Technology monitors its Services to determine that its facilities are operating satisfactorily, Teacup Technology does not, as a general practice, monitor its Customers activities. Where Teacup Technology is required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 ("the Monitoring Act"), any interception of communications shall be strictly carried out in accordance with the requirements of the Monitoring Act, as and when required under the Monitoring Act.
9.2 With specific regard to the monitoring of content which is found on a website belonging to a Customer and which is hosted by Teacup Technology, the Customer acknowledges that Teacup Technology has no knowledge of, nor interest in, Customer content hosted by Teacup Technology or published by Teacup Technology on the Customer's behalf using the Services and further that Teacup Technology does not in any way contribute or approve such content.
9.3 Notwithstanding this, the Customer agrees that if Teacup Technology, in its sole and unfettered discretion determines that the Customer's content is in violation of any law (including the Films and Publications Act 65 of 1996) or of the Acceptable Use Policy, it may (i) forthwith request the Customer to remove such content; and/or (ii) forthwith require the Customer to amend or modify such content; and/or (iii) without notice terminate access to any Services and/or suspend or terminate any Services; and/or (iv) without notice, delete the offending content; and/or (v) notify the relevant authorities of the existence of such content (if required by law or otherwise), make any back-up, archive or other copies of such material as may be required by such authorities, disclose such elements of the Customer data as may be requested by such authorities and take such further steps as may be required by such authorities.
9.4 The Customer specifically agrees that it shall have no recourse against Teacup Technology in the event of Teacup Technology acting in terms of clause 8 and accordingly waives its right to make any claim or demand or to institute any legal proceedings against Teacup Technology.
10.1 All Customer Data allocated to the Customer is personal to the Customer and the Customer shall be liable for any loss or damage sustained by the Customer, Teacup Technology or any third party as a result of any actions by the Customer or any other person to whom the Customer has disclosed its Customer Data.
10.2 The Customer authorises Teacup Technology to act on any instruction given by and/or purporting to originate from the Customer, even if it transpires that both Teacup Technology and the Customer have been defrauded by someone else, unless the Customer has notified Teacup Technology in terms of clause 9.3 below prior to Teacup Technology acting on a fraudulent instruction.
10.3 If any security violations are reasonably believed to have occurred in connection with the Customer's account, Teacup Technology will investigate forthwith and, if necessary, change the relevant Customer data, including access codes and passwords and give the Customer immediate notification. A copy of the results of any investigation will be provided to the Customer at no cost.
10.4 The Customer shall advise Teacup Technology immediately should any other person gain access to its Customer Data following the Teacup Technology procedures relating to reporting misuse email@example.com and shall give its full co-operation to Teacup Technology in any investigation carried out by Teacup Technology.
10.5 The Customer hereby indemnifies Teacup Technology against any claim howsoever arising from (i) the Customer's disclosure of its Customer Data to a third person, (ii) the use of such Customer Data by a third person and/or (iii) any action by the Customer or third party as a result thereof.
10.6 Teacup Technology reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its infrastructure and the Customer undertakes that it will not do or permit anything to be done which will compromise Teacup Technology’s security.
10.7 Although Teacup Technology applies reasonable endeavours to provide disaster recovery, Teacup Technology does not specify any recovery time, nor is Teacup Technology liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with any cause whatsoever as a result of its failure to provide, or delay in providing, or providing only partial disaster recovery. The Customer is required to make back-ups of its data. Nothing contained in the Teacup Technology Terms shall be construed as a representation that any back-ups of data implemented by Teacup Technology will be successful or in any way will avoid disaster.
11.1 Teacup Technology warrants that it has the facilities, infrastructure, capacity and capability to provide the Services.
11.2 Save for the aforegoing warranty, the Services are provided "as is" and "as available" and without any further warranty of any nature whatsoever, whether express or implied, including without limitation warranties of merchantability, fitness for purpose, title or non-infringement.
11.3 Under no circumstances shall any advice or information furnished by Teacup Technology, its agents or employees be construed as a warranty of any kind.
12. Intellectual Property Rights
12.1 The Customer is obliged to comply with all laws applicable to any Intellectual Property Rights in respect of any data and/or information accessed, retrieved or stored by the Customer through the Customer's use of the Services.
12.2 The Customer is prohibited from using any of the Teacup Technology Marks without the prior written approval of Teacup Technology.
12.3 The Customer hereby grants Teacup Technology a non-exclusive licence to use its Marks for the limited purposes of enabling Teacup Technology to exercise its rights or to fulfil its obligations under the Teacup Technology Terms.
12.4 Other than as specifically provided for in the Teacup Technology Hosting Terms, Teacup Technology will wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all Intellectual Property Rights employed in or otherwise related to its network infrastructure, business and the provision of any of the Services in terms of the Teacup Technology Hosting Terms.
12.5 All development/programming/system additions and/or changes remains the sole property of Teacup Technology cc and can be resold by Teacup Technology cc unless specifically stipulated and agreed to in a quotation or contract.
13. Customer Indemnities
13.1 The Customer acknowledges that the Services are provided subject to all applicable laws and the Customer accordingly hereby indemnifies Teacup Technology from any liability attributable to any regulatory body or civil or criminal proceedings instituted against Teacup Technology or for any loss or damage suffered by the Customer or any third party as a consequence of any interruption or unavailability of the Services.
13.2 The Customer hereby unconditionally and irrevocably indemnifies Teacup Technology and agrees to hold Teacup Technology free from and harmless against all losses suffered or incurred by the Customer or Teacup Technology or instituted against Teacup Technology by any third party as a direct or indirect result of the Customer's use of the Services, the Customer's failure to comply with any Teacup Technology Terms, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included, but without limitation, within the ambit of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following: (i) software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services, (ii) non-performance or unavailability, of whatever nature and howsoever arising, of any of the services provided by a electronic communications network or service provider, including, but not limited to, line failure, or in any international Services or remote mail servers, (iii) non-performance or unavailability, of whatever nature and howsoever rising, of external communications networks to which the Customer or Teacup Technology’s network infrastructure is connected and (iv) repairs, maintenance, upgrades, modifications, alternations or replacement of any hardware forming part of the Services or any faults or defects of whatever nature in such hardware.
13.3 The Customer shall defend Teacup Technology against any claim against which Teacup Technology is indemnified in terms of clause 12.2 and elsewhere in the Teacup Technology Terms ("indemnified claim") and pay any and all costs, damages and expenses (including attorneys fees on the attorney and own client scale) finally awarded against Teacup Technology by a court of competent jurisdiction or agreed to in a written settlement agreement signed by the Customer directly arising out of such indemnified claim, provided that (i) Teacup Technology shall notify the Customer in writing as soon as Teacup Technology becomes aware of the indemnified claim to enable the Customer to take steps to contest it, (ii) the Customer may assume sole control of the defence of such claim and/or related settlement negotiations and (iii) Teacup Technology shall provide the Customer, at the Customer's expense, with the assistance, information and authority necessary to enable the Customer to perform its obligations under this clause.
13.4 The Customer shall pay to Teacup Technology the amount of an indemnified claim forthwith upon receipt of request for payment unless the Customer contests the indemnified claim in which case the Customer shall pay to Teacup Technology the amount of the indemnified claim forthwith after any judgment or order is granted, provided that in those circumstances where the Customer does not at any time proceed with the contest of the claim timeously and promptly, Teacup Technology shall be entitled to require the Customer either to pay the amount of the claim in question in trust to its attorneys pending the outcome of the proceedings, or Teacup Technology shall be entitled to require the Customer to give proper and adequate security therefore.
14. Suspension of the Services
14.1 Teacup Technology is entitled to temporarily suspend its obligations in terms of the Teacup Technology Terms (i) in order to give effect to the provisions of clauses 8.3 and/or 9.5, (ii) in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the Services and/or (iii) where third parties have alleged that the Customer has engaged in unlawful activities arising from or connected to the Services.
14.2 Where circumstances permit, Teacup Technology will use its best endeavours to provide prior notice of any such suspension to the Customer and Teacup Technology shall not be liable for any loss or damage of whatever nature incurred or suffered by the Customer arising from or in connection with or from any cause whatsoever as a result of such suspension.
15.1 Termination by either Party: Either party may terminate the Teacup Technology Terms together with all Services, or individual Services, on thirty (30) days written notice (firstname.lastname@example.org) to the other Party at their chosen domicilium citandi et executandi in terms of clause 18.
15.2 All purported terms of termination communicated to Teacup Technology in any manner other than as specified above may, at Teacup Technology’s sole discretion, be deemed to have been invalidly given and without force and effect.
15.3 Breach: Should the Customer breach any of the Teacup Technology Hosting Terms, then Teacup Technology shall be entitled, without prejudice to any other rights that Teacup Technology may have and without notice to the Customer, to (i) forthwith claim immediate payment of all outstanding charges due to Teacup Technology, (ii) terminate or suspend the Customer's use of any or all of the Services, (iii) terminate its relationship with the Customer and/or (iv) list the Customer with any credit bureau or Internet service provider list or the South African Fraud Prevention Service which the Customer hereby expressly consents to. In all instances, Teacup Technology shall be entitled to retain all Services Fees already paid by the Customer and recover all of its costs associated with the Customer's breach, including without limitation, legal costs on an attorney and own client scale, whether incurred prior to the institution of, or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of such judgment.
15.4 Retention of hardware or software: The Customer acknowledges that where Teacup Technology is in possession of any hardware or software belonging to the Customer as a result of Teacup Technology’s provision of the Services to the Customer, and the Customer is in default of its payment obligations to Teacup Technology, Teacup Technology shall be entitled to retain such hardware and/or software pending the Customer's settlement of all amounts owed by the Customer to Teacup Technology. In addition, where the Customer fails to make payment of all amounts owed to Teacup Technology within sixty (60) days of any notice by Teacup Technology to the Customer in that regard, Teacup Technology shall be entitled, but not obliged, to dispose of such property in order to defray any expenses as well as any amounts owed by the Customer to Teacup Technology.
15.5 Return of hardware or software: Where the Customer is in possession of any Teacup Technology hardware or software in consequence of the provision of a Service and the Service to which that hardware or software relates is terminated, the Customer will immediately return such hardware or software to Teacup Technology and shall not be entitled to retain such hardware or software for any reason whatsoever.
15.6 Teacup Technology’s ’TeacupOx foundation’ will not be transferable to another server without permission from Teacup Technology.
15.7 Upon termination of service the Customer will be given a copy of the website content in RAW data format (not the HTML files), this will include any images that have been uploaded by the customer. If the Customer wishes to transfer his/her website to another hosting company the website must be rebuilt (this is the responsibility of the customer and/or the new hosting party), any costs incurred due to the transfer of domain/s or website/s remains for the customer’s account.
16. Force Majeure
16.1 On the happening of a Force Majeure Event, any delay or failure in performance or breach by Teacup Technology occasioned thereby or resulting therefrom will not be deemed to be a breach of the Teacup Technology Hosting Terms by Teacup Technology, nor shall it subject Teacup Technology to any liability whatsoever.
16.2 For purposes of clause 15.1, a "Force Majeure Event" means any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure and/or telecommunications lines provided by any third party, including, but not limited to, the Telkom Limited group of companies, or any circumstances of like or different nature beyond Teacup Technology’s reasonable control.
17. Dispute Resolution
17.1 Any dispute which may arise between the Parties shall be referred to arbitration and resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator.
17.2 The arbitrator shall be agreed upon between the Parties and failing such agreement, and within a period of ten (10) days after the arbitration has been demanded by either the Parties, either of the Parties shall be entitled to request the chairperson for the time being of AFSA to make the appointment who, in making the appointment, shall have regard to the Party's requirement of speedy arbitration.
17.3 Clauses 16.1 and 16.2 shall not preclude either Party from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator.
17.4 The arbitration shall be held (i) in Gauteng at a venue agreed to between the Parties in writing, (ii) in English and (iii) as soon as practically possible and with a view to it being completed within twenty one (21) days after it has been demanded.
17.5 The Parties irrevocably agree that any award that may be made by the arbitrator (i) shall be final and binding, (ii) will be carried into effect and (iii) may be made an order of any Court to whose jurisdiction the Parties are subject.
17.6 The provisions of this clause 16 (i) constitute an irrevocably consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or to claim at any such proceedings that it is not bound by such provisions and (ii) are severable from the other provisions of the Teacup Technology Hosting Terms and shall remain in effect notwithstanding the termination of, or invalidity for any reason, of any of the Teacup Technology Terms.
18. Exclusion and Limitation of Liability
18.1 Neither Teacup Technology, its directors, employees, agents, consultants and advisers shall be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising, or may arise out of the Services and/or the use thereof, under contract, delict including negligence and / or gross negligence or otherwise), sustained by the Customer, its directors and/or servants, including but not limited to any loss of profits, loss of operation time, corruption or loss of information and/or loss of contracts and/or profits.
18.2 Teacup Technology’s total liability to the Customer shall accordingly be limited to the payment of direct damages only, which direct damages shall be limited to a maximum amount of (i) three months of the Customer's base hosting fee or (ii) R2 500,00 (Two Thousand Five Hundred Rand), whichever is the lesser.
18.3 Teacup Technology’s liability for direct damages under clause 17.2 shall be excluded where such liability results or may result from the Customer's use of any third party Services or products accessible or used in conjunction with the Services, but which are not provided by Teacup Technology.
18.4 The exclusion of liability under clauses 17.1 and 17.3 and limitation of liability under clause 17.2 shall apply notwithstanding the fact that Teacup Technology may have been advised of the possibility of such loss or damage being incurred prior to its occurrence.
19. Domicilium Citandi Et Executandi
19.1 Addresses: The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:
19.1.1 Teacup Technology: 10A E.Plena Street, Dana Bay, 6540, Western Cape, South Africa,(Tel) 044 698 1866 (fax) 086 654 4813.
19.1.2 The Customer: The physical address furnished to Teacup Technology on the application form when the Customer first subscribed for the Services, as amended in writing pursuant to any change of address, which the Customer is hereby required to furnish to Teacup Technology within ten (10) days of the change of such address.
19.2 Notice or communication to be in writing: Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
19.3 Requirements for notices: Any notice to a Party (i) sent by prepaid registered post in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 10th (tenth) business day after posting, (ii) delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery, or (iii) sent by telefax to its chosen telefax number stipulated in clause 18(a), shall be deemed to have been received on the date of despatch.
20.1 Whole Agreement: The Agreement, together with the other documents making up the Teacup Technology Terms constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in the Agreement.
20.2 No Variation: No variation or consensual cancellation of the Agreement and no addition to the Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives.
20.3 Waiver: No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
20.4 Severability: Should any of the terms and conditions of the Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions, which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.
20.5 Applicable Law: The Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
20.6 Survival: Notwithstanding termination of the Agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.
21.1 Teacup Technologies utilizes cookie and other similar technologies in the running of our websites and web based applications. These cookies are for system operations and not to store and or access your personal data. These operations are to improve functionality and general experience of our websites and web based applications.
22. Data Storage and access control
22.1 All private and technical data is stored on secured servers not accessible by anyone other than key members of staff. These servers are locked down using RSA keys and cannot be accessed via traditional username and passwords. The RSA keys are stored in an undisclosed secure location.
22.2 Where needed sensitive data like passwords are stored, encrypted and cannot be read or viewed by anyone.
22.3 Where needed further 3 point access is used on system and applications that require login.
23. Backups and Servers
23.1 All data hosted and served by our administrated servers are backed up and if needed mirrored to undisclosed off site servers. These backups and mirrors happen at a frequency rate of per minute to once a day depending on the requirements.
23.2 Servers are located at a variety of locations and countries. All server farms used have been vetted and chosen based of track record and dependencies.