Nexthost Legal Department

Terms and Conditions

Terms and Conditions

Last Updated 01 January 2021

Introduction

The Terms and Conditions below govern the relationship with (us) Nexthost and (you) the customer. The purpose of this document is to ensure a clear understanding of what is permitted when using the services we offer. It is necessary to protect both parties in the event of a dispute that may arise and to ensure all our customers have a fair service, as well as ensuring a stable and reliable platform at all times.

General Terms and Conditions

By subscribing to and using the services offered by Nexthost, the Customer irrevocably agrees to be bound by the provisions of these General Terms and Conditions, the relevant Services Terms and Conditions and the Policies of Nexthost. In the event of a discrepancy between this Agreement and the Service Terms and Conditions, the Service Terms and Conditions will take precedence.

Definitions and Key Terms

  • Agreement: means these General Terms and Conditions, applicable Services Terms and Conditions, all the Policies of Nexthost and all other application or order forms, as amended and updated from time to time.
  • Service Provider: When this policy mentions "Service Provider, "Nexthost", we," "us," or "our," it refers to Nexthost (Pty) Ltd, trading as Nexthost, with its registration number: 2012/215557/07, a private company duly incorporated under the laws of South Africa, with its business address at 113 Second Avenue, Edenvale, 1609 Gauteng, South Africa.
  • Subdomain: means anything before the "dot", in the URL "nexthost.co.za", e.g. "abc.nexthost.co.za"
  • Website: means this website, accessed at https://nexthost.co.za and all sub-domains, and applies to all domains we own.
  • Client Area: means the place where you can manage your services with us, accessed at https://my.nexthost.co.za.
  • Third-party: means any vendor that Nexthost may use, such as a Datacentre to house our servers or analytics for us to better understand our customer’s needs.
  • Services: means any service or product provided by Nexthost, including the use of this Website and Client Area.
  • Device: means an internet-connected device such as a phone, tablet, computer or any other device that can be used to access any of the services provided by Nexthost.
  • Customer: means "you" or "your" A person or entity that is registered with us to use any Service(s) provided by Nexthost.
  • CPA: means the Consumer Protection Act No. 68 of 2008.
  • VAT: means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991.
  • Malicious Code: means anything that contains any computer software routine or code intended to allow unauthorised access or use of a computer system by any party, disable, damage, erase, disrupt or impair the normal operation of a computer system, and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
  • South African Law: means all and any laws and regulations of the Republic of South Africa, including but not limited to applicable codes of conduct, as may be promulgated or amended from time to time.

  • Restrictions

    You agree not to, and you will not permit others to:

    • Distribute, duplicate, transmit, disclose or otherwise commercially exploit, modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Services.
    • Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Nexthost or its affiliates, partners, suppliers or the licensors of the Services or services.
    • License, sell, rent, lease, modify, host, outsource or re-brand any of the services offered by Nexthost under any name other than those specified by Nexthost.
    • Sell, rent, lease, assign, falsify, trick, or re-brand, any of our, or any Third-party vendors Services as your own.

    License and Restrictions

    Nexthost grants you a revocable, non-exclusive, non-transferable, limited license to use our Services and services strictly per the terms stated in this document. We do not offer reseller packages, no product we offer may be re-branded and sold as your own. We need to uphold what we stand for, "speed & reliability", and need to ensure we can always deliver this.

    These Terms & Conditions are a contract between you and Nexthost (Pty) Ltd. (referred to in these Terms & Conditions as "Nexthost", "us", "we" or "our"), the service provider, (Collectively referred to in these Terms & Conditions as the "service provider").

    You are agreeing to be bound by these Terms & Conditions. If you do not agree to these Terms & Conditions, you may not use any service(s) offered by Nexthost. In these Terms & Conditions, "you" refers both to you as an individual and to the entity you represent. If you violate any of these Terms & Conditions, we reserve the right to cancel, delete or block all services without notice.

    Changes To Our Terms and Conditions

    We may change these Terms and Conditions at our discretion. You will be notified by email when changes are made; however, it is the customer's responsibility to review this Agreement for changes.

    Our Services and Client Area

    Nexthost may from time to time provide enhancements or improvements to the features and or functionality of the Client Area and/or Services, which may include patches, bug fixes, updates, upgrades and other modifications ("Updates").

    Updates may modify or delete certain features and/or functionalities of the Services. You agree that Nexthost has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Client Area and/or Services to you.

    You further agree that all Updates will be (i) deemed to constitute an integral part of the Client Area and/or Services, and (ii) subject to the terms and conditions of this Agreement.

    Third-Party Services

    We may display, include or make available third-party content (including data, information, applications and other Services services) or provide links to third-party Services or services ("Third-Party Services").

    You acknowledge and agree that Nexthost shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Nexthost does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.

    Terms and Termination

    Nexthost may terminate this Agreement by written notice, including email, and without liability in the event of the termination of its agreement with a Supplier relevant to the provision of any service, or suspend or terminate the services of a customer in its absolute discretion and without notice:

    • If the customer commits a serious or repeated breach of the Agreement (and in particular any provision of the Acceptable Use Policy) or the customer engages in any conduct which in Nexthost’s opinion would have a negative impact on Nexthost, other customers, or our staff or is detrimental to the welfare, good order or character of Nexthost.
    • Any part of the customer’s Fees have not paid in full when due.
    • The information the customer supplied to Nexthost is found to be incorrect or false.
    • Nexthost reasonably thinks that the customer’s use of the services may result in the commission of a crime or is otherwise unlawful.

    Upon such suspension or termination, the customer:

    • May not resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Nexthost, its agents or any other persons for whom it may be liable in law.
    • Will not be eligible for compensation of any the fees paid in advance for the services, if applicable.
    • May be barred from subscribing to any services with Nexthost in the future.
    • May be listed with applicable authorities and credit bureaus.

    Nexthost may in its sole discretion determine the period of suspension it may deem necessary in consideration of the particular circumstances that gave rise to the suspension.

    Copyright Infringement Notice

    If you are a copyright owner or such owner’s agent and believe any material on our Services constitutes an infringement on your copyright, please contact us setting forth the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on his behalf; (b) identification of the material that is claimed to be infringing; (c) your contact information, including your address, telephone number, and an email; (d) a statement by you that you have a good faith belief that use of the material is not authorized by the copyright owners; and (e) a statement that the information in the notification is accurate, and, under penalty of perjury you are authorized to act on behalf of the owner.

    Indemnification

    You agree to indemnify and hold Nexthost and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, due to or arising out of your: (a) use of the Services offered by Nexthost; (b) violation of this Agreement or any law or regulation; or (c) violation of any right of a third party.

    No Warranties

    The Services, Client Area or any Service is provided to you "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, Nexthost, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, Client Area or any Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, Nexthost provides no warranty or undertaking, and makes no representation of any kind that the Services will meet your requirements, achieve any intended results, be compatible or work with any other software, systems or services, operate without interruption, meet any performance or reliability standards or be error-free or that any errors or defects can or will be corrected.

    Without limiting the foregoing, neither Nexthost nor any Nexthost's provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Services, or the information, content, and materials or Services included thereon; (ii) that the Services will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Services; or (iv) that the Services, its servers, the content, or e-mails sent from or on behalf of Nexthost are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

    Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.

    Limitation of Liability

    Notwithstanding any damages that you might incur, the entire liability of Nexthost and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by you for the Services.

    To the maximum extent permitted by applicable law, in no event shall Nexthost or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, for loss of data or other information, for business interruption, for personal injury, for loss of privacy arising out of or in any way related to the use of or inability to use the Services, third-party software and/or third-party hardware used with the Services, or otherwise in connection with any provision of this Agreement), even if Nexthost or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

    Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

    Severability

    If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

    This Agreement, together with the Privacy Policy and any other legal notices published by Nexthost on the Services, shall constitute the entire agreement between you and Nexthost concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Nexthost's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AND Nexthost AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

    Waiver

    Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute waiver of any subsequent breach.

    Failure to exercise, and no delay in exercising, on the part of either party, any right or any power under this Agreement shall operate as a waiver of that right or power. Nor shall any single or partial exercise of any right or power under this Agreement preclude further exercise of that or any other right granted herein. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

    Amendments to this Agreement

    Nexthost reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material we will provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

    By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use Nexthost.

    Entire Agreement

    The Agreement constitutes the entire agreement between you and Nexthost regarding your use of the Services and supersedes all prior and contemporaneous written or oral agreements between you and Nexthost.

    You may be subject to additional terms and conditions that apply when you use or purchase other Nexthost's services, which Nexthost will provide to you at the time of such use or purchase.

    Updates to Our Terms

    We may change our Service and policies, and we may need to make changes to these Terms so that they accurately reflect our Service and policies. Unless otherwise required by law, we will notify you (for example, through our Service) before we make changes to these Terms and give you an opportunity to review them before they go into effect. Then, if you continue to use the Service, you will be bound by the updated Terms. If you do not want to agree to these or any updated Terms, you can delete your account.

    Intellectual Property

    The Services and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Nexthost, its licensors or other providers of such material and are protected by ZA and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. The material may not be copied, modified, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of Nexthost, unless and except as is expressly provided in these Terms & Conditions. Any unauthorized use of the material is prohibited.

    Agreement to Arbitrate

    This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR Nexthost's INTELLECTUAL PROPERTY RIGHTS. The term "dispute" means any dispute, action, or other controversy between you and Nexthost concerning the Services or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law.

    Notice of Dispute

    In the event of a dispute, you or Nexthost must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to info@nexthost.co.za. Nexthost will send any Notice of Dispute to you by mail to your address if we have it, or otherwise to your email address. You and Nexthost will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Nexthost may commence arbitration.

    Binding Arbitration

    If you and Nexthost don’t resolve any Dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.

    Submissions and Privacy

    In the event that you submit or post any ideas, creative suggestions, designs, photographs, information, advertisements, data or proposals, including ideas for new or improved Services, services, features, technologies or promotions, you expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of Nexthost without any compensation or credit to you whatsoever. Nexthost and its affiliates shall have no obligations with respect to such submissions or posts and may use the ideas contained in such submissions or posts for any purposes in any medium in perpetuity, including, but not limited to, developing, manufacturing, and marketing Services and services using such ideas.

    Promotions

    Nexthost may, from time to time, include contests, promotions, sweepstakes, or other activities ("Promotions") that require you to submit material or information concerning yourself. Please note that all Promotions may be governed by separate rules that may contain certain eligibility requirements, such as restrictions as to age and geographic location. You are responsible to read all Promotions rules to determine whether or not you are eligible to participate. If you enter any Promotion, you agree to abide by and to comply with all Promotions Rules.

    Additional terms and conditions may apply to purchases of goods or services on or through the Services, which terms and conditions are made a part of this Agreement by this reference.

    Typographical Errors

    In the event a product and/or service is listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for the product and/or service listed at the incorrect price. We shall have the right to refuse or cancel any such order whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, we shall immediately issue a credit to your credit card account or another payment account in the amount of the charge.

    Miscellaneous

    If for any reason a court of competent jurisdiction finds any provision or portion of these Terms & Conditions to be unenforceable, the remainder of these Terms & Conditions will continue in full force and effect. Any waiver of any provision of these Terms & Conditions will be effective only if in writing and signed by an authorized representative of Nexthost. Nexthost will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. Nexthost operates and controls the Nexthost Service from its offices in ZA. The Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation. Accordingly, those persons who choose to access the Nexthost Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. These Terms & Conditions (which include and incorporate the Nexthost Privacy Policy) contains the entire understanding, and supersedes all prior understandings, between you and Nexthost concerning its subject matter, and cannot be changed or modified by you. The section headings used in this Agreement are for convenience only and will not be given any legal import.

    Disclaimer

    Nexthost is not responsible for any content, code or any other imprecision.

    Nexthost does not provide warranties or guarantees.

    In no event shall Nexthost be liable for any special, direct, indirect, consequential, or incidental damages or any damages whatsoever, whether in an action of contract, negligence or other tort, arising out of or in connection with the use of the Service or the contents of the Service. The Company reserves the right to make additions, deletions, or modifications to the contents on the Service at any time without prior notice.

    The Nexthost Service and its contents are provided "as is" and "as available" without any warranty or representations of any kind, whether express or implied. Nexthost is a distributor and not a publisher of the content supplied by third parties; as such, Nexthost exercises no editorial control over such content and makes no warranty or representation as to the accuracy, reliability or currency of any information, content, service or merchandise provided through or accessible via the Nexthost Service. Without limiting the foregoing, Nexthost specifically disclaims all warranties and representations in any content transmitted on or in connection with the Nexthost Service or on websites that may appear as links on the Nexthost Service, or in the Services provided as a part of, or otherwise in connection with, the Nexthost Service, including without limitation any warranties of merchantability, fitness for a particular purpose or non-infringement of third party rights. No oral advice or written information given by Nexthost or any of its affiliates, employees, officers, directors, agents, or the like will create a warranty. Price and availability information is subject to change without notice. Without limiting the foregoing, Nexthost does not warrant that the Nexthost Service will be uninterrupted, uncorrupted, timely, or error-free.