Terms of Service

01 Parties

1.1. "Trinico Cloud" (also referred to as "Trinico", "we", "us" or "our") is Trinico CC, a close corporation registered in the Republic of South Africa in terms of the Close Corporations Act 69 of 1984, trading as Trinico Cloud at the website www.trinico.cloud.

1.2. "The Customer" or "You" is the party described as such on any Service Order executed between you and Trinico Cloud, with contact details as entered on the Service Order.

02 Definitions

2.1. The terms listed below will have the following meanings in this Agreement:

2.2. Acceptable Use Policy / AUP

The document with that heading available on the Trinico Website, as amended from time to time.

2.3. Agreement

These Standard Terms, plus the relevant Service Order(s), Service Terms and any schedules or annexures relating to them.

2.4. Affiliate

In relation to a Party, the Party's holding company, its subsidiaries, the subsidiaries of its holding company and any other companies which, directly or indirectly, is controlled by the Party, controls the Party or is under common control with the Party.

2.5. Business Day

Any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.

2.6. Business Hour

A period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.

2.7. Charges

The rates payable by the Customer for the Services as set out in the Charges Schedule.

2.8. Customer

Defined in section 1.2.

2.9. Customer Data

Information collected for the purpose of identifying customers as well as photographs, websites, videos, data and e-mail messages transmitted via the Trinico System.

2.10. Customer Equipment

Any equipment owned by the Customer, including without limitation servers, peripherals, routers, switches, Software, Databases, data cables, hard drives and uninterruptible power supplies.

2.11. Customer System

The Customer Equipment and Software operated together by the Customer as a system.

2.12. Customer Support Ticket Area

The online account administration facility provided to Customers at the Trinico Website.

2.13. CPA

The Consumer Protection Act, 68 of 2008.

2.14. Data

Electronic representations of information in any form.

2.15. Database

A collection of related data including, but not limited to, text, images, sound and video, integrated using a method of connecting and displaying the data into a collection of interrelated independent files stored together.

2.16. Trinico Equipment

Any equipment supplied to the Customer by Trinico under this Agreement but which the Customer does not own, or any equipment possessed by Trinico.

2.17. Trinico Premises

Any premises where equipment used by Trinico to provide the Services is located, and which is not owned or occupied by the Customer, including data centres in South Africa and elsewhere.

2.18. Trinico System

Equipment operated together as a system by Trinico to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.

2.19. Trinico Website

The Internet website published at www.trinico.cloud or another URL that Trinico notifies the Customer of from time to time.

2.20. Domain

An Internet subdomain registered with an authorised registrar appropriate to its top-level domain ("TLD"), comprising its constituent domain name server records including host names, aliases and mail exchange ("MX") records.

2.21. Emergency Maintenance

Maintenance to the Trinico System intended to remedy existing or imminent circumstances likely to cause danger to persons or property, an interruption to the Services, or substantial loss to Trinico, the Customer or any third party.

2.22. Fees

The fees and / or charges due to Trinico by the Customer in respect of Goods or Services provided by Trinico under this Agreement.

2.23. Goods

Any and all goods to be provided by Trinico to the Customer under this Agreement, including equipment, hardware and third-party software.

2.24. Good Industry Practice

The exercise of skill, diligence, prudence and foresight reasonably expected from a skilled and experienced service provider providing similar services, acting in good faith to comply with contractual obligations, applicable laws, codes of professional conduct, relevant codes of practice and standards.

2.25. Hosting Service

The type of hosting service selected by the Customer, either Website Hosting or Cloud Server Hosting as described in the Schedule and the Service Order.

2.26. Intellectual Property Rights

Patents, registered designs, trademarks (whether registered or otherwise), copyright, trade-secret rights, database rights, design rights, service marks and other intellectual-property rights and rights to claim something as confidential information.

2.27. Malicious Code

Anything that contains computer software routine or code intended to: (2.27.1) allow unauthorised access or use of a computer system by any party, or (2.27.2) disable, damage, erase, disrupt or impair the normal operation of a computer system, (2.27.3) including any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.

2.28. Party / Parties

Either of Trinico or the Customer, and "Parties" both of them collectively, including their successors and anyone to whom their rights have been assigned (if permitted).

2.29. Personnel

Any director, member, employee, agent, consultant, contractor or other representative of a Party.

2.30. Personal Information

Has the meaning set out in POPIA.

2.31. POPIA

The Protection of Personal Information Act 4 of 2013, as amended (also commonly referred to as "POPI").

2.32. Privacy Policy

The document with that heading available on the Trinico Website, as amended from time to time.

2.33. Provider

Trinico or Trinico Internet Services.

2.34. RICA

The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002.

2.35. Service

A service provided by Trinico to the Customer under this Agreement.

2.36. Service Level Availability

A Service Schedule with that heading defining levels of service to be met by Trinico under the Agreement.

2.37. SLA Ticket

The reporting of a service outage or complaint regarding a Service or the Service Level Availability, via the service provider's online portal.

2.38. Service Order / Order

A goods, license, services and / or work order agreed to in writing or by subscription on website (which includes reference to email or via the Trinico Website) by both Parties under this Agreement and the relevant Service Terms, listing the specific Goods or Services to be provided.

2.39. Service Terms

A schedule describing the terms on which Trinico will provide a particular Good or Service, as amended from time to time, read with the General terms (Hosting, Domains, Connectivity, AUP).

2.40. Standard Terms / Trinico Standard Terms

This document.

2.41. Software

Any computer programme (whether source- or object-code), database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation, or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.

2.42. Supplier

A supplier of goods and / or services to Trinico.

2.43. Time and Materials Rate

Trinico's standard time and materials fees and charges applicable from time to time, including all expenses reasonably and actually incurred by Trinico (travel, accommodation and subsistence).

03 How the Agreement Works

3.1. The Goods and Services that Trinico will provide to the Customer will be described in Service Orders and specific Service Term(s) schedules.

3.2. These Standard Terms apply to all Service Orders.

3.3. More details of particular Goods or Services may be contained in Service Term(s) Schedules.

3.4. The Service Order(s), Service Terms, and this document together form the Agreement between Trinico and the Customer. If the Parties enter into a Service Level Availability or agree to an annexure to any of these documents, these will also form part of the Agreement.

3.5. If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: Standard Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Availability, unless otherwise expressly stated in writing.

3.6. The meanings of any capitalised words in this document are found under the Definitions section above.

04 Service Orders / Orders

4.1. Trinico will provide the Services to the Customer as described in Service Orders in terms of the Agreement.

4.2. A Service Order may be signed in hard copy (in counterparts or not), entered into via the Trinico Website, per email or by another method if confirmed by Trinico.

4.3. Each Service Order (read with the other documents mentioned above) will be a separate contract between the Customer and Trinico (unless the Service Order is amended or renewed by another Service Order).

4.4. The terms of one Service Order will not apply to another, unless a Service Order amends or renews an existing Service Order or adds Goods or Services to an existing Service Order.

05 Term of Agreement and Renewal

5.1. The Agreement will be in force from the date on which the Customer signs or indicates acceptance of a Service Order in some other way, and will continue in force for the period stated on the Service Order, where after it will automatically renew for further periods equal to the initial period until terminated as described in clause 5.3. If the Service Order does not specify a time period, the Agreement will operate on a month-to-month basis.

5.2. Where the commencement of a Service is delayed, the termination date of the Agreement will be calculated from the date that the Service commenced.

5.3. Unless otherwise stated in the Service Order, either Party may terminate the Agreement and / or Service(s) on providing one calendar month's notice in writing to the other party. This notice period will be a full calendar month starting on the first day of the following month. Cancellations by the Customer must be confirmed by Trinico to have effect.

06 Amendment of Terms

6.1. Trinico may amend the Standard Terms and Service Terms at any time. The amended versions will be posted on the Trinico Website, and Trinico will as soon as possible after posting the amendments make reasonable efforts to advise the Customer of them by email and via the Customer Support Ticket Area.

6.2. Trinico must give at least 14 days, or immediate notice under extreme conditions, written notice of the amendments.

6.2.1. In the case of a fixed-term Agreement (which includes services renewed monthly), the amendments will become effective at the end of the then-current contractual period.

6.2.2. In the case of an indefinite period, the amendments will become effective at the beginning of the first calendar month after the notice period has expired, and the Customer may terminate the Agreement before the end of the notice period if it objects to the amendments. The termination will take effect at the end of the notice period.

6.3. If Trinico increases its Fees, notice of the change must take place as described in clause 6.2.

07 Initiation

7.2. If the Customer is a juristic person, Trinico may require one or more of its officers to stand surety for the Customer's obligations under this Agreement. Even if the Agreement has commenced, Trinico may withhold providing the Services until the surety has been signed.

7.3. Depending upon the Service provided to the Customer, Trinico may be obliged under RICA to obtain certain information from the Customer, and Trinico may withhold or suspend provision of Services until the Customer has provided the necessary information to Trinico.

7.4. If the Customer has not complied with a requirement of this clause 7, Trinico may delay providing the Services until the Customer has complied. If the Customer does not comply within a reasonable period, Trinico may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result.

08 Fees and Payment

8.1. The Customer will be liable for and will pay the Fees in respect of Services supplied in terms of this Agreement on the basis set out in the Service Orders, without deduction or set-off.

8.2. Trinico may at its sole instance require the Customer to make payment by way of debit order.

8.3. Unless otherwise agreed:

8.3.1. Billing will commence on the date that Service provision commences.

8.3.2. Partial months (if applicable) will be charged pro rata, and this Fee may be included in the following month's charge for convenience' sake.

8.3.3. All other invoices must be paid by the Customer within ten (10) calendar days of the date of Trinico's invoice.

8.3.4. Pre-paid Fees must be paid by the 7th day of the relevant month.

8.3.5. All Fees and other amounts payable are quoted inclusive of VAT.

8.3.6. All transactions are processed in South African Rands (ZAR) unless otherwise agreed upon in writing from the Accounts department or Management.

8.3.7. Should the Customer elect to pay via Cash or Cheque payments, services shall only be activated once proof of payment has been received and amounts cleared by the bank. The Provider is not responsible for domains being lost, or taken by a third party, during the transition period between registration and the receipt & clearing of payment.

8.3.8. All cash / ATM and / or Teller deposits will be subject to bank fees as set out by the bank.

8.4. Interest will be charged on any amount that remains unpaid by the Customer beyond the due date of payment:

8.4.1. The interest rate will be 2% (two percent) above the prime overdraft rate (per annum), up to a maximum of 2% per month.

8.4.2. The prime overdraft rate will be as charged by Trinico's bankers at the time, evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.

8.4.3. The interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest.

8.5. Trinico may at its sole discretion suspend the provision of Services in respect of which any amount is outstanding:

8.5.1. Immediately where a debit order fails due to incorrect information or insufficient funds (with a delay in reconnection of up to 72 hours in the case of multiple bounces), or

8.5.2. On 5 (five) Business Days written notice to the Customer in any other case,

8.5.3. Unless the amount is the subject of a legitimate billing complaint by the Customer. Such suspension will not relieve the duty upon the Customer to make payment of subsequent Fees for that service or any other amounts due to Trinico.

8.6. Reconnection of any Service suspended in terms of clause 8.5 will be subject to a reasonable reconnection fee published on the Trinico Website from time to time.

8.7. Termination of any annual or bi-annual account before its pre-paid term ends will be subject to a reasonable administration fee published on the Trinico Website from time to time.

8.8. Should any amount be outstanding by more than 60 Business Days, Trinico may refer the matter to a debt-collection agency or attorney for collection. Should it do so, the Customer will be liable for a reasonable administration fee, plus any legal costs arising from collection of the debt.

8.9. If a particular Service is provided by calendar month, and the commencement date for that Service is not the beginning of a calendar month, the Fee for that first month will be reduced proportionately.

8.10. Trinico may increase or decrease the Fee for any Service from time to time, and this will be done in the same way as an amendment of this Agreement (see clause 6).

8.11. The Customer will reimburse all reasonable expenses necessarily and actually incurred by Trinico and its Personnel in fulfilling Trinico's obligations under this Agreement, including travelling, subsistence, goods and services purchased on the Customer's behalf, communications, stationery, reports and presentation material. Travelling and subsistence expenses will be agreed between the parties from time to time.

8.12. The Parties agree that, in the event of any dispute regarding monies owing to Trinico that have not been paid by due date, Trinico:

8.12.1. May retain any Customer Equipment which is in its possession in pursuance of any Service Order as security for payment of any disputed amount, and

8.12.2. Will be entitled, but not obliged, to dispose of such Customer Equipment in order to recover any amounts so owing should such amounts have been outstanding for a period of more than 60 (sixty) days from due date.

8.13. If a Customer has been given a discount as a result of referring a third party to Trinico, the discount will be forfeited if the referee terminates its agreement with Trinico within three (3) months of commencement.

8.14. If a Customer does not settle an outstanding invoice within 7 days of the invoice due date, the services relating to the overdue invoice will be terminated. A reasonable re-activation fee will be levied should you require any services to be re-instated after termination, as published in our Fees Schedule on the Trinico Cloud Website.

09 Use of Services

9.3. The Customer must make use of the Services in a considerate and lawful way, and Trinico has developed an Acceptable Use Policy that contains reasonable rules of conduct for the use of the Service. The Acceptable Use Policy, as amended, is available for viewing on the Trinico Website.

9.4.1. The content on your website must be linked from an HTML or similarly coded web page with all content freely available to the public. Your website must consist of web pages of a standard design, essentially HTML based text and graphics. Your hosting account should consist mostly of html and php files.

9.4.2. The number of inodes employed by one hosting account on shared servers must not exceed the following limits:

Shared servers only allow 100 000 inodes per hosting account. This is a "soft limit," and when this limit is reached you will still be able to upload files. However, once the account passes the 100 000 inode threshold it will no longer be included in our weekly backups. If the account exceeds 250 000 inodes then it will be in violation of our Acceptable Use Policy and may be flagged for review and / or suspension.

Inode violations can include:

• Creation and deletion of large numbers of files on a regular basis.
• Causing file system damage.
• Exceeding 250 000 inodes.

9.4.3. Downloadable files, media and databases must comply with the following limitations:

• A maximum of 10 GB of a shared hosting account can be allocated to music, video or other multimedia files including but not limited to .aac, .avi, .mp3, .mp4, .mpeg, .jpg, .png, .gif files.
• A maximum of 10 GB of a shared hosting account can be allocated to any archive and disk image files containing the complete contents and structure of a data storage medium including .zip, .tar, .gzip, .gz, .tar.gz, .rar files.
• A maximum of 10 GB of a shared hosting account can be allocated to databases and database dumps including .sql files.
• A maximum of 10 GB of a shared hosting account can be allocated to executable files and all other files which are the result of compiling a program.
• Any user whose account / server employs the higher burstable resources on a consistent basis shall agree to upgrade it to a package with higher resource availability.
• Under its sole discretion, Trinico reserves the right to determine any kind of unfair or inappropriate usage of any content which may result in immediate account suspension or upgrade to a package with higher resource availability. The decision to upgrade shall rest solely with Trinico and shall be made in its reasonable discretion.
• Backup Limitations. Trinico's AutoBackup tool will only backup accounts with a 20 GB backup storage limit; the backup will not be created until you remove other files. Any Shared Hosting account that uses more than 20 GB of disk space or contains more than 100 000 inodes will be removed from our weekly system backup. Any user whose hosting account is using more than 20 GB of disk space or contains more than 100 000 inodes is solely responsible for maintaining the copy of his / her account.
• Softaculous backups are stored for 28 days. Once this period is over, the backup will be removed from the server and no copy will exist. Additionally, when using the backup rotation option, you are allowed to set 10 copies maximum per script you have installed using Softaculous; the eleventh copy will replace the earliest backup file.

9.4.4. You should use email and other related services in full compliance with these terms. In order to safeguard overall server performance, you may send and / or forward not more than the following number of emails per hour per domain:

• For Shared Hosting accounts, email storage shall not exceed the 10 GB limit.
• For IMAP / POP3 mailboxes, you may perform up to 100 email checks per hour.
• For POP3, you may perform up to 10 concurrent connections per IP address on Shared and Reseller servers, and up to 20 concurrent connections per IP address on Business and Email servers.
• For IMAP, you may perform up to 30 concurrent connections per IP address on Shared, Reseller, Business and Email servers.
• For SMTP, you may perform up to 100 concurrent connections on Shared, Reseller, Business and Email servers. This limit applies to the whole server.
• Trinico may, at its sole discretion, limit the volume of email messages you can deliver through our services. Trinico may limit email volume by queuing your email messages internally, or by temporarily rejecting requests to send email through our services. Trinico may block any message you attempt to submit using our services for any reason, with or without notifying you. Under no circumstances will Trinico be liable to you or any other party for any indirect, special, economic or consequential damages (including without limitation lost profits) arising out of email blocking or queuing.

9.5. Network security threats evolve quickly and behaviours change as technology changes. As a result, Trinico must be able to amend the Acceptable Use Policy at any time, and reserves the right to do so. The Customer has a general duty to act in a considerate and lawful way; an amendment to the Acceptable Use Policy does not constitute an amendment of this Agreement.

9.6. Trinico may use upstream Suppliers in providing certain Services, which may maintain their own acceptable use policies. Trinico will inform the Customer if this is the case. The Customer agrees to abide by these policies in using the relevant Services. Trinico may treat a breach of a Supplier's acceptable use policy as if it were a breach of Trinico's Acceptable Use Policy.

10 Email Accounts

If email accounts are made available to the Customer, they will be provided on the following terms:

10.1. Trinico may filter incoming email for unsolicited bulk email (Spam), Virus and Malicious Code. This filtering will be done on a best-effort basis without any warranty of any kind.

10.2. The servers used to provide an email Service will be subject to the same level of security as the rest of the Trinico System.

10.3. The Customer may send bulk email, but may not send unsolicited bulk email, as described in the Acceptable Use Policy.

10.4. Trinico will be entitled to take whatever steps it deems necessary to prevent the sending of unsolicited bulk email using the Trinico System.

10.5. Trinico will be entitled to take whatever steps it deems necessary to prevent an IP address allocated to Trinico from being blocked as a result of the transmission of bulk unsolicited email, and may amongst other measures:

10.5.1. Suspend the Customer's email account, and

10.5.2. Suspend access to a domain name hosted on the Trinico System.

10.6. If Trinico incurs costs in unblocking any of its IP addresses as a result of a Customer sending bulk unsolicited email using the Trinico System, the Customer will be liable for those costs, including time and materials at Trinico's standard rates.

10.7. If email accounts are held on Trinico's servers:

10.7.1. Trinico may delete emails received or sent more than 90 days before a given date.

10.7.2. If the mailbox size specified in the relevant Service Order is exceeded, no further emails will be received into the Customer's account.

10.7.3. No emails larger than 20 MB will be sent or received.

10.7.4. Upon termination of the Service all email will be deleted and email addresses associated with the Customer's account will cease to function.

10.7.5. Trinico has no responsibility for backing up email stored on its servers.

10.7.6. "Webmail" is provided as a complimentary service and Trinico gives no warranty that it will be accessible by the Customer at any given time.

10.7.7. Individual mail sent to the Customer's POP3 / IMAP box or forwarded to the Customer's existing email address may be limited to 5 MB in size each.

10.7.8. Trinico reserves the right to refuse domain and hosting services based on network, domain and / or equipment identifiers and at our sole discretion.

11 Intellectual Property

11.1. Nothing in this Agreement will be interpreted as granting either Trinico or the Customer a license to deal in any way with any Intellectual Property owned by the other, nor will anything be construed as an assignment of Intellectual Property to the other, unless otherwise agreed in writing.

11.2. If Trinico provides the Customer with Software as part of providing a Service, and it holds Intellectual Property rights to the Software, it grants the Customer a non-exclusive, non-transferable licence to use that Software:

11.2.1. Only for the Customer's own purposes;

11.2.2. For making use of the Services; and

11.2.3. For the duration of this Agreement and subject to its terms.

11.3. If Trinico provides the Customer with Software owned by a third party, the Customer must comply with all license terms imposed by the third party when it uses the Software. These terms include any terms appended to a Service Order.

11.4. Copyright in any Software or other works created by Trinico in terms of this Agreement will vest in Trinico.

11.5. The Customer is specifically prohibited from reverse engineering, disassembling, decompiling or using any method to discover the source code of any Software provided in terms of this Agreement (or attempting to do so), where the Intellectual Property is not owned by the Customer.

11.6. The Customer undertakes to comply with all intellectual-property laws, and to do nothing related to or connected with this Agreement or its use of the Trinico System which may infringe the Intellectual Property rights of Trinico or any third party.

11.8. Trinico will have the right to make copies of the Customer Data if this is necessary to provide a Service.

11.9. While providing the Services, Trinico may have one or more Internet Protocol ("IP") addresses allocated to the Customer.

11.10. The Customer must put the assigned IPs to the use specified or implied in the Service Order, and will not put them to another use without the express written consent of Trinico.

11.11. The Customer acknowledges that IP addresses are not property and cannot be owned. As a result the Customer has no right or expectation of a right to ownership of any IP address assigned to it.

11.12. On termination of this Agreement or the relevant Service Order, any IP Addresses assigned to the Customer may be removed from the Customer, and the Customer will have no recourse against Trinico or any third party as a result of any loss sustained as a result.

12 Security

12.1. Trinico will implement measures in line with Good Industry Practice and its Acceptable Use Policy to ensure the security of the Trinico System and the physical security of the Trinico Premises and / or Data Centres, but gives no warranty that breaches of security will not take place.

12.2. If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify Trinico.

12.3. If the Customer suffers damage as a result of loss or corruption of Customer Data through a security violation or breach of the Acceptable Use Policy, the Customer will be liable for the damage if the violation was the Customer's fault.

12.4. The Customer must not do anything that may prejudice the security of the Trinico System, and must take all reasonable measures necessary to ensure that:

12.4.1. No unlawful access is gained to the Trinico Premises, the Trinico System, or the Customer System.

12.4.2. No Malicious Code is introduced into the Trinico System.

12.4.3. The Customer Data is safeguarded.

12.4.4. Any IP address range assigned to the Customer cannot be attacked by third parties.

12.4.5. All use of the Services occurs in compliance with the Acceptable Use Policy.

12.5. If a security violation occurs, or Trinico is of the view that a security violation is imminent, Trinico may take whatever steps it considers necessary to maintain the proper functioning of the Trinico System including, without limitation:

12.5.1. Changing the Customer's access codes and passwords (or those of any user of the Trinico System).

12.5.2. Preventing access to the Customer System.

12.5.3. Preventing access to the Trinico System.

12.6. Trinico takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.

12.7. The Customer must give its full cooperation to Trinico in any investigation that may be carried out by Trinico regarding a security violation. If it is found that the Customer has violated the Acceptable Use Policy, the Customer shall pay Investigation fees to recover the costs per hour that the Provider's personnel must spend to investigate any violations as set out in the Fee Schedule.

12.8. If the Customer is providing any service to third parties that makes use of the Trinico System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 12.

13 Suspension of Service

13.1. Trinico is entitled to suspend provision of the Service(s) to the Customer where:

13.1.1. The Customer is found to be in breach of the Acceptable Use Policy.

13.1.2. The Customer has not made payment of monies owing to Trinico Cloud by due date, subject to clause 8.5.

13.1.3. Such suspension is necessary to maintain security as set out in clause 12.

13.1.4. Trinico or its contractors need to carry out Emergency Maintenance.

13.1.5. The Customer has failed to co-operate in an investigation as set out in clause 12.7 or otherwise has breached its duties set out in clause 12 such that its continued access to the Service Provider System constitutes a threat to security.

13.1.6. Where so ordered by a court having jurisdiction over Service Provider.

13.2. Trinico is entitled to suspend Service as set out in clause 13.1 immediately and without notice. In the case of grounds set out in clauses 13.1.1 to 13.1.3, Trinico must provide the Customer with at least seven (7) days' notice of such suspension, unless the circumstances are such that immediate suspension is necessary to avoid loss to Trinico, the Customer or any third party.

13.3. Should the Customer's account be suspended for non-payment, the Provider reserves the right to place a non-payment page on the Customer's domain.

13.4. The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.

13.5. Reconnection of any Service suspended in terms of clauses 13.1.1 to 13.1.6 will be subject to a reasonable reconnection Fee.

14 Data & Content

14.2. The Customer must not upload to, store on or transmit any data or content via the Trinico System that is unlawful, harmful, or in breach of the Acceptable Use Policy.

14.4. Trinico has no knowledge of or interest in data that the Customer may transmit via, store on or access from the Trinico System. Trinico also has no duty to monitor any content made available or published through the Trinico System, unless required under clause 15 (Statutory Compliance).

15 Statutory Compliance

15.1. Trinico Cloud is obliged to comply with certain statutory provisions including, but not limited to, those set out in the following Acts (each as amended from time to time, together with their associated regulations):

• The Films and Publications Act 65 of 1996, as amended (including by the Films and Publications Amendment Act 11 of 2019);
• The Electronic Communications and Transactions Act 25 of 2002 ("ECTA");
• The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 ("RICA");
• The Electronic Communications Act 36 of 2005;
• The Protection of Personal Information Act 4 of 2013 ("POPIA");
• The Cybercrimes Act 19 of 2020.

15.2. Trinico Cloud's compliance with these statutory provisions may require measures that would otherwise be infringements of the Customer's privacy, such as the lawful interception of the Customer's communications or the examination of Customer Data. No action will lie against Trinico Cloud for any damages that it may suffer as a result of these measures, save where Trinico Cloud has acted unlawfully or in bad faith.

16 Loss of License

16.1. If Trinico cannot continue with provision of any Service because any license, permit, certificate, consent, exemption or other necessary legal requirement is withdrawn, Trinico must make best endeavours to provide an alternative service to the Customer within 10 (ten) Business Days. It may do this either by utilising another of its own services, or by having a Supplier or third party provide the Service in its place.

16.2. If the Customer is not satisfied with the steps taken by Trinico in clause 16.1, Trinico must cease provision of the Service in question and reduce the Fee accordingly.

16.3. If Trinico cannot provide the other Services provided under this Agreement because they depend upon a Service that has been terminated in terms of clause 16.2, the Customer may terminate this Agreement.

16.4. Trinico must provide the Customer with timely notice of the circumstances described in clause 16, if reasonably possible.

17 Risk and Ownership in Equipment

17.1. Ownership. Ownership of all Equipment is retained by Trinico (or the supplier of the Equipment as the case may be) and nothing in this Agreement must be interpreted as creating any expectation with regard to the transfer of ownership to the Customer.

17.2. Purchase of Equipment. The Customer may purchase Equipment only by agreeing to do so in writing in a Service Order or by way of a separate agreement, in which case ownership in the Equipment will pass to the Customer only once payment has been made for it in full.

17.3. Delivery. Delivery of Equipment, if any, will take place when Trinico passes possession of the Equipment to the Customer, its Freight Forwarder, or a third party nominated by the Customer, or when Trinico delivers it to any location indicated in writing by the Customer where the Equipment is not under the control of Trinico.

17.5. Delivery to 3rd Parties. If the Customer requires that the Equipment set out in a Purchase Order be delivered directly to a Customer or third party as the case may be, the Customer must procure the services of an appropriate Freight Forwarder for the purpose, and risk of loss or damage to the Equipment will pass to the Customer upon Trinico's delivery of such Equipment to the nominated Freight Forwarder.

18 Use and Maintenance of Equipment

18.1. Only Applicable if Customer not the Owner. This clause 18 applies only where Customer is not the owner of the Equipment but risk has passed to the Customer as described in clause 17.4, for example where Trinico has leased the Equipment to the Customer, or the Customer is paying for the Equipment in instalments.

18.2. Customer's Duties. The Customer must:

18.2.1. Ensure that the Equipment remains in a safe environment that is conducive to its continued operation.

18.2.2. Ensure that the Equipment is used with care and that reasonable precautions are taken to avoid accidents and to safeguard it from loss or damage and excessive wear and tear.

18.2.3. Notify Trinico immediately of any loss of, or damage to, the Equipment or part thereof or any failure of the Equipment to function.

18.2.4. Ensure that no part or component for the Equipment is used which has not been supplied by Trinico or its authorised subcontractors.

18.2.5. Ensure that the Equipment is insured at a reasonable value against any damage or loss.

18.2.6. Not rent, sell, mortgage or otherwise encumber the Equipment without the prior written consent of Trinico.

18.2.7. Provide Trinico with all such information as it may reasonably require to protect its right of ownership in the Equipment.

18.2.8. Ensure that the Equipment does not leave the Customer's possession, and no person other than its Personnel is permitted to use the Equipment without Trinico's prior written consent.

18.2.9. Provide reasonable access to the Equipment by Trinico or its agents (upon request) for maintenance and / or repairs.

18.2.10. Reimburse Trinico for any repairs and / or maintenance needed to the Equipment at the Time and Materials Rate, provided that the Customer authorises the cost of such repairs and / or maintenance prior to implementation.

18.3. Third Party Premises. Where Equipment is installed or stored on or at a premises which is leased from a third party or otherwise not owned by the Customer, the Customer undertakes to:

18.3.1. Obtain all such consents and permissions as may be necessary so as to allow the installation and maintenance of the Equipment.

18.3.2. In the case of a dispute with the landlord or owner of the premises, inform the landlord or owner of the premises in writing of the fact that the Equipment is the property of Trinico and does not belong to the Customer. The Customer specifically indemnifies and holds harmless Trinico in respect of any breach of this clause.

18.4. Maintenance of Equipment. Under no circumstances is the Customer permitted to authorise or carry out technical maintenance on any Equipment without the prior written permission of Trinico. Any modification or re-configuration carried out or attempted by the Customer or any third party authorised to do so by the Customer without the express prior written approval of Trinico is strictly prohibited and Trinico specifically reserves its right to claim damages should this clause be breached.

19 Limitation of Liability

19.5. If the CPA is applicable to this Agreement, and any provision of this clause 19 is found by a court or tribunal with jurisdiction over Trinico to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 19 will have full force and effect.

19.6. In the case of ambiguity, this clause 19 will take precedence over any expression of the Parties' intention, whether express or implied, that may be contained elsewhere in this Agreement.

20 Indemnity

20.3. If the CPA is applicable to this Agreement, and any provision of this clause 20 is found by a court or tribunal with jurisdiction over Trinico to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 20 will have full force and effect.

21 Warranties

21.1. Trinico warrants that:

21.1.1. It has the facilities, infrastructure, capacity and capability to provide the Services;

21.1.2. It will employ a sufficient number of suitably trained staff to provide the Services;

21.1.3. It will provide the Services with promptness and diligence and in a workmanlike manner and in accordance with the practices and professional standards of well-managed companies performing services similar to the Services; and in accordance with all applicable laws and regulations.

21.2. Equipment is guaranteed under the manufacturer's product-specific warranties only, and all other guarantees and warranties including common-law guarantees and warranties in relation to Equipment are hereby specifically excluded by Trinico.

21.3. Unless expressly set out in this clause and elsewhere in this Agreement or in any Service Level Availability and to the maximum extent permitted by law, Trinico does not make any representations nor does it give any warranties or guarantees of any nature whatsoever in respect of the Trinico Equipment or Services, which are provided on a "reasonable effort" basis, and all warranties which are implied or residual at common law are hereby expressly excluded.

21.4. For the avoidance of doubt, Trinico does not warrant any of the following:

21.4.1. Connection quality (including throughput, availability, jitter, latency and packet loss);

21.4.2. The confidentiality, integrity and / or availability of any Customer Data;

21.4.3. The correctness of the identification of any email as spam; or

21.4.4. The success of any backup or disaster-recovery service offered.

21.5. If the CPA applies to this Agreement, the provisions of this Agreement or of this clause 21 will not be interpreted in such a way as to exclude the Customer's rights under sections 54 (Right to quality service), 55 (Right to safe, good quality goods), or 56 (Implied warranty of quality) of the CPA. These sections however apply only to the minimum possible extent. Unless the contrary is stated elsewhere in this Agreement, the Customer will have no rights in respect of quality of service, safe & good quality goods or implied warranty of quality beyond those explicitly stated in the those sections.

22 Assignment, Subcontracting and Reselling

22.1. Neither Party will be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.

22.2. Trinico may sub-contract its obligations in terms of this Agreement to a third party, provided that:

22.2.1. Such sub-contracting will not absolve Trinico from responsibility for the provision of the Service or complying with its obligations in terms of this Agreement; and

22.2.2. Trinico will at all times remain the sole point of contact for the Customer.

22.3. The Customer may not resell any Service, or otherwise provide any Service to a third party for consideration, unless otherwise specified in a Service Order.

23 Relationship between the Parties

23.1. The Parties agree that the relationship between them is one of commissioner and independent contractor, and nothing in this Agreement will be construed as giving rise to a relationship of employer and employee, whether between Customer and Trinico or between Customer and any officer, employee or agent of Trinico.

23.2. This Agreement does not give rise to a relationship of principal and agent. Neither Party will be entitled to conclude any agreement on behalf of the other, nor to sign any document on behalf of the other, unless this is specifically authorised in writing by the other.

23.3. Trinico Cloud's right to terminate this Agreement will be regulated by the law of contract alone and neither Trinico Cloud nor its employees, officers or agents is "an employee" of the Customer as defined in section 213 of the Labour Relations Act 66 of 1995, section 1 of the Basic Conditions of Employment Act 75 of 1997, or any similar statute.

23.4. The relationship between the Parties will not be an exclusive one and both Parties will be free to enter into agreements similar to this one with third parties.

23.5. Both Parties to this Agreement (including the employees, officers and agents of the Parties) undertake to use their best endeavours and exercise good faith in implementing the provisions of this Agreement according to its intent and purpose, and they further undertake to pass such resolutions and do all such acts and deeds as may be necessary, to this end.

23.6. In order to facilitate the effective provision of the Services, the Customer will:

23.6.1. Allow Trinico reasonable access to its premises in order for Trinico to provide the Services, and the Customer will procure that its employees, officers and agents co-operate with and give Trinico any necessary assistance in the provision of the Services;

23.6.2. Comply with any reasonable instructions given by Trinico relating to the provision of the Services, as well as Trinico's relevant policies and procedures, which will be made available to the Customer on request;

23.6.3. Enter into any agreement with a supplier necessary to allow Trinico to provide the Services; and

23.6.4. Respond to any request for information, access or authorisation as soon as reasonably possible, having regard to the circumstances of the request, and Trinico may suspend or withhold provision of the Services should the Customer fail to comply with the above.

24 No Solicitation

24.1. Both Parties undertake that they will not employ any employee of the other, or any person who was an employee of the other during the previous 12 (twelve) months. This restriction applies during the term of this Agreement and for a period of 6 (six) months after its termination for any reason. "Employ" includes persuading, encouraging or procuring the employee to be employed by or through the guilty Party or any of its subsidiaries, and by doing so directly or indirectly. The restriction also applies to inducing an employee to terminate his or her employment.

24.2. The provisions of clause 24 do not prohibit either of the Parties from considering any application for employment submitted on an unsolicited basis or in response to a general advertisement of employment opportunities.

25 Application of the Consumer Protection Act

25.1. If the Customer is a juristic person then the CPA applies to this Agreement only if both the Customer's asset value and annual turnover (the "Business Values") are less than R 2 000 000 (two million Rand) (the "Threshold Value") on the date the applicable Service Order is executed. Both the Business Values and the Threshold Value may be amended in terms of the CPA.

25.2. Trinico's duties under this Agreement may vary depending upon whether the CPA applies to this Agreement, and Trinico will act upon the information given by the Customer in this regard. Consequently:

25.2.1. The Customer warrants that any statement made to Trinico in respect of its Business Values is accurate.

25.2.2. If the Customer claims that all the Business Values are below the Threshold Value, or otherwise that the CPA applies to this Agreement, Trinico may at its instance require the Customer to provide it with financial statements as proof thereof.

25.2.3. If the Customer misstates the Business Values (whether negligently or otherwise) in such a way that Trinico believes that this Agreement is subject to the CPA when it is not, then Trinico may retroactively apply any provisions of this Agreement that were not applied as a result of this belief.

25.2.4. The Customer will be liable for any costs or damage sustained by Trinico resulting from such misstatement.

25.3. If the CPA is applicable to this Agreement, the provisions of the CPA will be applied and take precedence where they contradict any provision of this Agreement.

26 Breach and Termination

26.1. If either Party:

26.1.1. Fails to comply with any of its obligations or commits a breach of this Agreement and fails to remedy the default or breach within 5 (five) Business Days after having received a written notice to do so;

26.1.2. Resolves to begin business-rescue proceedings as contemplated in Chapter 6 of the Companies Act 71 of 2008;

26.1.3. Is placed in provisional or final liquidation or sequestration, or judicial management;

26.1.4. Enters into any compromise arrangements with its creditors;

26.1.5. Fails to satisfy a judgment taken against it within ten (10) Business Days; or

26.1.6. Falls under the controlling interest or ownership of a competitor of the other Party (for the purpose of this clause, the Party which makes this allegation will carry the burden to prove it),
then the other Party will be entitled either to hold the Party in breach to the Agreement, or to cancel the Agreement.

26.1.7. The provisions of this clause will not affect the rights of either Party to claim damages in respect of a breach of any of the provisions of this Agreement.

27 Notices

27.1. The Parties choose their addresses where they will accept service of any notices / documents for all purposes arising from this Agreement (domicilium citandi et executandi):

27.1.1. In the case of Trinico, as set out in clause 1.1 of this document; and

27.1.2. In the case of the Customer, the addresses set out in the most recent Service Order agreed between the Parties.

27.2. Either Party may vary its given postal address or other contact details by notifying the other Party in writing. Postal addresses must be located within the Republic of South Africa.

27.3. Any notice given in terms of this Agreement must be in writing, and any notice given by any Party to another ("the addressee") which:

27.3.1. Is delivered by hand will be deemed to have been received by the addressee on the date of delivery; or

27.3.2. If sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax, and if outside such Business Hours then at the beginning of the next Business Day; or

27.3.3. Is transmitted by email will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee; or

27.3.4. Is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its chosen postal address will be deemed to have been received by the addressee on the 7th (seventh) day after the date of posting.

27.4. Despite the above:

27.4.1. Any notice that Trinico sends by email to an email account hosted on the Trinico System by the Customer will be deemed to have been received by the Customer on the date of transmission; and

27.4.2. If a written notice or communication is actually received by one of the Parties from the other, this will be adequate written notice or communication to that Party.

28 Disputes

28.1. In the event of any dispute arising between the Parties regarding this Agreement or any Service, the Parties will act in good faith to attempt to settle the dispute through discussions between the relevant representatives of the Parties within 30 (thirty) days of a Party giving the other Party notice of the issue in dispute. The Parties will follow any dispute or complaints resolution process that Trinico may have in place.

28.2. Any dispute which cannot be resolved by the Parties within the 30 (thirty) days period, as provided in this clause 28, will be resolved by arbitration in the English language by a single arbitrator appointed by the Arbitration Foundation of South Africa and in accordance with the Rules of the Arbitration Foundation of South Africa.

28.3. Notwithstanding the provisions of this clause 28, either Party will have the right to seek relief by way of interim relief from any court of competent jurisdiction.

28.4. Pending final settlement or determination of a dispute, the Parties will continue to perform their subsisting obligations hereunder.

28.5. Notwithstanding the above, the Customer consents to the jurisdiction of the Magistrate's Court in respect of any action initiated for the recovery of overdue payments, notwithstanding that the amount summonsed for exceeds such jurisdiction, the decision on which Court to proceed being in the sole discretion of Trinico.

28.6. Nothing in this clause 28 must be interpreted so as to restrict the Customer's right to approach the tribunal of its choice in terms of the CPA, if it is applicable.

28.7. This clause is separate from the rest of the Agreement and will remain effective between the parties if this Agreement is terminated.

29 Force Majeure

29.1. Neither Party will be liable for any delay or failure in performing any obligation under this Agreement due to any cause beyond its reasonable control, including without limitation: industrial action, sabotage, terrorism, civil commotion, riot, war, fire, explosion, storm, flood, or other natural physical disaster, any act or policy of any state or government or other authority having jurisdiction over either Party, sanctions, boycott or embargo, termination or suspension of upstream service.

29.2. If a delay or failure referred to in clause 29.1 occurs, this Agreement will be suspended for as long as the cause of the delay or failure lasts. If the suspension is longer than three months, either Party may terminate this Agreement by written notice to the other.

30 Interpretation

30.1. This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa.

30.2. In this Agreement, unless the context requires otherwise: words importing any one gender will include the other gender; the singular will include the plural and vice versa; a reference to natural persons will include created entities (corporate or unincorporate) and vice versa.

30.3. Words and expressions defined in any clause will, for the purposes of that clause, bear the meanings assigned to such words and expressions in such clause.

30.4. If any provision is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in a definitions clause, effect will be given to it as if it were a substantive provision in the body of the agreement.

30.5. Clause headings have been inserted for convenience only and will not be used for nor assist or affect its interpretation; where a clause number is cited, it will be deemed to include reference to all subclauses of that numbered clause.

30.6. The rule of construction that an agreement will be interpreted against the Party responsible for its drafting or preparation will not apply.

31 General

31.1. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to and signed by both parties will be of any effect.

31.2. If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still be enforceable.

31.3. The signatories / parties hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under this Agreement should they prove not to be so authorised.

31.4. In the event that any part of this Agreement is found to be partially or fully unenforceable for any reason, this will not affect the application or enforceability of the remainder of this Agreement.

31.5. By using the Products and Services, you are consenting to receive communications from the Provider. The Provider may send the Customer newsletters concerning new features, specials, promotions and other related services that the Provider may offer.

32 Domain Registration, Renewal, Redemption, Deletion & Domain Parking

32.1. The Registered Name Holder agrees to enter into a Registrar Registrant Agreement with the Provider when registering or transferring a domain with / to the Provider.

32.2. Ownership of the domain is the Customer's, only after full payment has been received.

32.3. Payments for a domain name registration are non-refundable. Once a domain name is registered, the WHOIS database stores the information and it is kept there for a period of one year, until the date of renewal ("Domain Parking"). Payment will NOT be credited back.

32.4. Domain Parking does NOT include Web Space, Virtual Hosting, or e-Mail facilities.

32.5. The Provider shall be indemnified and held harmless by the Customer if the Customer uses any Domain Name that infringes on any rights of any person, or company.

32.6. The Provider does not guarantee that a Domain Name requested by a Customer will be available. Provider's systems may reflect that the Domain Name requested is available; however, this domain may have been already taken, as the Provider's system is reliant on server updates from both local and international WHOIS servers.

32.7. As the Provider is a reseller of various domains, the Customer agrees to abide by the terms and conditions of the various domain registries / registrars worldwide, when registering a domain with the Provider.

32.8. As Domain registries / registrars charge a Registration Fee, Renewal Fee and Redemption Fee (this is the period after suspension by the Registry), the Customer agrees to pay the Provider the fees that relate to the registration, renewal, redemption, maintenance, or administration of the Domain Name. These fees are not refundable.

32.9. The Registrant Name Holder has up to 10 days after the Domain Expiry date to renew the domain. After which time the domain will enter the Redemption Grace Period.

32.10. Once the Domain has entered the Redemption Grace Period, the Domain will be suspended at the Registry and have a status of RGP (Redemption Grace Period). The registrant name holder has 20 days to restore their domain at the prevailing redemption fee, as published in our Fees Schedule on the Trinico Cloud Website.

32.11. Once the Redemption Grace Period has passed, the domain will be deleted from the Registry and is available to anyone to register as a brand-new name.

32.12. Should the Registered Name Holder activate auto-renewal on their domain name, the Registered Name Holder will be invoiced 30 days prior to the expiry of the domain. Once the Invoice has been paid, the domain will automatically be renewed for an additional year at the Registry.

32.13. Should the Customer misspell a Domain Name and the misspelt domain is registered, the Customer will be held liable for payment of the misspelt domain. No domain registration fee will be credited, and the Customer will then have to register the correctly spelled domain name at the cost of a new domain registration.

32.14. The Provider, through Trinico, is an official accredited Registrar of UniForum SA and as such all .co.za domain names are registered via the new accredited EPP system. Any domain registrations registered with the Provider, on the EPP system, cannot be transferred back to the legacy system, or be transferred to any other company that uses the legacy system; domains can only be transferred between Registrars.

32.15. Should a Customer request the Provider register a new .co.za domain on their behalf, and not want to use the EPP system, the Customer must notify the Provider of this prior to registration.

32.16. Should a Domain Name be registered on the EPP system and a Customer requests to move their hosting, the Provider can point all DNSs (name servers) elsewhere, allowing the Customer, in effect, to host their domain elsewhere. Should the name servers point to another ISP that is not accredited, or whom does not have EPP, the domain can / will be released at a later date, by written instruction from the client to the ISP / hosting provider, once they are EPP enabled.

32.17. Front-end consumer clients will receive email-based domain renewal notifications 90, 60, 30, 14, 7 and 1 day prior to expiry.

32.18. Resellers or clients of resellers will receive email-based domain renewal notifications 60, 30, 14 and 7 days prior to expiry.

32.19. Premium domains: As various registries worldwide mark high value domains as premium domains, these domains cost more. The provider will make every effort to apply pricing of a premium domain prior to checkout, however this may not always be possible. Should the client have paid for a domain which will be marked / reflected as premium a full refund of the regular price will be given.

32.20. Domain Availability: While the provider makes every effort to display accurate domain availability data and every attempt to secure a domain for the customer, on searching for a domain name via our / the registry WHOIS, the WHOIS service may show the domain as available however said domain may already be reserved / allocated / registered by another registrar or by another client. The provider shall not be held responsible in the event of a client registering / paying for a domain while the WHOIS reflects different information. The provider shall remit a full refund to the client in cases where this happens.

32.21. Time lapse between domain availability search and payment: As there are time delays between the domain availability search and the payment of the said domain, it may be possible that multiple parties are registering the same domain at the same time. The domain will be provisioned to the party that has paid first and the registry will reflect this party as the registrant.