DISCLAIMER FOR LIABILITY

The client shall have no claim against Binary Systems and the client hereby indemnifies and holds Binary Systems free from liability in respect of any loss or damage:

caused by or arising from any fact or circumstances beyond the reasonable control of Binary Systems; or

if such loss or damage is consequential or incidental loss or damage; or

any downtime, outage, interruption in or unavailability of the server or the Binary Systems network as a result of or attributable to any of the following causes:

software service, repairs, maintenance, upgrades, modification, alterations or replacement;

system downtime for any reason (including, but not limited to, service, repairs, routine maintenance, agreed maintenance, environmental maintenance, upgrades, modifications, alterations, replacement or a relocation of premises);

any breakdown of whatever nature and howsoever arising in any of the services provided by Telkom (including, but not limited to, line failure) or in any international services or remote mail servers;

the non-performance or unavailability, of whatever nature and howsoever arising, of external communications networks to which the server or the Binary Systems network is connected;

any infringement of the client's rights of privacy and/or any other like rights (including those of any other person or entity), by any person whomsoever arising from the hosting of the client's web site in terms of this agreement;

any breach of security by any third party or any breach of confidentiality by a third party or otherwise arising from any access howsoever obtained by a third party to the client's information, data or content;

the damage, contamination or corruption of any kind of the server or any of the client's data, material, information and/or content howsoever occasioned;

the service, repairs, maintenance, upgrades, modification, alterations or replacement of hardware forming part of the server or any faults or defects of whatever nature in the hardware;

any service, repairs, maintenance, upgrades, modification, alterations, replacement or work of any nature done on the server by any third party;

any inaccuracies in the impression statistics given to the client or in the page counter on the client's web site;

without limiting the foregoing, as a result of any fact, cause or circumstances whatsoever and howsoever arising if Binary Systems has substantially performed its obligations under this agreement.

Binary Systems reserves the right to take whatever action it deems necessary at any time to preserve the security and reliable operation of the Binary Systems network and the client undertakes that it will not do or permit anything to be done which will compromise the security of the Binary Systems network.

Although Binary Systems shall use reasonable endeavors to provide disaster recovery, Binary Systems does not specify any recovery time, nor shall Binary Systems be liable for any loss or damage of whatever nature incurred or suffered by the client from any cause whatsoever as a result of Binary Systems failure to provide, or delay in providing, or providing only partial, disaster recovery.

The client is accordingly advised to make back-ups of its data. Nothing contained in this paragraph should be construed as a representation that any back-ups of data implemented by client will be successful or in any way will avoid disaster.

PAYMENT

Binary Systems shall invoice the client at the end of every month in respect of the monthly fees and any other fees payable in terms of this agreement and the total invoice shall be payable by the client to Binary Systems within fourteen days of date of invoice. In those cases where the relevant application form indicates a otherwise payment shall be made in terms of the application form.

No set-up fees paid by the client to Binary Systems in terms of this agreement shall be refundable.

During the first month of the agreement, the client shall be charged on a pro rata basis for services provided during that month.

Binary Systems shall be entitled to increase any charges payable by the client on thirty days notice, which may include e-mail notification.

The client shall not be entitled to any setoff, discount, refund or other credit in respect of any suspension or interruption of or delay in service, or where in any month the client has utilised less than any minimum bandwidth specified.

The provision and costs of development, including HTML coding, design and maintenance are not included in the prices set out in this agreement unless otherwise specified.

Should the client fail to pay any amount owing to Binary Systems on due date, Binary Systems shall be entitled, in its discretion and without prejudice to any other rights which it may have, to cancel this agreement without notice to the client, or to suspend performance of its obligations pending full payment by the client.

COMMENCEMENT, DURATION AND TERMINATION

This agreement shall commence upon acceptance of the application by Binary Systems. The agreement is effective for one year, save as expressly indicated to be the contrary in any specific product application form.

CESSION, DELEGATION OR ASSIGNMENT

The client shall not cede, assign or delegate or in manner whatever transfer (including but not limited to the sub-letting or re-sale of any disk space, server capacity or web hosting) of any of its rights or obligations under this agreement without the prior written consent of Binary Systems.

In the event of any change in controlling interest in the client, Binary Systems shall be entitled to terminate this agreement on notice to the client. The client shall notify Binary Systems of any change in its controlling interest within fourteen days of such change.

Binary Systems shall be entitled to cede, assign, transfer or delegate all or any of its rights or obligations under this agreement to an affiliate of Binary Systems or, subject to the consent of the client (which consent shall not be unreasonably withheld), to any third party.

DOMICILIUM

Each of the parties shall be entitled from time to time by written notice to the other to vary his domicilium to any other address within South Africa, which is not a post office box or poste restante.

Any notice required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.

Any notice given and any payment made by one party to the other ("the addressee") which :-

is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery;

is posted by prepaid registered post from an address within South Africa to the addressee at the addressee's domicilium for the time being, shall be presumed, until the contrary is proved, to have been received by the addressee on the 7th (seventh) day after the date of posting;

is transmitted by telefax or e-mail shall be deemed (in the absence of proof to the contrary) to have been received within 1 (one) hour of transmission where it is transmitted during normal business hours and within 2 (two) hours of the commencement of the following business day where it is transmitted outside those business hours.

MONITORING AND TERMINATION RIGHTS

The client acknowledges that Binary Systems has no knowledge of, nor interest in, nor in any way contributes to, nor approves the creation of the client’s content as hosted by Binary Systems and published by the client on the client’s web and that hosting or publication of certain kinds of content may be offensive, unlawful, in breach of codes of conduct binding on Binary Systems, violations of legislation (including regulations), violations of the common law generally, and violations of the requirements and rules of any regulatory authority and that hosting and publication of certain kinds of content may cause harm to the name, goodwill and reputation of Binary Systems, its affiliates, and its business partners.

Accordingly the client agrees, if Binary Systems in the exercise of its sole discretion is of the opinion that the client’s content is offensive, unlawful, or harmful, as set out above, that Binary Systems without derogating from any of its other rights in terms of this agreement, may:

request the client forthwith to remove the offensive, unlawful, or harmful content, as the case may be; or

request the client forthwith to amend or modify the content; or

without notice delete the client’s web site from the server; or

without notice terminate access to the client’s web site; or

without notice remove the client from the business listing

The client agrees that nothing that Binary Systems does in the performance of its obligations in terms of this agreement or in the carrying on of its business generally shall be construed as an assumption of responsibility or liability by Binary Systems for the content of the client’s web site and the publication thereof, whether or not Binary Systems had knowledge of such content and the client hereby indemnifies Binary Systems and holds it harmless against any liability and any claims of whatever nature made by any person for any loss or damage suffered arising directly or indirectly from the hosting and/or publication of the client’s content as well as any other data on the client’s web site.

Binary Systems shall use its best endeavors to notify the client of any action taken in terms of the clauses above, but does not warrant that notice shall be given to the client prior to such action being taken.

MAINTENANCE AND REPAIR

Binary Systems may temporarily suspend its obligations in terms of this agreement in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the Internet services. Where the circumstances permit, Binary Systems shall use its best endeavors to provide prior notice of any such suspension to the client. The client shall not be entitled to any setoff, discount, refund or other credit in respect of any such suspension of service nor in respect of any suspension which is beyond Binary Systems control.

GENERAL

This document constitutes the sole record of the agreement between the parties and no addition, variation or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties;

No party shall be bound by any express or implied term, representation, warranty or the like which is not recorded in this agreement;

No extension of time or indulgence which one party (the grantor) may grant to the other (the grantee) shall constitute a waiver of any of the rights of the grantor who shall not be precluded from exercising any past or future rights against the grantee.

BREACH

If either Binary Systems or the client breaches any term of this agreement and fails to remedy such breach within seven days of written notice requiring it to do so, then the party not in breach shall be entitled, but not obliged, without prejudice to any rights or remedies which it may have, to cancel this agreement or to claim immediate performance and/or payment by the party in breach.