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BACKUPSA WEBSITE TERMS OF USE

BackupSA offers the Service to Users in terms of these Website Terms published at www.backupsa.co.za/legal.php.

For ease of use, BackupSA has included automated links ("hyperlinks") in these Website Terms to text located elsewhere on the Website. The User is obliged to view the relevant parts of the hyperlinked text, which text shall be deemed to form part of these Website Terms.

PART 1 – SOFTWARE AND SERVICES

1.         INTRODUCTION

1.1                   BackupSA provides a website that offers a data backup service to Users.

1.2                   By using any of BackupSA’s Services, you agree that you have read, understand and are bound by the terms and conditions set out herein.

1.3                   If you do not want to be bound by these terms and conditions, you must not use the Services, even on a trial basis.

2.         INTERPRETATION

In these Website Terms, unless a contrary intention appears –

2.1                   the clause headings have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation;

2.2                   any reference to (i) the singular includes the plural and vice versa, (ii) any gender includes the other genders and (iii) a natural person includes a juristic person and vice versa;

2.3                   the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to these Website Terms;

2.4                   the words and expressions defined in clause 3 shall bear the meanings assigned to them in that clause 3 and cognate expressions shall bear corresponding meanings;

2.5                   any reference to “days” shall be construed as being a reference to calendar days unless qualified by the word “business” in which instance a “business day” shall be any day other than a Saturday and a Sunday and/or a public holiday as gazetted by the Government of the Republic of South Africa from time to time.  Any reference to “business hours” shall be construed as being the hours between 08h00 and 17h00 on any business day;

2.6                   the word “include” and “including” means “include without limitation” and “including without limitation”.  The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it;

2.7                   terms other than those defined within these Website Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings;

2.8                   defined terms appearing in title case shall be given the meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with the ordinary meaning as qualified by clause 2.7 and shall, unless the context otherwise indicates, include the term as defined.

3.         DEFINITIONS

In these Website Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause:

3.1                   “Agreement” means the contract entered into between BackupSA and the User consisting of, inter alia, these Website Terms and the BackupSA Privacy Policy as updated from time to time and the information supplied by the User to BackupSA on registration;

3.2                   “BackupSA” is the trading name of My Personal Backup South Africa CC, a close corporation duly registered and incorporated in accordance with the company laws of the Republic of South Africa whose registered office and principal place of business are set out in Part 3;

3.3                   “Data Centre” means the data storage facility used to provide the data backup service which is owned and maintained by Iron Mountain;

3.4                   “Destructive Code” means any computer code which (i) is designed to disrupt, disable, harm or otherwise impede in any manner the operation of the Software, Hardware, Network or Service (generally referred to as “viruses”, “Trojan horses” or “worms”), (ii) would disable the Software, Hardware, Network or Service or impair in any way its operation based on the running out of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (generally referred to as “time bombs”, “time locks” or “drop dead” code), (iii) would permit any person to access the Software or another User’s data (generally referred to as “trap”, “access code”, “back door” or “trap door” codes) and (iv) any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause the Software, Hardware, Networks or Service to cease functioning or to damage or corrupt data, storage media, programs, equipment or otherwise interfere with the Services;

3.5                   “ECT Act” means the Electronic Communications and Transactions Act, 25 of 2002;

3.6                   “Fees” mean the Service fees to be paid by the User for the Service as dealt with in clause 10;

3.7                   “Intellectual Property Rights” or “Intellectual Property” includes all works eligible for copyright under section 2 of the Copyright Act, 98 of 1978, domain names, trade or business names, trade secrets, know-how and all rights or forms of protection of a similar nature in any country and whether or not registerable, registered or application for registration thereof has been made in any part of the world;

3.8                   “Iron Mountain” means Iron Mountain Management Incorporated a company registered and incorporated in the United States of America .

3.9                   “Login Data” means the username, password, e-mail address and/or cell phone number provided to BackupSA by the User for purposes of the Service;

3.10                 “Marks” means any trademarks, logos, brand names, domain names or other marks of (i) BackupSA or (ii) any other owner of the Marks;

3.11                “Party” and “Parties” means BackupSA and the User;

3.12                 “Service” means the data backup and recovery service provided by BackupSA to the User;

3.13                 “Software” means the software provided by BackupSA to the User under licence from Iron Mountain which will enable the User to use the Service;

3.14                “Trial Period” means the time period that the User will register for and use the Service free of charge, as specified on the Website at www.backupsa.co.za/trial.php

3.15                “User” means the person who has registered with BackupSA through the Website;

3.16                “Website” means the website from which the Service is provided, currently being www.backupsa.co.za;

3.17                “Website Terms” means these terms of use.

4.         AGREEMENT

4.1                   The Software, information technology infrastructure and data storage facility used to provide the Service is owned and maintained by Iron Mountain.

4.2                   BackupSA provides the Service to the User (i) in terms of its agreement with Iron Mountain , (ii) subject to the terms and conditions of this Agreement.

4.3                   This Agreement shall be deemed to have been accepted by the User at the time when the User first registers with BackupSA as contemplated in clause 5 and is thereafter confirmed each time the User uses the Website. 

4.4                   Acceptance of this Agreement shall be deemed to have taken place at 22 Le Chateau, Alma Steyl Place, Meyersdal, Johannesburg, 1448  

4.5                   The User accepts and acknowledges that all electronic communications with BackupSA through the Website and via e-mail shall constitute “writing” as provided for in section 12 of the ECT Act where there is a requirement in law that a document or information must be “in writing”.

4.6                   The User furthermore agrees that acceptance of this Agreement constitutes his express written consent to (i) the transfer to and (ii) the hosting of any and all personal information of the User in the United States of America, subject to the provisions of all applicable USA laws, including the USA Patriot Act 2001.

5.         REGISTRATION

5.1                   Before using the Website, the User shall first have registered with BackupSA through the Website.

5.2                   Registration is restricted to individuals who may legally enter into binding and enforceable agreements in terms of South African law. Accordingly, persons under the age of 18 years of age or who are not legally permitted in terms of South African law to enter into binding and enforceable agreements may not register..

5.3                   Should BackupSA accept the User’s registration, the User will be e-mailed confirmation of his registration and receive an account number from BackupSA as his reference number for use of the Service and for use in all correspondence to BackupSA.

5.4                   The User accepts that although the Website has been configured to confirm receipt of a request to register, technical or other problems may delay or prevent such confirmation.

6.         PASSWORD

6.1                   The User acknowledges further that all Login Data chosen by the User is personal to the User. 

6.2                   The User accordingly agrees not to provide the Login Data to any person or entity not a party to this Agreement.  In the event of the User doing so, BackupSA (i) shall be entitled to suspend access to the Website in terms of clause 14 and (ii) shall not be liable for any damages sustained by the User arising therefrom.

6.3                   The User authorises BackupSA to act on any requests emanating from the User from the Website and/or which appear to emanate from the User, even if it transpires that both BackupSA and the User have been defrauded by someone else, unless the User has notified BackupSA in terms of clause 6.4.  The provisions of this clause 6.3 shall apply equally to any subsequent interaction by the User with the Website including, but not limited to, his change of address and changes to his debit order.

6.4                   If the User suspects that the confidentiality of his Login Data has been compromised, the User shall immediately report this to BackupSA at  support@backupsa.co.za and shall give his full co-operation to BackupSA in any investigation carried out by BackupSA. Upon receipt of the e-mail, telephone call or facsimile, BackupSA shall be entitled to suspend the Service in accordance with the provisions of clause 14 (Suspension of Service) until such time as the matter has been resolved to the satisfaction of both Parties.

6.5                   The User shall remain responsible for (i) all data uploaded to the Data Centre prior to the suspension of the User’s registration and (ii) all activities that occur on the Website after a User has logged in using the Login Data at any point in time.

6.6                   The User shall be liable for any loss or damage sustained by the User, BackupSA or any third party as a result of any actions by the User or any other person to whom the User has disclosed his Login Data.

6.7                   The User hereby indemnifies BackupSA against any claim howsoever arising from (i) the User’s disclosure of his Login Data to a third person, whether intentionally or negligently, (ii) the use of such Login Data by a third person and/or (iii) any action or inaction by the User or third party as a result thereof.

7.         COMMENCEMENT AND DURATION

7.1                   This Agreement shall commence and become binding on the User with effect from the date that the User first registers with BackupSA (“the Commencement Date”).

7.2                   The Service will be provided to the Customer free of charge for the duration of the Trial Period, whereafter the Services shall automatically be terminated by BackupSA, unless the User responds to an e-mail sent by BackupSA to the User’s e-mail address provided on registration informing BackupSA that it wishes to make use of the Service and has made payment of the first month’s Fee in terms of clause 10, whereafter this Agreement shall continue and remain in force until terminated in accordance with the provisions of clause 15 below.

8.         PROVISION OF THE SOFTWARE AND SERVICE

8.1                   Software

8.1.1                           In order to use the Service, the User has to download and use the Software.

8.1.2                           The Software is licensed to the User by Iron Mountain in accordance with the terms and conditions of use located at www.ironmountain.com/legal/connectedpc.asp and by registering for the Service, the User confirms that he has read, understood and agrees to be bound by such Software licence terms.

8.2                   Use of the Website

8.2.1                           BackupSA grants the User a limited, non-exclusive licence to access and make personal use of the Website.  The User shall not be allowed to modify (other than by page caching) the Website or any portion thereof without the prior written consent of BackupSA.

8.2.2                           The aforesaid licence does not permit any resale or commercial use of the Website or its contents, any collection of any descriptions or prices, any derivative use of the Website or its contents, any downloading or copying of account information for the benefit of another supplier of a service similar to the Service, or any use of data mining, robots or similar gathering and extraction tools.

8.2.3                           The Website, or any portion thereof, together with any documents available on the Website, may not be reproduced, duplicated, copied, sold or otherwise exploited for any commercial purpose without the prior written consent of BackupSA.  The User shall furthermore not frame or utilise any framing techniques to enclose any Marks or other proprietary information (including images, text, page layout or form) without BackupSA’s prior written consent.

8.2.4                           Neither the User nor any third party shall use any meta tags or any other “hidden text” utilising the BackupSA name or the Marks without the prior written consent of BackupSA.

8.2.5                           The User is hereby granted a limited, revocable and non-exclusive right to create a hyperlink to the homepage of the Website as long as the hyperlink does not portray BackupSA or its Services in a misleading, derogatory or otherwise offensive manner.

8.2.6                           BackupSA may provide hyperlinks from the Website to other websites which may offer services similar to the Service to the User.  BackupSA is not responsible for evaluating the content or offerings made on those websites nor does it endorse the offerings of the websites to which hyperlinks may be provided or, that of any third party websites which may be accessed through these hyperlinked websites.  No liability shall be attributed to BackupSA for any dealings with any other websites accessed through hyperlinks provided by BackupSA and the User shall be solely responsible for assessing the terms and conditions of any of these websites.

8.3                   Disclaimer

8.3.1                           BackupSA will always endeavour to provide the Service to the best of its ability in accordance with the Service levels set forth in clause 8.4 hereunder.

8.3.2                           The User recognises that the provision of the Service will involve transmissions over various networks and that it will change to conform and adapt to the technical requirements of connecting networks and devices. There are also various other factors, which do not lie within BackupSA’s control.

8.3.3                           Under these circumstances, BackupSA:

8.3.3.1                                    provides the Service “as is” and “as available”;  and

8.3.3.2                                    does not warrant or guarantee that the Service:

8.3.3.2.1                                             will be free of errors or interruptions;

8.3.3.2.2                                             will always be available and reliable;

8.3.3.2.3                                             is secure, although BackupSA and Iron Mountain will take appropriate security measures against unauthorised access to or unauthorised alteration, disclosure or destruction of data;

8.3.3.2.4                                             is fit for any purpose.

8.4                   Service Levels

8.5                   The Iron Mountain Data Centre is architected to deliver the maximum system uptime, security and reliability.  BackupSA, through Iron Mountain, offers a 99.5% uptime guarantee.  This means that for any given month, while unlikely, it is possible that BackupSA may experience an average downtime of up to 240 minutes per month, excluding scheduled maintenance.

8.6                   The 10 most recent versions of all the User’s files backed up by way of the Service will be available for a period of 90 days from the date of backup.

8.7                   Iron Mountain runs scheduled maintenance during a standard maintenance window from Monday through to Thursdays from 03h00 to 07h00 hours GTM.  BackupSA will provide the User with 48 hours advance notice by e-mail should scheduled maintenance take place outside of these hours [?][A1] .

9.         SPECIFIC USER OBLIGATIONS

By using the Service the User agrees and acknowledges that:

9.1                   It will have all necessary right and title over data uploaded to the Data Centre / permission to upload data to the Data Centre;

9.2                   It takes full responsibility for all data that it uploads to the Data Centre;

9.3                   It will not knowingly upload any data that:

9.3.1                           infringes the Intellectual Property Rights of any third party;

9.3.2                           infringes anyone’s rights to privacy;

9.3.3                           is illegal;

9.3.4                           contains any Destructive Code;  and

9.3.5                           use the Software in contravention of the terms of the license upon which the Software has been licensed to the User, located at: www.ironmountain.com/legal/connectedpc.asp.

9.4                   The User acknowledges and warrants that:

9.4.1                           all personal information furnished to BackupSA is true and correct;

9.4.2                           all information provided to BackupSA, whether through the Website or otherwise, will at all times and in all respects be current, complete and accurate;

9.4.3                           the User will disclose all material and relevant facts known to him, and acknowledges that a breach thereof may lead to this Agreement being void or subject to cancellation;

9.4.4                           he is aware that and consents to all personal information and data being transferred to and hosted in the United States of America, subject to all applicable USA Laws, including the USA Patriot Act 2001.

10.      FEES

10.1                The Fees payable by you for the Service will be stipulated on the Website.

10.2                All fees payable by the User are indirectly linked to Iron Mountain charges.  As such, the Fees payable by the User are subject to change due to fluctuations in the foreign currency exchange rate.  Notwithstanding this, all Fees are payable in South African Rands.

10.3                BackupSA accordingly reserves the right to change the Fee from time to time and any such change will be deemed to be an amendment of these Website Terms.  Where BackupSA does amend its fees, it will provide the User with at least 30 days prior notice of such change to the e-mail address furnished by the User on registration.  If the User objects to any such change, it shall be entitled to terminate this Agreement.

10.4                The Fees are payable monthly in advance on the 25th day of the preceding month.

10.5                If the User fails to make payment of the Fees in terms of clause 10.3 above  or fails to pay any amount due for any reason when due, BackupSA shall:

10.5.1                         suspend the User’s subscription and his use of the Service for a period of seven days and inform the User of such suspension by email to his chosen domiciluim address ; or

10.5.2                         terminate this Agreement in terms of clause 15.2;  and/or

10.5.3                         charge the User interest at a rate of 2% above the prime overdraft rate of BackupSA’s bankers, as certified by any branch manager of such back who appointment, qualification and authority BackupSA will not need to prove, calculated from the due date to date of actual payment, both days inclusive.

10.5.4                         The User shall not:

10.5.4.1                                 withhold payment of any amount due to BackupSA by reason of any alleged breach of these Website Terms by BackupSA, or for any other reason;  or

10.5.4.2                                 apply set-off in respect of any amount due to BackupSA.

10.6                All amounts due and payable by the User at any time will be determined and proved by a certificate signed by one of BackupSA’s members, whose appointment, qualification and authority BackupSA does not need to prove.  Such a certificate will be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence or any other judgment against the User.

11.      PAYMENT METHODS

The User shall make use of one of the following payment methods as specified on the Website at www.backupsa.co.za/insert link to effect payment of the Fees to BackupSA :

11.1                Credit cards:  Mastercard and Visa  are accepted through Virtual Credit Services

11.2            Debit orders through  NETCASH

12.      INTELLECTUAL PROPERTY RIGHTS

12.1                The User is obliged to comply with all laws applicable to any Intellectual Property Rights in respect of any data and/or information accessed, retrieved or stored by the User through the User’s use of the Website.

12.2                Other than as specifically provided for in these Website Terms, BackupSA will wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all Intellectual Property Rights employed in or otherwise related to its business and the provision of any of the Service in terms of these Website Terms.

13.      PRIVACY, SECURITY, MONITORING AND FRAUD

Privacy

13.1                Protecting User privacy is of utmost importance to BackupSA.  Accordingly, BackupSA has developed a Privacy Policy in order to safeguard the User’s personal information and to protect the confidentiality thereof. 

13.2                While BackupSA will do all things reasonably necessary to protect the User’s rights of privacy whilst on the Website, BackupSA cannot accept any liability whatsoever for unauthorised or unlawful disclosure of the User’s personal and confidential information made by third parties who are not subject to BackupSA’s control.

13.3                BackupSA will accordingly not be liable to the User or to any third party for any loss or damage incurred by the User or by any other third party arising from, or in any way related to, such disclosure of the User’s personal information. 

Security

13.4                BackupSA makes use Virtual Card Services credit card payment services and NETCASH Debit order payment services who are respectively responsible for securing any credit card information or debit order information provided by the User as well as the security around the payment itself. The User accordingly effect payment of the Fees by credit card and debit order at its risk.

13.5                If any security violations are reasonably believed to have occurred in connection with the User’s account, BackupSA will investigate the same forthwith and, if necessary, change the relevant Login Data, including the user ID, password, e-mail address and any other access information and give the User immediate notification. 

13.6                BackupSA reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its infrastructure and the User undertakes not to do or permit anything to be done which will compromise BackupSA’s security.

Monitoring

13.7                BackupSA monitors the Service to track activity to improve the quality of the Service.  BackupSA does not, as a general practice, monitor its Users' activities. Where BackupSA is required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 (“RICA”) any interception of communications shall be strictly carried out in accordance with the requirements of RICA, as and when required under RICA.

13.8                The User specifically agrees that it shall have no recourse against BackupSA in the event of BackupSA acting in terms of clause 13.7 and accordingly waives his right to make any claim or demand or to institute any legal proceedings against BackupSA.

Fraud

13.9                If a User suspects that he has been a victim of any Website related fraud, he shall inform BackupSA by email to support@backupsa.co.za as soon as the User becomes aware that a suspicious transaction has occurred.  The User agrees to co-operate with BackupSA in any investigation conducted into any losses suffered by the User or BackupSA.  BackupSA undertakes to investigate all reported cases of Website fraud.

14.      SUSPENSION OF THE SERVICES

14.1                BackupSA is entitled to temporarily suspend the operation of the Service and/or Website (i) where it has been notified by a User that he suspects that the confidentiality of his Login Data has been compromised, (ii) in order to service, repair, maintain, upgrade, modify, alter, replace or improve the Service and/or Website or (iii) where any person or entity not a party to this Agreement has accessed the User’s data.

14.2                For purposes of clause 14.1, where circumstances permit, BackupSA will use its best endeavours to provide prior notice of any such suspension to the User and BackupSA shall not be liable for any loss or damage of whatever nature incurred or suffered by the User arising from or in connection with or from any cause whatsoever as a result of such suspension.

15.      TERMINATION OF THE SERVICES

15.1 Termination by the User:

15.2         Termination by BackupSA for non payment of Fees: Should the User fail to make payment of the following month’s Fees as specified in clause 10 above, BackupSA shall suspend the User’s access to and use of the Service for a period of seven days and notify the User by email to its chosen email address of the suspension. In the event of the User not effecting payment to BackupSA within 7 days of the suspension, BackupSA shall terminate the Agreement with immediate effect.

15.3                Termination by BackupSA for other breach: Should the User breach any of the other BackupSA Website Terms, then BackupSA shall be entitled, without prejudice to any other rights that BackupSA may have and without notice to the User, to cancel the Agreement with immediate effect and/or (i) forthwith claim immediate payment of all outstanding monies due to BackupSA, (ii) terminate or suspend the User’s use of the Service, (iii) terminate its relationship with the User and/or (iv) list the User with any credit bureau or Internet service provider list or the South African Fraud Prevention Service which the User hereby expressly consents to.  In all instances, BackupSA shall be entitled to retain all Fees already paid by the User and recover all of its costs associated with the Users breach, including without limitation, legal costs on an attorney and own client scale, whether incurred prior to the institution of, or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of such judgment.

15.4                Effect of termination: Upon termination, the User shall destroy the Software. BackupSA shall instate an automatic process to remove and destroy all of the User’s backed up data stored in terms of the Service, approximately 30 days after the backup account status is marked as cancelled, immediately after the termination date of this Agreement.

16.      COMPLAINTS AND DISPUTES

16.1            Should the parties not be able to resolve any dispute by the Parties directly involved in the execution of this Agreement, either Party shall have the right to demand that the dispute be resolved in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.  The provisions of this clause constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by the provisions of this clause.  This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

16.2            The arbitration referred to above shall be held in Meyersdal, in English as soon as practically possible with a view to it being completed within 21 (twenty-one) Working Days after it has been demanded. 

16.3            The Parties irrevocably agree that the decision in the arbitration proceedings shall be final and binding on the Parties.


PART 2 - GENERAL

17.      FORCE MAJEURE

17.1                On the happening of an event beyond the control of BackupSA, any delay or failure in performance or breach by BackupSA occasioned thereby or resulting therefrom will not be deemed to be a breach of these Website Terms by BackupSA, nor shall it subject BackupSA to any liability whatsoever.

17.2                For  purposes of clause 17.1, an event beyond the control of BackupSA includes any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure and/or telecommunications lines provided by any third party, including, but not limited to, the Telkom Limited group of companies, or any circumstances of like or different nature beyond BackupSA’s reasonable control.

18.      NO WARRANTY

18.1                The Software and Services are provided “as is” and “as available” and without any further warranty of any nature whatsoever, whether express or implied, including without limitation warranties of merchantability, fitness for purpose, title or non-infringement.

18.2                Under no circumstances shall any advice or information furnished by BackupSA, its agents or employees be construed as a warranty of any kind.

19.      DISCLAIMER AND LIMITATION OF LIABILITY

19.1                BackupSA disclaims all liability and shall not be liable for any data that was not uploaded by the User, using the Service, to the Data Centre.  The User is accordingly required to check the log files provided to him to ensure that the intended data has been transmitted.

19.2                Neither BackupSA, its directors, employees, agents, consultants and advisors shall be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or how so ever caused (whether arising, or may arise (i) due to any negligence or gross negligence by BackupSA or (ii) out of the Service and/or the use thereof, under contract, delict or otherwise) sustained by the User.

19.3                BackupSA’s liability for any direct damages shall be limited to the Fees paid to BackupSA by the User for a period of 1 month.

19.4                Direct damages shall exclude:

19.4.1                         alteration and/or reconstruction of lost data;

19.4.2                         loss of profits or business;

19.4.3                         any such damages arising from the interruption of or error in the Service;

19.4.4                         loss of integrity of data.

20.      AMENDMENTS TO WEBSITE TERMS

20.1                The User hereby consents to BackupSA amending these Website Terms in order to cater for changes in BackupSA's business needs and applicable legislation.

20.2                BackupSA accordingly reserves the right, at any time, to amend these Website Terms to which the User is bound after having given reasonable notice to the User.  If the User objects to any amended Website Terms which are binding on him, the User is entitled to cancel this Agreement, in which case the Product/s will thereafter be dealt with in accordance with BackupSA's ordinary business practices.

21.      GENERAL

21.1                Whole Agreement:  The Agreement constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in the Agreement.

21.2                No Variation:  No variation or consensual cancellation of the Agreement and no addition to the Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives.

21.3                Waiver:  No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given.  No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

21.4                Severability:  Should any of the terms and conditions of the Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions, which will continue to be valid and enforceable.  If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.

21.5                Applicable Law:  The Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.

21.6                Survival:  Notwithstanding termination of the Agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.


PART 3 - DISCLOSURES IN TERMS OF SECTION 43 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT

The following information is made available by BackupSA to the User in compliance with section 43 of the Electronic Communications and Transactions Act, 25 of 2002:

Full name and legal status of Website owner: My Personal Backup South Africa CC

Registration No.:2007 / 237794 / 23  

Members and Office Bearers: Naina Daya; Amit Parbhucharan; Santosh Pursad; Seema Kalan; Prafool Vala

Registered office: 22 Le Chateau, Alma Steyl Place, Meyersdal, Johannesburg, 1448  

Postal address: PostNet Suite 1F, Private Bag X87, Bryanston, Sandton, 2021

Telephone No: 0861-111-881

International Telephone: +27 123 66 0760, for further information on other branches, please check the BackupSA website at www.backupsa.co.za

Website address:  www.backupsa.co.za

E-mail address: support@backupsa.co.za

Address for service of all legal documents: 22 Le Chateau, Alma Steyl Place, Meyersdal, Johannesburg, 1448

Self Regulatory Body Membership: not applicable

Code of Conduct BackupSA Subscribes to:   Not applicable.

Service Description: see clause 3.12

Price:  see clause 10

Manner of Payment:  see clause 11

Terms and Conditions governing the Service: see clauses 4  

Delivery of Service: not applicable  

Transaction records and history:  see www.backupsa.co.za/subscriberassist

Return, exchange and refund policy: not applicable

Alternative dispute resolution code applicable:  None.

Privacy and security:  See clause 13

Minimum duration of Agreement:  one month unless terminated earlier in terms of clause 15

User rights in terms of Section 44 of the ECT Act:  Not applicable.

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