VIRTUAL DATA CENTRE SERVICE Virtual Data Centre Service is a product offered by MWEB, which allows Customers to host, his/her/its information, data and applications, within MWEB s virtualised infrastructure as a service system without the use of physical servers. 1. DEFINITIONS 1.1. Unless the context clearly indicates to the contrary, any term defined in these Product Terms when used herein, shall bear the same meaning as defined in the General Terms and Conditions. 1.2. Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto: 1.2.1. Application Form means, for the purpose of these Product Terms, the form which the Customer completes to provide all information required by MWEB to provide the Virtual Data Centre Services to Customer and where Customer accepts MWEB s General Terms and Conditions and these Product Terms and where he/she/it selects the specific Virtual Data Centre Package. 1.2.2. Customer Data means the applications, information, files, or media that a Customer wishes to host in Virtual Machines, Virtual Applications or Organization catalogues created within the Virtual Data Centre. 1.2.3. Initial Package means that initial Virtual Data Centre Package selected by the Customer in the Application Form and which MWEB will use to set up and configure the Virtual Data Centre for the Customer. 1.2.4. Licensed Products refers to any software licensed to the Customer on behalf of MWEB by its respective licensors for use within the Virtual Data Centre. 1.2.5. Logs means the task and event logs that are kept by the Virtual Data Centre, whenever an action is performed within the interface. 1.2.6. Operating System Software means software that controls basic, low-level server hardware operations and file management, without the user thereof having to operate hardware and file management and licensed to Customer by MWEB. 1.2.7. Open-Source Software means any software licensed under any form of open source licence meeting the Open Source Initiative's Open Source Definition. Please refer to the following link: (http://www.opensource.org/docs/definition.php) 1.2.8. Organization means a software container that contains Virtual Data Centres, users, roles. policies and VDC Networks.
1.2.9. Physical Data Centre means MWEB s data centre situated at The Internet House, Greenacres Office Park, cnr Barry Hertzog/Rustenburg Roads, Victory Park, Johannesburg, Gauteng and/or any other address indicated by MWEB from time to time. 1.2.10. Service Fees means the fees payable by the Customer for the Virtual Data Centre Services, and which is dependent on the Initial Package elected by the Customer in the Application Form and any allowed changes made to the package. 1.2.11. Storage refers to the hosting of Customer Data within the Virtual Machine(s). 1.2.12. Storage Allocation means the amount of storage allocated to the Customer s Virtual Data Centre for use by Virtual Applications, Virtual Machines, or Organization catalogue items. 1.2.13. SPLA Software means software owned by Microsoft Corporation and supplied to MWEB by Microsoft Corporation in accordance with the provisions of the Service Provider License Agreement ( SPLA ), which SPLA Software is licensed to MWEB and licensed for use by MWEB to Customer for use by Customer in accordance with the provisions of these Product Terms and subject to the EULA (End User License Agreement) of the Microsoft Corporation. 1.2.14. Virtual Application or vapp means a collection of Virtual Machines that host a multi-tier application. 1.2.15. Virtual Data Centre or VDC means a software defined implementation of a data centre, that exposes the logical constructs of a data centre, including Storage Allocation, compute resources, networking and if selected virtual firewall devices. 1.2.16. Virtual Data Centre Network or VDC Network means a software defined implementation of a network that transmits and receives data between Virtual Machines, and gateway devices. 1.2.17. Virtual Data Centre Package means the package comprised of various items for selection by the Customer including (i) Storage Allocation; (ii) vghz Allocations; (iii) vram Allocation; (iv) Virtual Data Centre or VDC Network(s); (v) a Virtual Firewall or Edge Gateway (if selected). 1.2.18. Virtual Firewall or Edge Gateway is a virtual appliance that provides Customer with the ability to provision firewall rules, packet filtering and NAT. 1.2.19. Virtual Machine or VM means a software defined implementation of a computer that executes instructions received from the operating system, or applications installed within the operating system.
1.2.20. Virtual Memory Allocation or vram Allocation means the amount of memory allocated to the Virtual Data Centre that is then assigned to Virtual Machines as required. 1.2.21. vghz Allocation means the amount of gigahertz that is allocated to the to the Virtual Data Centre that is then assigned to Virtual Machines in the form of vcpus. 2. VIRTUAL DATA CENTRE SERVICES 2.1. MWEB undertakes to use its reasonable endeavors to provide Customer with the Virtual Data Centre Service on a 24 (twenty four) hour per day basis on each and every day for the continued duration of the Virtual Data Centre Service. 2.2. MWEB further undertakes to provision the Virtual Data Centre for the Customer in accordance with the Virtual Data Centre Initial Package and/or changes made to the Initial Package as selected by Customer in the Application Form. 2.3. Provisioning of the Virtual Data Centre for each Customer will include the following: 2.3.1. Provisioning of the Organization with one default user that has the Organization administrator role. 2.3.2. Provisioning of the VDC Network/s as specified. 2.3.3. Allocation of the IP range/s to the VDC Network/s. 2.3.4. Allocation of Public range/s to the Virtual Data Centre. 2.3.5. Allocation of the Storage Allocation, vghz and Virtual Memory. 2.3.6. Provisioning of the Virtual Firewall or Edge Gateway (if selected). 2.3.7. Provisioning of the amount of internet bandwidth in accordance with the Virtual Data Centre Package selected by Customer in the Application Form. 3. DISCLAIMERS 3.1. Although MWEB uses reasonable care and diligence to ensure that the Virtual Data Centre Service is available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable, MWEB does not warrant, represent or in any way guarantee, either expressly or by implication that the Virtual Data Centre Service is available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable. MWEB furthermore does not warrant, represent or in any way guarantee, either expressly or by implication the merchantability or fitness for a particular purpose of the Virtual Data Centre Service. The Virtual Data Centre Service accordingly is rendered "as is" and "as available" and is used at Customer s own discretion and risk.
3.2. The following circumstances and events may impact upon its use of the Virtual Data Centre Service and these circumstances and/or events are beyond MWEB's control: (i) use of the Virtual Data Centre Service by other customers; (ii) limitations upon national and/or international bandwidth capacity; (iii) telecommunication service operator failures; (iv) telecommunication links failures; (v) mobile service operator failures; (vi) Operating Systems Software; (vii) access technology failures; (viii) any action, omission and/or failure by Customer and/or his/her/its systems, software, network and/or equipment which has an impact on the Virtual Data Centre Service; (ix) any other action, omission and/or failure not within MWEB's control which has an impact on the Virtual Data Centre Service; and (x) incompatibility of Customer's systems, software, network or equipment with the Virtual Data Centre Service. 4. BILLING, PAYMENT AND CHANGES TO PACKAGE 4.1. Customer shall pay MWEB the Service Fees specified in the Application Form and in accordance with the provisions set out in the General Terms and Conditions and these Product Terms and which Service Fees for the Initial Package consist of the Service Fees for the following allocations: (i) Storage Allocation; (ii) vghz Allocations; (iii) vram Allocation; (iv) Virtual Data Centre Allocation or VDC Network(s) Allocation; (v) Virtual Firewall or Edge Gateway (if selected). 4.2. In the event that Customer wishes to purchase additional Virtual Data Centre Service resources, Customer shall contact the MWEB Business sales division to arrange for the additional Virtual Data Centre Service resources and for the payment by Customer to MWEB for the additional Service Fees. 4.3. Any changes to the Initial Package (i.e. increasing Storage, vghz, or vram Allocations) will be billed with immediate effect, however, downgrades or deletion of additional Virtual Data Centre Service resources will only be effected to the service by midnight on the same day. 4.4. Customer is not allowed to downgrade the Virtual Data Centre Package below the Initial Package during the Initial Term. Should the provision of the Virtual Data Centre Service continue as contemplated in clause 5.2 below, Customer shall give 1 (one) month s prior written notice for any downgrade. 4.5. MWEB reserves the right to limit any of the additional Virtual Data Centre Service resources required by Customer. Any additions and/or changes required and to be made by MWEB on behalf of Customer referred to above are subject to MWEB s written approval. 4.6. The billing of any changes made shall, notwithstanding the date on which such changes are initiated by Customer, commence with effect from the date of such change. 4.7. MWEB is under no obligation to verify the changes and/or additions made to Customer s Virtual Data Centre Package by Customer or any third party including its personnel which are alleged by Customer to have been made incorrectly, in error and/or
fraudulently. Customer shall be bound to those changes and the associated Service Fees with immediate effect of the changes made. 5. CONTRACT TERM 5.1. The Virtual Data Centre Service provided under the Agreement is for an Initial Term of 12 (twelve) months ( the Initial Term ) as specified in the Application Form signed by Customer. 5.2. At the end of the Initial Term it will endure indefinitely thereafter on the same terms and conditions (subject however to Service Fee adjustments) ( the Renewal Term ), unless terminated under the provisions of clause 7.1 and/or 7.2 or otherwise under these Product Terms or the General Terms and Conditions. 6. SUSPENSION 6.1. MWEB may suspend the Virtual Data Centre Services without liability if: 6.1.1. MWEB reasonably believes that the Virtual Data Centre Services have been accessed or manipulated by a third party without Customer s consent; and/or 6.1.2. MWEB reasonably believes that suspension of the Virtual Data Centre Services or a portion of the Virtual Data Centre Services is necessary to protect MWEB s IP network or its other customers; and/or 6.1.3. if MWEB reasonably suspects that Customer has violated or abused the Virtual Data Centre Services and associated products and/or breached the General Terms and Conditions and/or these Product Terms and/or MWEB s Privacy Policy and Acceptable Use Policy (AUP); and/or 6.1.4. if Customer does not cooperate with MWEB s reasonable investigation of any suspected violations or abuse of the Virtual Data Centre Services according to the General Terms and Conditions and/or these Product Terms; and/or 6.1.5. payment of the Service Fees for the Virtual Data Centre Services due and payable by Customer is overdue; and/or 6.1.6. MWEB is required to suspend the Virtual Data Centre Service by virtue of the operation of applicable law and/or industry policies. 7. TERMINATION 7.1. Either party may terminate the Agreement on the expiry of the Initial Term, by giving written notice to the other, no less than (3) three months before expiry of the Initial Term. 7.2. After the Initial Term either party may terminate this Agreement by giving the other no less than three (3) months notice in writing.
7.3. If this Agreement is terminated for any other reason than in accordance with clause 7.1 or 7.2, Customer shall be liable for any outstanding Service Fees for the balance of the Initial Term (or the Renewal Term, as the case may be) or any remaining notice period, at the then prevailing Service Fees. 7.4. Without prejudice to any other rights, MWEB may terminate Customer s rights to use the Licensed Products and/or use of Virtual Data Centre Service or (i) resources; (ii) SPLA Software; or (iii) Operating System Software, if Customer fails to comply with the General Terms and Conditions and/or these Product Terms. In the event of termination or cancellation of Customer s Agreement with MWEB or MWEB s agreement with its licensors, Customer must stop using and/or accessing the Licensed Products including use of Virtual Data Centre Services or any (i) resources; (ii) SPLA Software; or (iii) Operating System Software related to Virtual Data Centre Services, and destroy all copies of the Licensed Products and all of its component parts. 8. SECURITY OF THE VIRTUAL DATA CENTRE 8.1. The designated Organization administrator is responsible for role administration within the Organization that owns the Virtual Data Centre. Customer is responsible for managing the access to the Virtual Data Centre by his/her/its employees, consultants and/or agents (hereinafter referred to as the Authorised Personnel ). 8.2. Customer is responsible for managing the security and complexity of all passwords user accounts that are created by his/her/its Authorised Personnel within the operating systems and applications running within the Virtual Machines. 8.3. Customer will be solely responsible for all the maintenance and/or upgrades of the all Operating System Software and applications installed which will include any updates and security patches, as well changes and additions to the Initial Package. 9. VIRTUAL FIREWALL OR EDGE GATEWAY (IF SELECTED) 9.1. Customer may select a Virtual Firewall or Edge Gateway as part of the Virtual Data Centre Service. If selected Customer agrees that: 9.1.1. The designated Organization administrator is responsible for role administration within the Organization that owns the Virtual Data Centre. Customer is responsible for managing the access to the Virtual Firewall or Edge Gateway by his/her/its Authorised Personnel. 9.1.2. The Virtual Firewall or Edge Gateway is provided to Customer at Customer s request and shall be used by Customer at its sole discretion and risk. MWEB shall (without limiting the provisions of the Agreement), not be liable to Customer and/or any third party for any direct or indirect damages including consequential, incidental, special or punitive damages, loss of revenue, loss of profit, loss of information, loss of data, loss of business including financial loss of whatsoever nature caused by and/or resulting from: (i) error and/or fault in the Virtual Firewall or Edge Gateway and/or configuration; (ii) interruption and/or unavailability of the Virtual Firewall or
Edge Gateway and/or configuration including any component thereof; (iii) functionality and/or operational failures in the Virtual Firewall or Edge Gateway and/or configuration and/or any of its components. In the event of any error, failure, fault, interruption and/or unavailability of the Virtual Firewall or Edge Gateway and/or configuration, the Parties shall work together in: (i) identifying the error, failure and/or fault in the Virtual Firewall or Edge Gateway and/or configuration and any of its components which are impacting on the functionality, operation and availability of the Virtual Firewall or Edge Gateway and/or configuration; and (ii) resolving the error, failure and/or fault in the Virtual Firewall or Edge Gateway and/or configuration including any component thereof. 9.1.3. Customer or his/her/its Authorised Personnel will be responsible for the configuration and maintenance of all Edge Gateway services including (i) DHCP; (ii) NAT Rules; (iii) Firewall rules; (iv) Static Routing; (v) VPN; Load Balancer. 9.1.4. Should MWEB be required to fix and/or repair any error in the Virtual Firewall or Edge Gateway including any components thereof MWEB shall be entitled to charge Customer at the usual rate applicable to its engineers. 9.2. The following Chrome uncapped traffic allowance conditions apply on all Virtual Data Centre Packages bundled with the Virtual Firewall/Edge Gateway. The Chrome uncapped traffic only forms part of the package if Customer has selected Edge Gateway: 9.2.1. The peak traffic rate to the internet will be limited as follows for the different Chrome uncapped packages: 9.2.1.1. Chrome 1: Outbound traffic rate limited to 10Mbps, and the peak inbound traffic rate from the internet will be limited to 1 Mbps; 9.2.1.2. Chrome 2: Outbound traffic rate limited to 20Mbps, and the peak inbound traffic rate from the internet will be limited to 2 Mbps; 9.2.1.3. Chrome 3: Outbound traffic rate limited to 30Mbps, and the peak inbound traffic rate from the internet will be limited to 3 Mbps; 9.2.1.4. Chrome 4: Outbound traffic rate limited to 40Mbps, and the peak inbound traffic rate from the internet will be limited to 4 Mbps; 9.2.1.5. Chrome 5: Outbound traffic rate limited to 50Mbps, and the peak inbound traffic rate from the internet will be limited to 5 Mbps; 9.2.1.6. Chrome 6: Outbound traffic rate limited to 60Mbps, and the peak inbound traffic rate from the internet will be limited to 6 Mbps; 9.2.1.7. Chrome 7: Outbound traffic rate limited to 70Mbps, and the peak inbound traffic rate from the internet will be limited to 7 Mbps;
9.2.1.8. Chrome 8: Outbound traffic rate limited to 80Mbps, and the peak inbound traffic rate from the internet will be limited to 8 Mbps; 9.2.1.9. Chrome 9: Outbound traffic rate limited to 90Mbps, and the peak inbound traffic rate from the internet will be limited to 9 Mbps; 9.2.1.10. Chrome 10: Outbound traffic rate limited to 100Mbps, and the peak inbound traffic rate from the internet will be limited to 10 Mbps. 9.2.2. The peak outbound and inbound traffic rates specified in clause 9.2.1.1 to 9.2.1.10 do not constitute a sustained throughput guarantee, only an upper limit. Actual throughput will be determined by prevailing network conditions influenced by such factors as time of day and the external networks being communicated with. 9.2.3. The outbound traffic usage for any particular calendar month must exceed that of the inbound traffic usage of the same month. 9.2.4. The service shall not be used for the purposes of bulk downloading from the Internet by using the hosted server as a traffic proxy or tunnel relay. 9.2.5. Failure to comply with clause 9.2.3 or 9.2.4 shall constitute a breach of the Virtual Data Centre Services with an uncapped traffic allowance. 9.2.6. Should the conditions specified in 9.2.3 or 9.2.4 not be rectified in the month subsequent to written notification by MWEB, MWEB reserves the right to terminate the Virtual Data Centre Service unconditionally. 10. CUSTOMER DATA & ACCESS TO CUSTOMER DATA 10.1.All Customer Data uploaded to the Virtual Data Centre and/or Virtual Machine(s) by Customer remains Customer s responsibility. Customer shall be responsible for the content of any Customer Data passing through the Virtual Data Centre or Virtual Machine(s). MWEB has no interest in the contents of any such Customer Data and nothing that MWEB, its licensors or its suppliers do in the performance of its/their obligations in terms of the Virtual Data Centre Services shall be construed as an assumption of responsibility or liability by MWEB, its licensors or suppliers of the content/customer Data which passes through the Virtual Data Centre and/or Virtual Machine(s). 10.2.Customer is responsible for ensuring that Customer Data uploaded to the Virtual Data Centre or Virtual Machine(s) does not affect the operation, functionality and/or availability of the Virtual Data Centre and/ or Virtual Machine(s). 10.3.Customer Data security: MWEB is not responsible for the backing up of any of the Customer Data to the Virtual Data Centre or Virtual Machine(s). All back-ups are the responsibility of Customer. Customer accepts full responsibility for the content of any Customer Data. Customer furthermore agrees that MWEB has no interest in the contents of any such Customer Data and agrees that nothing that MWEB, its licensors
or its suppliers do in the performance of its/their obligations in terms of Customer Data uploaded or backed up by Customer shall be construed as an assumption of responsibility or liability by MWEB, its licensors or its suppliers of the content whether or not MWEB, its licensors or its suppliers had knowledge of such Customer Data. Customer indemnifies MWEB, its licensors or its suppliers and agrees to hold MWEB, its licensors or its suppliers harmless from and against losses or damages suffered or incurred by MWEB or for any such claims instituted against MWEB by a third party, arising out of or relating to the uploading or backing up of any Customer Data or content. 10.4.MWEB is not responsible to Customer for access to Customer Data or the use of the Virtual Data Centre Services. Customer is responsible for the use of the Virtual Data Centre Services by any person to whom Customer has given access, and any person who gains access to the Customer Data or the Virtual Data Centre Services, even if as a result of Customer s failure to use reasonable security precautions and even if such use was not authorized by Customer. 10.5.In the event of termination of the Virtual Data Centre Services, Customer is responsible for ensuring that Customer Data is retrieved from MWEB prior to the effective date of termination failing which, all Customer Data will be deleted. Customer will not be granted access to the Physical Data Centre and will need to remotely copy the Customer Data from their Virtual Data Centre or Virtual Machine(s). 10.6.Customer will not have access to the Customer Data on the Virtual Data Centre during a suspension or following termination. 11. ACCESS TO THE VIRTUAL DATACENTRE SERVICES 11.1.Customer shall under no circumstances be entitled to have any physical access to the Physical Data Centre where the Virtual Data Centre is hosted. 11.2.Customer may access the Virtual Data Centre Services via the online Virtual Data Centre control interface. MWEB, its licensors or suppliers may however modify its control panel at any time. 11.3.MWEB will only provide Customer with remote access to the Virtual Data Centre and Customer agrees (without limiting the applicability of the provisions of the Agreement), to subject himself/herself/itself to MWEB s applicable Privacy Policy and Acceptable Use Policy (AUP) when accessing the Virtual Data Centre. 12. STORAGE ALLOCATION 12.1.Customer acknowledges that MWEB has no access to Customer Data or access to filter Customer Data or intercept Customer Data and Customer is responsible and accountable for all the Customer Data and the contents thereof hosted in the Storage Allocation. MWEB shall not be liable for any illegal action or omission of Customer, including without limitation, improper use, misuse, neglect or abuse. Furthermore Customer shall not hold MWEB and/or its licensors and/or its suppliers liable for loss of Customer Data as a result of network interruptions, loss of power and/or faulty hardware
and Customer indemnifies MWEB, its licensors or its suppliers from such loss of Customer Data hosted on the Storage Allocation. 12.2.Upon termination of Virtual Data Centre Services and/or the termination of any license for any reason whatsoever, whichever is applicable, Customer shall immediately cease any use of Storage hosted in the Virtual Data Centre, use of Virtual Data Centre Services or any (i) resources; (ii) SPLA Software; or (iii) Operating System Software related to the Virtual Data Centre which shall include the Virtual Machines. All Online Backups made shall be deleted by Customer upon such termination. 12.3.All Customer Data stored within the Virtual Data Centre and/or Virtual Machine shall be deleted upon termination. Customer must ensure that all Customer Data is exported onto Customer s own storage device or server and MWEB shall not be responsible in any manner whatsoever for Customer Data and/or or the loss thereof due to the termination. 12.4.Customer accepts full responsibility for the content/customer Data delivered/transmitted/sent/stored on any Virtual Machine(s) using Virtual Data Centre Services. Customer furthermore agrees that MWEB has no interest in the contents/customer Data of any such Virtual Machine(s) and agrees that nothing that MWEB, its licensors or its suppliers do in the performance of its/their obligations in terms of Virtual Data Centre Services shall be construed as an assumption of responsibility or liability by MWEB, its licensors or its suppliers of the content/customer Data which is delivered/transmitted/sent/stored using the Virtual Data Centre whether or not MWEB, its licensors or its suppliers had knowledge of such content/customer Data. Customer indemnifies MWEB, its licensors or its suppliers and agrees to hold MWEB, its licensors or its suppliers harmless from and against losses or damages suffered or incurred by MWEB or for any such claims instituted against MWEB by a third party, arising out of or relating to the delivering/transmitting/sending/storing of any Customer Data or content via Virtual Data Centre. 12.5.MWEB will store Logs only for a maximum of 90 (ninety) days. 13. INTELLECTUAL PROPERTY All title and Intellectual Property Rights in the Virtual Data Centre Services and all components thereof including equipment, software, training and/or user manuals, provided to Customer, is owned by and shall remain vested in MWEB, its licensors or suppliers, as the case may be. Except if otherwise agreed, Customer shall not copy, duplicate, reproduce, transmit, modify, reverse engineer, decompile, or disassemble the Virtual Data Centre Services and its components, the equipment or any portion thereof, including any software associated with it in any way whatsoever and shall only use it for the purpose it is supplied. 14. SINGLE USE Customer shall use the Virtual Data Centre Service solely for internal purposes and shall not be entitled to directly or indirectly transfer, distribute, re-distribute, copy, sell, re-sell, lease,
rent, lend, license or sub-license the Virtual Data Centre Services and any associated licenses in whole or in part in any way whatsoever to any third party. 15. SOFTWARE 15.1.MWEB does not warrant and/or guarantee that any software, database and/or application required by Customer will function in the Virtual Machine(s). 15.2.MWEB will not be responsible for any software, database and/or applications installed, loaded and/or uploaded by Customer in the Virtual Machine(s), including the licensing thereof (hereinafter referred to as Unsupported Software ). 15.3.Customer agrees that any Unsupported Software contemplated in this clause 15 required and loaded by Customer on the Virtual Machine(s) will be its own responsibility and is loaded at its sole risk and responsibility. The licensing of all such installed Unsupported Software shall be the sole responsibility of Customer. All Unsupported Software shall be licensed in accordance with the vendor s software and/or application license agreements. 15.4.Customer will be solely responsible for all the maintenance and/or upgrades of the all Operating System Software and applications installed which will include any updates and security patches. 15.5.If MWEB supplies any open source software to Customer as part of the Virtual Data Centre Services then such open source software is subject to the terms of the applicable open source software license. There are no warranties provided with respect to any open source software and all implied warranties are disclaimed. 15.6.If MWEB supplies any SPLA Software to Customer as part of the Virtual Data Centre Services, such SPLA Software shall be subject to acceptance of this clause 15. 15.7.The SPLA Software is never owned by Customer, but licensed to Customer for use by the granting of a limited, non-transferable license for the duration of the provision of the Virtual Data Centre Services to Customer, through an arrangement that Microsoft Corporation has with MWEB. 15.8.In the event of termination of the Virtual Data Centre Services, Customer s right to access and use the SPLA Software will automatically terminate. 15.9.Customer shall indemnify and hold MWEB and Microsoft harmless from any claims arising as a result of: (i) improper installation of the SPLA Software on the Virtual Machine; (ii) any software virus introduced by Customer; (iii) Customer s including his/her/its employees, agents and/or contractor s breach of the provisions of this agreement; (iv) unauthorised installation, use, access, copying, reproduction and/or distribution of the SPLA Software. In addition, Customer shall be liable to MWEB and/or Microsoft Corporation for all damages, costs and expenses, including reasonable attorney s fees, resulting from Customer, and his/her/its employees, agents and/or
contractors continued distribution of allegedly infringing SPLA Software after MWEB has notified Customer to cease any specified action. 16. MICROSOFT END USER LICENCE FOR SPLA SOFTWARE Customer acknowledges that: (i) MWEB is duly appointed to license certain Microsoft software products to Customer in terms of a Microsoft Service Provider License Agreement entered into with the Microsoft Corporation; (ii) if Customer has selected any SPLA Software to be licensed for use to it by MWEB, the terms and conditions set out below will apply to the use of such Microsoft software products to Customer. These are the Microsoft Terms and Conditions: TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SPLA SOFTWARE This document concerns your use of Microsoft software, which includes computer software provided to you by MWEB as described below, and may include associated media, printed media, an online or electronic documentation. MWEB does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which MWEB needs to inform you. Your right to use the Licensed Products is subject to your Agreement with MWEB, and to your understanding of, compliance with and consent to the following terms and conditions, which MWEB does not have authority to vary, alter or amend. 1. DEFINITIONS. Client Software means software that allows a Device to access or utilise the services or functionality provided by the Server Software. Device means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, smart phone, or electronic device. Server Software means software that provides services or functionality on a computer acting as a Server. Software Documentation means any end user document included with server software; Redistribution Software means the software described in Paragraph 4 ( Use of Redistribution Software ) below. 2. OWNERSHIP OF LICENSED PRODUCTS. The Licensed Products are licensed to MWEB from an affiliate of the Microsoft Corporation ( Microsoft ). All intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music text and applets incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Products does not transfer any ownership of the Licensed Products or any intellectual property rights to you. 3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices by MWEB only in accordance with the instructions, and only in connection with the services,
provided to you by MWEB. The terms of this document permanently and irrevocable supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software. 4. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to you by MWEB, you may have access to certain sample, redistributable and/or software development ( SDK ) software code and tools (individually and collectively Redistribution Software ).YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY RESTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS ( SPUR ) APPLICABLE TO MWEB, WHICH TERMS MUST BE PROVIDED TO YOU BY MWEB. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by MWEB. 5. COPIES. You may not make copies of the Licensed Products, provided however, that you may (a) make one (1) copy of Client Software on your Device as expressly authorised by MWEB; and (b) you make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with MWEB, upon notice from MWEB or upon transfer of your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the Licensed Products. 6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Licensed Products, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity. 7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Products to any third party, and you may not permit any third party to have access to and/or use the functionality of the Licensed Products except for the sole purpose of accessing the functionality of the Licensed Products in the form of software services in accordance with the terms of this agreement and any agreement between you and MWEB. 8. TERMINATION. Without prejudice to any other rights, MWEB may terminate your rights to use the Licensed Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with MWEB or MWEB s agreement with Microsoft under which the Licensed Products are licensed, you must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of its component parts. 9. NO WARRANTIES, LIABILITIES OR REMEMDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEMDIES, IF ANY, ARE PROVIDED SOLELY BY MWEB AND NOT BY MICROSOFT OR IT S AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT. Any support for the Licensed Products is provided to you by MWEB and is not provided by Microsoft or its affiliates or subsidiaries. 11. NOT FAULT TOLERANT. THE LICENSED PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE LICENSED PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE. 12. EXPORT RESTRICTIONS. The Licensed Products are of U.S. origin for purposes of U.S export control laws. You agree to comply with all applicable international and U.S. laws that apply to the Licensed Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/. 13. LIABILITY FOR BREACH. In addition to any liability you may have to MWEB, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.