Terms of Service
Cyber Geek Hosting & Email Terms of Service
1. Application of These Terms
These Hosting & Email Terms of Service apply to all web hosting, email hosting, domain-related and associated hosting services (“Services”) supplied by Cyber Geek to its clients.
By ordering, using, renewing or continuing to use the Services, the Client agrees to these Terms together with any other applicable Cyber Geek policies and the terms and acceptable use policies of any underlying third-party service provider.
Where Cyber Geek procures hosting or related services from xneelo (Pty) Ltd (“xneelo”), the Client acknowledges that the Services are also subject to xneelo’s applicable Terms of Service, Specific Terms and Conditions, Acceptable Use Policy and Privacy Policy, as amended from time to time.
2. Reseller and Third-Party Infrastructure
Cyber Geek acts as a reseller and service provider and may procure all or part of the underlying hosting, email, domain, network, data centre or infrastructure services from third-party providers, including xneelo.
The Client acknowledges that Cyber Geek does not own, operate or have direct physical control over all infrastructure used to provide the Services.
Where an interruption, outage, degradation or failure originates from an underlying service provider, network operator, data centre, internet service provider, electricity provider, registry, software provider or other third party, Cyber Geek will use reasonable efforts to report, escalate and assist with the resolution of the issue but cannot guarantee the time within which the third party will restore the affected service.
3. Service Availability
Cyber Geek will take reasonable steps to facilitate the provision of the Services on a continual basis.
However, internet, hosting and email services are inherently dependent upon complex technical systems and third-party infrastructure.
Accordingly, unless expressly agreed otherwise in writing, Cyber Geek does not warrant or guarantee that the Services will:
be available 100% of the time;
operate without interruption or downtime;
be error-free;
be free from delays or degradation;
be compatible with every device, application or third-party service; or
remain unaffected by maintenance, upgrades, hardware failures, software failures, network failures or circumstances outside Cyber Geek’s reasonable control.
The Services are provided on an “as is” and “as available” basis to the maximum extent permitted by applicable law.
4. Hosting and Email Outages
The Client acknowledges that temporary interruptions may occur in connection with web hosting, email, DNS, databases, servers, networks and other internet-based services.
To the maximum extent permitted by applicable law, Cyber Geek will not be liable for any loss or damage arising from an interruption, outage, degradation, delay or unavailability caused by circumstances outside Cyber Geek’s reasonable control, including:
an outage or failure affecting xneelo or another hosting provider;
server or data centre failures;
hardware or software failures;
scheduled or emergency maintenance;
network or connectivity failures;
upstream provider failures;
DNS failures or propagation;
internet routing problems;
electricity failures;
distributed denial-of-service attacks or other cyberattacks;
failures of third-party email systems;
failures of Microsoft Outlook, Microsoft 365, Apple Mail, Gmail or other third-party software or platforms;
domain registry or registrar failures;
telecommunications failures; or
any other third-party service upon which the Services depend.
Cyber Geek will use reasonable efforts to assist with diagnosis, escalation and restoration where reasonably possible but does not warrant a specific restoration time unless a separate written Service Level Agreement expressly provides otherwise.
5. Email Delivery
Cyber Geek does not guarantee the delivery, transmission time or receipt of any email.
Email delivery depends upon numerous systems outside Cyber Geek’s control, including the sender’s and recipient’s mail servers, spam filtering systems, DNS, internet connectivity, reputation systems and third-party email applications.
Cyber Geek will therefore not be responsible for an email being delayed, rejected, quarantined, incorrectly classified as spam or otherwise not received where the cause is outside Cyber Geek’s reasonable control.
Clients should not rely upon ordinary email as the sole means of communicating information where failure or delay in delivery could result in significant financial, contractual, legal or operational consequences.
6. Client Backups
Unless Cyber Geek has expressly agreed in writing to provide a managed backup service, the Client remains responsible for maintaining independent and current backups of all important websites, databases, email, files and other data.
Any backup functionality supplied as part of a hosting service is intended as an additional recovery measure and must not be regarded as the Client’s sole backup.
Cyber Geek does not warrant that any particular backup will always be available, complete, current or capable of successful restoration.
7. Third-Party Services
Cyber Geek may supply, configure, recommend, resell or facilitate access to services supplied by third parties.
Cyber Geek cannot control the availability, functionality, security, pricing, policies or continued operation of those third-party services.
To the maximum extent permitted by applicable law, Cyber Geek will not be liable for loss or damage resulting from the failure, interruption, modification or discontinuation of a third-party service.
8. Exclusion of Consequential Loss
To the maximum extent permitted by applicable law, Cyber Geek will not be liable for any indirect, incidental, special or consequential loss or damage arising from or relating to the Services.
This includes, without limitation:
loss of profits;
loss of revenue;
loss of sales;
loss of anticipated savings;
loss of business opportunities;
loss of contracts;
loss of customers;
loss of goodwill;
loss caused by delayed or undelivered email;
loss resulting from website or email downtime; and
business interruption.
This limitation applies whether the claim arises in contract, delict (including negligence) or otherwise, except to the extent that such liability cannot lawfully be excluded.
9. Limitation of Liability
To the maximum extent permitted by applicable law, Cyber Geek’s aggregate liability for direct damages arising from the Services will be limited to the lesser of:
(a) the hosting and/or email service fees actually paid by the Client to Cyber Geek for the three months immediately preceding the event giving rise to the claim; or
(b) R2,500.00.
This limitation applies to all claims arising from the same event or series of related events collectively and not separately to each individual claim.
Nothing in these Terms excludes or limits liability which may not lawfully be excluded or limited under South African law.
10. Client Indemnity
To the maximum extent permitted by applicable law, the Client indemnifies and holds Cyber Geek harmless against claims, losses, liabilities, damages, costs and expenses arising from:
the Client’s unlawful or unauthorised use of the Services;
content uploaded, transmitted or hosted by the Client;
infringement of third-party intellectual property rights by the Client;
spam, malware or other prohibited activity originating from the Client’s account;
inaccurate or unauthorised instructions supplied to Cyber Geek;
compromised passwords or credentials resulting from the Client’s acts or omissions;
the Client’s failure to maintain appropriate independent backups;
the Client’s breach of these Terms or an applicable third-party acceptable use policy; or
claims by third parties resulting from the Client’s use of the Services,
except to the extent that the claim or loss was caused by conduct for which Cyber Geek may not lawfully exclude responsibility.
11. Force Majeure
Cyber Geek will not be responsible for a failure or delay in performing its obligations where the failure or delay results from circumstances beyond Cyber Geek’s reasonable control.
These circumstances may include natural disasters, fire, flood, extreme weather, war, civil unrest, industrial action, government action, load shedding or electricity failure, telecommunications failure, internet failure, cyberattacks, data centre failures, failures of third-party suppliers, infrastructure failures and other events which Cyber Geek could not reasonably prevent.
Cyber Geek will use reasonable efforts to resume the affected Services when reasonably possible.
12. Maintenance and Technical Changes
Cyber Geek and its underlying service providers may perform scheduled or emergency maintenance, upgrades, migrations, repairs, security changes or other technical work which may temporarily affect the Services.
Where reasonably practicable and where Cyber Geek receives sufficient advance notice from the underlying provider, Cyber Geek may communicate significant planned interruptions to affected Clients.
Emergency maintenance may be performed without advance notice where necessary to protect security, stability or availability.
13. Security
Cyber Geek will take reasonable measures within the scope of the Services it controls to protect systems and Client information.
No internet-connected system can, however, be guaranteed to be completely secure.
The Client is responsible for protecting usernames, passwords and other credentials supplied to it and for promptly notifying Cyber Geek if it suspects that credentials or systems have been compromised.
14. Client Responsibilities
The Client is responsible for:
providing Cyber Geek with accurate information;
maintaining current contact and billing details;
keeping credentials secure;
using the Services lawfully;
complying with applicable acceptable use policies;
maintaining independent backups where appropriate;
ensuring its devices and software are properly configured and maintained;
renewing Services and paying invoices when due; and
promptly reporting suspected technical or security problems.
15. Suspension
Cyber Geek may suspend or restrict a Service where reasonably necessary because of:
non-payment;
security threats;
abuse of the Service;
spam or malware;
unlawful activity;
excessive resource consumption;
breach of these Terms;
breach of an underlying provider’s acceptable use policy;
an instruction or restriction imposed by an underlying service provider; or
circumstances where continued operation may negatively affect Cyber Geek, the underlying provider or other users.
Where reasonably possible, Cyber Geek will give the Client an opportunity to remedy the issue before suspension unless immediate action is reasonably necessary.
16. Domain Names
Where Cyber Geek facilitates domain registration or management on behalf of a Client, the domain should be registered in the name of the Client or other lawful registrant nominated by the Client.
Domain registrations and renewals are subject to the rules and policies of the applicable registry and registrar.
Cyber Geek cannot guarantee the registration, renewal, transfer or continued availability of any particular domain name where the matter depends upon a third-party registrar or registry.
The Client remains responsible for ensuring that renewal fees are paid when due and that its registrant information is accurate.
17. Support
Cyber Geek provides first-line support to Clients for Services resold or managed by Cyber Geek.
Where an issue relates to infrastructure or systems controlled by an underlying provider, Cyber Geek may be required to escalate the matter to that provider.
The Client acknowledges that Cyber Geek cannot guarantee the response or resolution time of an underlying provider unless a specific Service Level Agreement has expressly been agreed in writing.
18. No Admission of Liability
Any assistance, service credit, refund, technical intervention, communication regarding an outage, or attempt by Cyber Geek to resolve a problem will not by itself constitute an admission of fault or liability.
19. Fees During Service Interruptions
A temporary interruption or degradation of a Service does not automatically entitle the Client to withhold payment, reverse charges, deduct amounts from invoices or claim compensation.
Any refund or service credit will be determined in accordance with the applicable service terms, any written Service Level Agreement and applicable law.
20. Changes to Services and Terms
Cyber Geek may amend these Terms from time to time, including where amendments are required because of changes to legislation, technology, security requirements, underlying suppliers or the services offered by Cyber Geek.
The current version will be published on the Cyber Geek website together with its effective date.
Where required by applicable law, Clients will be given appropriate notice of material changes.
21. Consumer Protection
Nothing in these Terms is intended to waive, restrict or exclude any right or remedy that may not lawfully be waived, restricted or excluded under the Consumer Protection Act 68 of 2008 or any other applicable South African law.
Where any provision of these Terms conflicts with a mandatory provision of applicable law, the mandatory provision will prevail and the remaining provisions will continue to apply to the extent permitted by law.
22. Governing Law
These Terms and the provision of the Services are governed by the laws of the Republic of South Africa.
23. Acceptance
By ordering, renewing, paying for or continuing to use Cyber Geek’s hosting, email or related Services after being provided with these Terms, the Client acknowledges that they have had a reasonable opportunity to read and understand them and agrees to be bound by them, subject always to applicable South African law.
Cyber Geek Web Host Pty Ltd