TERMS OF SERVICE & ACCEPTABLE USE POLICY (AUP)

OPERATIONAL INFRASTRUCTURE POLICY FOR: SCEARP ITC (PTY) LTD, ITS SUBSIDIARIES, AND DIVISIONS

  • Document Version: 1.2
  • Effective Date: 01 June 2026
  • Supersedes: All previous Terms of Service, Conditions of Use, and Acceptable Use Policies.

 

  1. PREAMBLE AND LEGAL BINDING EFFECT

1.1 Legal Contract: This Agreement constitutes a lawful, binding, and enforceable contract between Scearp ITC (Pty) Ltd (Registration Number: 2017/022912/07) (hereinafter referred to as “the Company”) and any person, natural or juristic, accessing this website or utilizing any hosting, domain, connectivity, or digital development services (hereinafter referred to as “the Client”).

1.2 Deemed Acceptance: By checking an online consent box, signing or accepting a service quotation, paying any invoice issued by the Company, confirming via electronic communication (including WhatsApp or Email), or allowing a domain or network traffic to route to the Company’s servers, the Client acknowledges that they have read, understood, and unconditionally agree to be bound by these Terms of Service and Acceptable Use Policy.

1.3 Precedence: These Terms shall take absolute precedence over any conflicting terms or conditions contained in any procurement documentation, purchase orders, or agreements issued by the Client.

 

  1. EXCLUSION OF LIABILITY AND INDEMNITY (THE INDUSTRIAL SHIELD CLAUSE)

⚠️ IMPORTANT NOTICE IN TERMS OF SECTION 49 OF THE CONSUMER PROTECTION ACT 68 OF 2008:
THE CLIENT’S ATTENTION IS SPECIFICALLY DRAWN TO THIS SECTION WHICH LIMITS THE OPERATIONAL AND LEGAL LIABILITY OF THE COMPANY. THE CLIENT ASSUMES ALL OPERATIONAL RISKS ASSOCIATED WITH DIGITAL HOSTING AND SERVICES.

2.1 “As Is” Infrastructure: The Company provides all network infrastructure, server space, shared hosting, Virtual Private Servers (VPS), dedicated hosting environments, and connectivity “as is” and “as available”. The Company makes no representations and gives no warranties or guarantees of any kind, express or implied, regarding the continuous uptime, availability, speed, security, or error-free nature of the services.

2.2 Total Exclusion of Liability: To the maximum extent permitted by applicable South African law, the Company, its directors, employees, contractors, agents, and upstream infrastructure providers shall under no circumstances whatsoever be held liable to the Client or any third party for any direct, indirect, incidental, special, punitive, or consequential losses, damages, or liabilities.

2.3 Specific Scope of Exclusions: The exclusion in clause 2.2 applies strictly and without limitation to all forms of loss, including but not limited to:

    • Total or partial loss of data, database corruption, or deletion of email archives.
    • Server crashes, hardware failures, fibre optic interruptions, network downtime, upstream carrier failures, or power grid failures (including Eskom load-shedding, electricity variations, and surges).
    • Loss of business profits, operational revenue, commercial opportunity, contract loss, goodwill, or operational data.
    • Malicious third-party interventions, hacking, ransomware deployment, phishing schemes, malware deployment, or security breaches on the Client’s digital properties.

2.4 Third-Party Indemnity: The Client hereby indemnifies and holds harmless the Company against any and all claims, actions, suits, liabilities, costs, losses, and legal expenses (calculated on an attorney-and-own-client scale) arising from third-party actions relating to the Client’s website content, e-commerce transactions, spam transmission, or email distribution.

2.5 Financial Liability Cap: In the event that a competent court or arbitrator finds the Company legally liable for any failure despite the clauses above, the Company’s maximum aggregate financial liability to the Client for any single event or series of connected events shall be strictly capped at an amount equal to the total monthly hosting fee actually paid by the Client to the Company for that specific single month immediately preceding the cause of action.

 

  1. COMPULSORY BACKUP AND DATA MAINTENANCE OBLIGATIONS

3.1 Primary Responsibility: The Client explicitly acknowledges and agrees that the Company is not a data archivist, backup service provider, or insurance facility. The maintenance of up-to-date, secure, and redundant local backups of all website files, operational databases, configuration settings, and historical email mailboxes remains the sole, absolute, and primary responsibility of the Client.

3.2 Internal Snapshots: Any automated server-side backups conducted by the Company are executed purely for internal operational disaster recovery, system stability, and structural preservation profiles. The Company offers no warranty, representation, or guarantee regarding the reliability, completeness, accessibility, or validity of these internal backups.

3.3 Off-Site Obligation: The Client is legally obligated to extract and maintain independent off-site backups weekly. The Client waives all recourse against the Company in the event that an internal server-side snapshot is corrupted, incomplete, or unavailable during a data restoration attempt.

 

  1. SERVICE CANCELLATION AND TERMINATION POLICY

4.1 Calendar Month Notice Requirement: Either party may terminate a recurring service by giving the other party a full calendar month’s written notice.

4.2 Definition and Operational Examples: A calendar month’s notice means that termination only takes effect on the final calendar day of the month following the month in which notice was received. Notice cannot run from mid-month to mid-month.

    • Example 1: If the Client submits a cancellation notice on the 3rd of July, the notice period runs for the full calendar month of August. The service terminates, and data is removed, on the 31st of August.
    • Example 2: If the Client submits a cancellation notice on the 28th of July, the notice period runs for the full calendar month of August. The service terminates, and data is removed, on the 31st of August.

4.3 Payment Obligations During Notice: Because services are billed strictly in advance, the Client remains legally obligated to pay the standard monthly service fees for the duration of the notice period. In both operational examples above, the invoice generated for August remains due, payable, and non-refundable.

4.4 Post-Termination Data Purge: On the final effective day of the cancellation period, the Company will systematically and permanently remove the Client’s files, databases, and emails from all active production servers. The Company accepts zero liability for any data destruction resulting from a completed service cancellation.

 

  1. ACCEPTABLE USE POLICY (AUP) & SYSTEM ABUSE RULES

The Client agrees to use the Company’s network and servers strictly for lawful purposes. Violation of this section results in immediate account suspension or termination without notice.

5.1 Prohibited Content: The Client shall not host, upload, or transmit any content that:

    • Infringes on third-party intellectual property, copyrights, trademarks, or patents.
    • Contains or links to child pornography, bestiality, or non-consensual sexual content.
    • Constitutes hate speech, incitement to violence, or defamatory material under South African law.
    • Promotes or facilitates illegal gambling, pyramid schemes, or fraudulent activities.

5.2 System Resource Abuse (Shared Environments): The Client shall not operate scripts, bots, or applications that consume an unfair or excessive share of server resources (CPU, RAM, or I/O). This includes running background processes, continuous scraping, or using shared hosting environments for high-volume file storage or video streaming distribution.

5.3 Zero-Tolerance Spam Policy:

    • The transmission of unsolicited bulk email (SPAM) via the Company’s servers is strictly prohibited.
    • Mailboxes may not be used to send out marketing blasts unless the Client utilizes a dedicated, approved mailing platform.
    • The Company reserves the right to immediately block port 25 or suspend mail services if a Client’s domain causes the Company’s IP ranges to be blacklisted by international mail authorities.

5.4 Security and Network Integrity: The Client must secure all web applications (e.g., maintaining updated WordPress core, themes, and plugins). The Client shall not use the network to conduct port scans, brute-force attacks, Denial of Service (DoS) attacks, or attempt unauthorized access to other server nodes.

 

  1. PRIVACY AND DATA PROTECTION (POPIA COMPLIANCE)

6.1 Scope of Processing: To the extent that the Company processes Personal Information on behalf of the Client while providing hosting, email, or digital services, the parties acknowledge that the Client is the Responsible Party and the Company is the Operator as defined in the Protection of Personal Information Act, 4 of 2013 (POPIA).

6.2 Operator Undertakings: The Company undertakes to:

    • Process Personal Information only with the knowledge or authorization of the Client.
    • Treat Personal Information which comes to its knowledge as confidential and not disclose it unless required by law.
    • Secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate, reasonable technical and organizational measures to prevent loss, damage, or unauthorized destruction.

6.3 Breach Notification: The Company will notify the Client immediately where there are reasonable grounds to believe that the Personal Information of a data subject has been accessed or acquired by an unauthorized person.

 

  1. FINANCIAL TERMS, SUSPENSION, AND PURGE CLAUSES

7.1 Advanced Billing: All recurring hosting, server, and support services are billed strictly in advance on a monthly calendar cycle. Payments must be cleared into the Company’s bank account by the 1st business day of each billing month via automated debit order or electronic funds transfer (EFT).

7.2 Electronic Communications Consent: The Client explicitly consents to receiving all official communication, statements of account, collection alerts, and computer-generated tax invoices via electronic mail. It is the Client’s continuous duty to ensure the billing email address on record with the Company is active and monitored.

7.3 Arrears and Suspension: Accounts remaining unpaid on the 5th calendar day following the invoice due date will be automatically suspended by the system network management software. Access to email, websites, and server interfaces will be blocked. A non-negotiable reconnection fee of R250.00 will apply to lift the suspension.

7.4 The 30-Day Permanent Purge: Accounts remaining unpaid for 30 calendar days will be permanently terminated from the network infrastructure. All stored data, database records, email archives, and website files will be automatically, systematically, and irreversibly purged and deleted from live servers and primary storage. The Company accepts zero liability for data lost under this clause.

7.5 Emergency Data Recovery Surcharge: If a Client suffers data loss due to their own operational error, negligence, compromised access credentials, or accidental deletion, and requests data retrieval assistance from the Company’s internal disaster recovery archives, an Emergency Data Recovery Fee of R2,500.00 per incident shall be billed. This fee must be paid and cleared upfront before any recovery operation is initiated. The Company makes no representation or guarantee that the data can be successfully recovered or that the recovery snapshot will be free from loss or corruption.

 

  1. STATUTORY TAKE-DOWN NOTICES (ECTA COMPLIANCE)

8.1 Section 77 Compliance: The Company operates in strict compliance with Section 77 of the Electronic Communications and Transactions Act, 25 of 2002 (ECTA).

8.2 Take-Down Exemption: The Client agrees that the Company will comply fully with all lawful Take-Down Notices received via designated industry regulatory bodies (such as the Internet Service Providers’ Association – ISPA). The Company shall bear no liability whatsoever to the Client for pulling down content, modifying DNS configurations, or suspending pages/sites executed under such notices.

 

  1. BREACH, JURISDICTION, AND GENERAL CONTRACTUAL TERMS

9.1 Immediate Termination: In the event of a breach of the Acceptable Use Policy (Section 5), the Company reserves the right to terminate this contract and all services immediately without notice and without refund for prepaid services.

9.2 Legal Costs: In the event that the Company is forced to retain legal counsel to enforce any provision of this agreement, recover outstanding debts, or defend its rights against the Client, the Client shall be liable for all legal costs incurred by the Company calculated on an attorney-and-own-client scale.

9.3 Governing Law and Jurisdiction: This agreement is governed exclusively by the laws of the Republic of South Africa. Both parties consent to the jurisdiction of the Magistrate’s Court having jurisdiction over the area where the Company’s head office is situated, notwithstanding that the value of the claim may exceed the ordinary jurisdiction of such court.

9.4 Severability: If any provision of this agreement is found to be invalid, unlawful, or unenforceable by a competent court, such provision shall be severed from the remainder of the agreement, which shall continue to be valid and enforceable to the fullest extent permitted by law.

 

Version Control

Version: TOS 2.0
Effective Date: 01 June 2026
Legal Pages Archive: https://scearpcommunications.co.za/legal-pages-archive/