By ordering, installing, connecting or making use of DiaMatrix’s goods or services from our website www.domains.co.za, for the purposes of reselling, or by indicating your acceptance of these Reseller Terms in any other way, you agree to be bound by them.
Your attention is drawn in particular to clauses rendered in bold capitals in these Reseller Terms. What follows is a summary for your convenience and does not form part of the agreement between you and DiaMatrix. It is your responsibility to read the clauses referred to.
- You are responsible for your own actions and those of your customers using the services provided by DiaMatrix (clause 8.1).
- You are responsible for all hardware and software required to make use of the services provided by DiaMatrix unless otherwise agreed (clause 8.2).
- You agree to comply with DiaMatrix’s Acceptable Use Policy (clause 8.4).
- You warrant that you and your customer have the right to use any material transmitted, accessed, stored, displayed or reproduced using the service provided by DiaMatrix (clause 9).
- You consent to DiaMatrix monitoring your traffic data and will procure the same in respect of your customers for accounting purposes and to ensure that the DiaMatrix system is operating properly (clause 12.1).
- You consent to DiaMatrix using personal information that you provide to DiaMatrix only for the purpose of providing the service, and you warrant that if you provide a third party’s personal information to DiaMatrix you have the consent that third party (clause 12.1).
- As soon as equipment provided by DiaMatrix leaves DiaMatrix’s possession, risk passes to you (clause 15).
- If any equipment owned by DiaMatrix is located on premises you do not own, you must reimburse DiaMatrix if the landlord attaches the equipment as part of a rental dispute (clause 15)
- DiaMatrix will not be liable to you if you suffer loss as a result of your use or that of your customers of the services provided by DiaMatrix or which arises from the agreement between you and DiaMatrix (clause 16).
- You indemnify DiaMatrix against any claim made against DiaMatrix as a result of any unlawful act that you or your customer may commit, or your use, or your customer’s use, of the goods or services provided by DiaMatrix other than as allowed in these Reseller Terms (clause 17).
1.1. "DiaMatrix" is DiaMatrix cc also known as www.domains.co.za, a close corporation incorporated in terms of the company laws of the Republic of South Africa with registration number 2001/064910/23.
Address: 1 Zuid Street, Bagleyston, Johannesburg, South Africa, 2192
Telephone: 0861 100 698 /(+2711) 011-640-9700
Fax: 0866 862 444
Email: firstname.lastname@example.org/ email@example.com /firstname.lastname@example.org
1.2. "The Reseller” or "You" is the party described as such in these Reseller Terms.
The terms listed in the Standard Terms will have the same meaning in these Reseller Terms and in addition the following terms will have the following meanings in these Reseller Terms:
2.1. “Charges” means the rates to be paid by the Reseller for the Services as set out in the Charges Schedule of the Standard Terms.
2.2. “Client” means the customer of the Reseller.
2.3. “Fees” means the fees and / or charges due to DiaMatrix by the Reseller in respect of Goods or Services provided by DiaMatrix to the Reseller in terms of these Reseller Terms.
2.4. “Party” means either of DiaMatrix or the Reseller and “Parties” means both of them collectively. The term also includes their successors and anyone to whom their rights have been assigned (if this is permitted).
2.5. “Reseller” means You, as the party who has accepted these Reseller Terms.
2.6. "Reseller Equipment" means any equipment owned by the Reseller, including without limitation servers, peripherals, routers, switches, Software, Databases, data cables, hard drives and uninterruptible power supplies.
2.7. "Reseller System" means the Reseller Equipment and Software operated together by the Reseller as a system.
2.8. “Reseller Terms” means this written document, the terms of which You accept by ordering, installing, connecting or making use of DiaMatrix’s goods or services as a Reseller, or by indicating your acceptance of these Reseller Terms.
2.9. "Service" means a service provided by DiaMatrix to the Reseller in terms of these Reseller Terms.
2.10. “Service Terms” means a schedule describing the terms on which DiaMatrix will provide a particular Good or Service, as described in the Standard Terms.
2.11. "Standard Terms" or “DiaMatrix Standard Terms” means the document of that name that you have agreed to and entered into with DiaMatrix.
3. Introduction and How these Reseller Terms Work
3.1. DiaMatrix provides Services and the Reseller is able to market, promote and resell the Services provided by DiaMatrix.
3.2. This document together with the Standard Terms forms the Agreement between DiaMatrix and the Reseller with regard to the reselling of the Services.
3.3. The Standard Terms, as well as the Service Orders and Service Terms relevant to the resold Services concerned, are incorporated into these Reseller Terms by reference. Unless this document states otherwise, it will be subject to the Standard Terms, including the definitions and rules of interpretation contained in them.
3.4. If there is any conflict between any of these documents, they will be interpreted in order of precedence as follows: this document (Reseller Terms) and then the Standard Terms, unless otherwise expressly stated in writing.
4. Appointment and Term
4.1. DiaMatrix appoints the Reseller and the Reseller accepts the appointment to promote, market, and resell the Services, on the terms and conditions of these Reseller Terms.
4.2. These Reseller Terms will commence on their acceptance by the Reseller, will operate on a month-to-month basis, and will terminate on one calendar months’ written notice by the Reseller to DiaMatrix. Cancellations by the Reseller must be confirmed by DiaMatrix to have effect.
4.3. Upon cancellation of the reseller package all products, subscriptions and / or services that have been discounted to Reseller pricing will be amended back to full retail pricing.
5.1. The Reseller:
5.1.1. may generally promote, market and resell the Services for the purpose of facilitating the provision of the Services to its Clients;
5.1.2. will have a non-exclusive right to resell the Services, and DiaMatrix will be entitled to appoint other resellers. DiaMatrix may also itself market the Services and other related services or products; and
5.1.3. hereby agrees that, and must procure that it agrees in writing with its Clients that its Clients:
188.8.131.52. enter into a separate agreement with the Reseller with regards to the resale of the Services by the Reseller to its Clients;
184.108.40.206. are bound in such aforementioned separate agreement by terms no less onerous that the Standard Terms with regards to the Services;
220.127.116.11. may not in turn resell any Service, or otherwise provide any Service to a third party for consideration without the written consent of DiaMatrix; and
18.104.22.168. have in no way contracted with or entered into any agreement with DiaMatrix, and accordingly will not have any recourse against DiaMatrix for any reason whatsoever, including but not limited to any claim for damages.
6. Fees and Payment
6.1. The Reseller will be liable for and will pay the Fees in respect of Services supplied in terms of these Reseller Terms on the basis set out in the preferential pricing applicable to the relevant Service Orders, without deduction or set-off.
6.2. The further provisions of the Standard Terms regarding payment will apply to these Reseller Terms as well.
6.3. As a reseller of the Services, the Reseller will qualify for preferential rates in respect of the Fees for the Services, subject to the provisions of this clause 6.
6.4. In order for the Reseller to qualify for the preferential rates described in clause 6.3 during a particular calendar month, the Reseller must accrue a Fee balance in respect of resold Services of no less than R1000.00 (one thousand rand) during that calendar month (the “Minimum Amount”).
6.4.1. Should the Reseller meet this Minimum Amount, the preferential rates set out in clause 6.3 will be applied to the Fees accrued for the calendar month in question.
6.4.2. Should the Reseller fail to meet this Minimum Amount, DiaMatrix will generate an invoice for the shortfall between the minimum amount and the total amount of allowed invoices for services that fall within the Reseller program as set out in clause 6.4.
6.4.3. Should the Reseller require DiaMatrix to provide technical or any other services not included is fees, this will be covered by our Professional Services Department at additional costs
6.5. All other provisions relating to payment of Fees to DiaMatrix as set out in the Standard Terms will apply to these Reseller Terms.
6.6. For the avoidance of doubt, it is hereby recorded and acknowledged that if the Reseller’s Client fails to make any payment to the Reseller, the Reseller will nevertheless still be liable to make payment to DiaMatrix for the Services.
7. Applicable Services
7.1. All Services provided by DiaMatrix to the Reseller in terms of these Reseller Terms will be provided subject to the Service Order and Service Terms applicable to the Service in question.
7.2. DiaMatrix will not resell any domain name services in terms of these Reseller Terms and conditions, including domain name registration or renewals. Should these Services be resold, the resale will be subject to separate terms and conditions.
8. Use of Services
8.1. THE RESELLER ACCEPTS THAT IT IS RESPONSIBLE FOR ALL OF THE CONSEQUENCES OF ITS CUSTOMERS’ ACTIVITIES AND THOSE OF ITS EMPLOYEES, OFFICERS, AGENTS, INDEPENDENT CONTRACTORS AND ALL OTHERS UNDER ITS CONTROL WHEN USING THE SERVICES.
8.2. THE RESELLER IS RESPONSIBLE FOR OBTAINING, INSTALLING AND MAINTAINING ALL HARDWARE AND SOFTWARE REQUIRED FOR ITS CUSTOMERS TO ACCESS THE DIAMATRIX SYSTEM AND MAKE USE OF THE SERVICES, UNLESS OTHERWISE AGREED IN WRITING.
8.3. The Reseller must procure that its Clients make use of the Services in a considerate and lawful way, and advise its Clients that DiaMatrix has developed an Acceptable Use Policy that contains reasonable rules of conduct for the use of the Service. The Acceptable Use Policy, as amended, is available for viewing on the DiaMatrix Website.
8.4. THE RESELLER MUST PROCURE THAT ITS CLIENTS COMPLY WITH THE ACCEPTABLE USE POLICY AND ENSURE THAT ANYONE UNDER ITS CONTROL THAT USES THE SERVICES ALSO DOES SO. A BREACH OF THE ACCEPTABLE USE POLICY IS A BREACH OF THE RESELLER’S DUTY TO ACT IN A CONSIDERATE AND LAWFUL WAY.
8.5. The Reseller’s Clients’ use of the Services will be governed by the same terms as are applicable to the Reseller in terms of the Standard Terms.
9. Intellectual Property
9.1. The provisions of the Standard Terms that apply to the Reseller will in turn apply to the Clients.
10.1. The measures implemented by DiaMatrix with respect to security that are applicable to the Reseller as provided for in the Standard Terms will in turn and mutatis mutandis apply to the Reseller’s Clients; the Reseller must accordingly advise its Clients and, the Reseller must contractually bind such Clients to equivalent terms regarding security as are set out therein and procure that such Clients in turn do so as required.
11. Suspension of Service
11.1. DiaMatrix is entitled to suspend provision of the Service to the Reseller as provided for in the Standard Terms and accordingly the Reseller must advise its Clients of such provisions and that same will apply to them.
12. Data & Content
12.1. The Reseller must advise its Clients of the provisions of the Standard Terms relating to data and content that are applicable to the Reseller, and that same will in turn be applicable to the Reseller’s Clients with the necessary amendments for context.
13. Statutory Compliance
13.1. The Reseller must advise its Clients of the obligations of DiaMatrix to comply with certain statutory provisions as provided for in the Standard Terms, and that same will in turn and mutatis mutandis apply to the Reseller’s Clients; the Reseller must accordingly advise its Clients and, the Reseller must contractually bind such Clients to equivalent terms.
14. Loss of License
14.1. The Reseller must advise it’s Clients of the implications of the loss of licence and related provisions as set out in the Standard Terms and the implications thereof which will in turn and mutatis mutandis apply to the Reseller’s Clients, with the changes necessary for the context.
15. Risk and Ownership in Equipment & Use and Maintenance of Equipment
15.1. The Reseller must advise its Clients of the provisions of the Standard Terms that relate to Risk and Ownership in Equipment & Use and Maintenance of Equipment, and that same will in turn and mutatis mutandis apply to the Reseller’s Clients, with the changes necessary for the context.
16. LIMITATION OF LIABILITY
16.1. DIAMATRIX WILL NOT BE LIABLE TO THE RESELLER OR ITS CUSTOMERS OR ANY THIRD PARTY FOR ANY LOSS THAT RELATES TO OR ARISES FROM THE SERVICES OR THESE RESELLER TERMS, WHETHER EITHER PARTY SHOULD HAVE FORESEEN IT OR NOT. LOSS INCLUDES DAMAGES AND LEGAL OR OTHER COSTS. DIRECT DAMAGES ARE EXCLUDED, AS ARE INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, AND DIAMATRIX WILL NOT BE LIABLE WHETHER THE LOSS WAS THE RESULT OF THE ACT OR OMISSION OF A DIAMATRIX EMPLOYEE, BREACH OF CONTRACT, VICARIOUS OR STRICT LIABILITY.
16.2. IN PARTICULAR, DIAMATRIX WILL NOT BE LIABLE FOR LOSS ARISING FROM ANY OF THE FOLLOWING:
16.2.1. TERMINATION OF THE AGREEMENT OR THESE RESELLER TERMS BEFORE COMMENCEMENT OF A SERVICE, DUE TO TECHNICAL INFEASIBILITY;
16.2.2. THE RESELLER’S OR THE RESELLER’S CUSTOMERS FAILURE TO TAKE ADEQUATE SECURITY MEASURES;
16.2.3. ANY ACT OR OMISSION RELATING TO THE TRANSMISSION OF DATA TO AND FROM THE DIAMATRIX SYSTEM, ITS STORAGE ON THE DIAMATRIX SYSTEM OR ITS PUBLICATION USING THE DIAMATRIX SYSTEM TO THIRD PARTIES, INCLUDING FALSE POSITIVES IN SPAM FILTERING;
16.2.4. ANY ACTION TAKEN BY DIAMATRIX IN TERMS OF CLAUSE 10 (SECURITY) OR CLAUSE 11.1 (SUSPENSION OF SERVICE);
16.2.5. COMPLIANCE WITH ANY STATUTE DESCRIBED IN CLAUSE 13 (STATUTORY COMPLIANCE);
16.2.6. THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES THROUGH NO FAULT OF DIAMATRIX;
16.2.7. LOSS OF DATA (INCLUDING FAILURE IN BACKUP OR DISASTER RECOVERY), DAMAGED OR CORRUPTED DATA OR A DELAY OR FAILURE IN TRANSMISSIONS; AND/OR
16.2.8. RESELLER’S BREACH OF THESE RESELLER TERMS OR THE STANDARD TERMS OR OTHER UNLAWFUL ACT OR OMISSION.
16.3. IF DIAMATRIX IS NONETHELESS FOUND TO BE LIABLE FOR LOSS SUFFERED BY THE RESELLER AND / OR THE RESELLER’S CUSTOMER, THE TOTAL AMOUNT OF DIAMATRIX’S LIABILITY RELATING TO OR ARISING FROM THE SERVICES OR THESE RESELLER TERMS WILL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY THE RESELLER FOR THE SERVICE FROM WHICH THE DAMAGE AROSE IN THE 3 (THREE) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE.
16.4. NOTHING CONTAINED IN THIS CLAUSE 16 WILL LIMIT THE RESELLER’S LIABILITY IN RESPECT OF CHARGES INCURRED FOR ONGOING SERVICES.
16.5. If the CPA is applicable to these Reseller Terms, and any provision of this clause 16 is found by a court or tribunal with jurisdiction over DiaMatrix to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 16 will have full force and effect.
16.6. In the case of ambiguity, this clause 16 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in these Reseller Terms.
17.1. THE RESELLER WILL INDEMNIFY, DEFEND, AND HOLD DIAMATRIX HARMLESS FROM ALL CLAIMS BROUGHT AGAINST DIAMATRIX BY THE RESELLER OR THE RESELLER’S CUSTOMERS OR ANY THIRD PARTIES AS A RESULT OF:
17.1.1. THE USE OF THE GOODS OR SERVICES BY THE RESELLER OR THE RESELLER’S CUSTOMERS OTHER THAN AS ALLOWED IN THE STANDARD TERMS OR ACCEPTABLE USE POLICY;
17.1.2. BREACH OF PRIVACY RIGHTS, OR INFRINGEMENT OF ANY LAW (WHETHER SOUTH AFRICAN OR FOREIGN) GOVERNING DATA PROTECTION OR THE CROSS-BORDER DATA FLOWS BY THE RESELLER OR THE RESELLER’S CLIENT;
17.1.3. THE INFRINGEMENT OF ANY RIGHT IN INTELLECTUAL PROPERTY BY THE RESELLER OR THE RESELLER’S CUSTOMER, INCLUDING WITHOUT LIMITATION THOSE SET OUT IN THE THESE RESELLER TERMS OR THE STANDARD TERMS; OR
17.1.4. ANY OTHER WRONGFUL ACT OR OMISSION BY THE RESELLER OR THE RESELLER’S CLIENT.
17.2. THE INDEMNIFIED CLAIMS WILL INCLUDE LEGAL COSTS ON THE SCALE AS BETWEEN ATTORNEY AND OWN CLIENT AND ANY ADDITIONAL LEGAL COSTS.
17.3. If the CPA is applicable to these Reseller Terms, and any provision of this clause 17 is found by a court or tribunal with jurisdiction over DiaMatrix to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of this clause 17 will have full force and effect.
18.1. The warranties set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
19. Assignment, Subcontracting and Reselling
19.1. Neither Party will be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of these Reseller Terms without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed.
19.2. DiaMatrix may sub-contract its obligations in terms of these Reseller Terms to a third party, provided that:
19.2.1. such sub-contracting will not absolve DiaMatrix from responsibility for the provision of the Service or complying with its obligations in terms of these Reseller Terms; and
19.2.2. DiaMatrix will at all times remain the sole point of contact for the Reseller.
20. Relationship between the Parties
20.1. The provisions relating to the relationship between the Parties as set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
21. No Solicitation
21.1. The non-solicitation provisions as set out in the Standard Terms will mutatis mutandis, and with the changes necessary for context, apply to these Reseller Terms.
22. Application of the Consumer Protection Act
22.1. The application of the CPA as provided for the in the Standard Terms will apply in the same way, with the changes as necessary for context
23. Breach and Termination
23.1. The provisions applicable to breach and termination as provided for in the Standard Terms will in the same way apply to these Reseller Terms.
24.1. The Parties choose their addresses where they will accept service of any notices/documents for all purposes arising from this Agreement (domicilium citandi et executandi) as provided for in the Standard Terms.
24.2. The provisions applicable to notices as provided for in the Standard Terms will in the same way apply to these Reseller Terms.
25.1. In the event of any dispute arising between the Parties regarding these Reseller Terms, the provisions applicable to disputes provided for in the Standard Terms will in the same way apply to these Reseller Terms.
26. Force Majeure
26.1. The provisions applicable to delay or failure in performing any obligation under these Reseller Terms, as provided for in the Standard Terms as “Force Majeure” will in the same way apply to these Reseller Terms.
27. Interpretation and General
27.1. The provisions applicable to interpretation, and the general provisions in the Standard terms will in the same way apply to these Reseller Terms.