Service Terms for Hosting Services

SERVICE TERMS FOR HOSTING SERVICES

These Service Terms apply to all Service Orders accepted by Customer for the provision of Hosting Services, and/or which incorporate these Service Terms by reference.

These Service Terms are subject to Silicon Sky’s Terms and Conditions, as updated and amended from time to time, including the definitions and rules of interpretation contained therein, which Terms and Conditions are incorporated in these Service Terms by this reference.

By signing and/or otherwise accepting a Service Order for Hosting Services and/or accessing and/or using any Hosting Services Customer explicitly acknowledges that it has read and understood these Service Terms and agrees to be bound by them.

  1. DEFINITIONS

The following terms shall have the meanings assigned to them hereunder.

  • AUP – the Acceptable Use Policy of Silicon Sky, as updated and amended from time to time, describing the obligations associated with the use of the Hosting Services and prohibiting certain types of activity such as hacking, spamming, downloading and hosting of illegal content, the most recent version of which can be found at https://www.siliconsky.co.za/aup.
  • Availability – a Monthly Availability Percentage of 99.95% for Cloud Servers, 99.95% for Virtual Data Centres, 99.95% for Dedicated Virtual Data Centres, 99.9% for Shared Firewall Service, 99.9% for Internet Connectivity, 99.0% for Cloud Backup Storage, 99.0% for Cloud Storage, 99.99% for power availability for Co-located Rack Space. No availability Percentage for non-redundant dedicated infrastructure. Dedicated Infrastructure is based on bespoke configurations and is dependent on a redundant solution design. In the event of customer managing Dedicated Infrastructure no uptime Availability percentage is applicable. Availability percentage for on-premises Dedicated Infrastructure is dependent on the facility where it is hosted and thus cannot be guaranteed.
  • Dedicated Infrastructure – the infrastructure that is dedicated to Customer on-premises or off-premises (Hosted), as listed in the Service Order, which remains the property of Silicon Sky. Dedicated infrastructure may include, servers, storage, switches and/or firewalls.
  • Downtime – is determined by Silicon Sky and is the time during which the System is not capable of being accessed or used by Customer for reasons other than its own or that of its users. Downtime does not include: (i) service unavailability caused by maintenance of the System; (ii) Service unavailability caused by events outside the reasonable control of Silicon Sky or its subcontractors, service providers or suppliers and includes without limitation the failure or unavailability of Customer’s facilities or systems such as internet connectivity, any other service or third-party used by Customer to use, connect to, or access the Hosting Service; (iv) any failure by Customer to comply with Silicon Sky’s reasonable instructions in relation to the Hosting Service;  and/or (v) compliance with applicable laws or requests of governmental entities.
  • Emergency Works – works, the execution of which, at the time it is proposed to execute them, is required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided or generated by a third party; (iii) substantial loss to Silicon Sky or any third party; (iv) a violation of applicable laws; and such other works as Silicon Sky deems appropriate in the circumstances, acting reasonably, for the preservation of the Hosting Services.
  • Hosting Services – the Services to be provided by Silicon Sky to Customer as set out in these Service Terms and the Service Order. The Hosting Services may be increased or reduced by agreement between the parties by way of new Service Orders from time to time except in the case of a Virtual Data Centre service where the Customer may increase or reduce services online without a Service Order and will be liable for the service based on consumption per month or part thereof.
  • Monthly Availability Percentage – the total number of minutes in an average month (being, 43,800 minutes) minus the number of minutes of Downtime, divided by the total number of minutes in an average month.
  • Support – unless otherwise specifically agreed in the Service Order, the Hosting Services includes the following support:
    • 30-minute response to services requests/tickets logged between 7am to 7pm Monday to Friday;
    • 2-hour response to services requests/tickets after hours logged between 7pm to 7am;
    • MACDs (move, add, change, de-install), which are available from 7am to 7pm; and
    • Restorations from backups, which are available from 7am to 7pm.
  1. RENEWAL AND TERMINATION

As provided for in the Terms and Conditions, each Service Order shall renew automatically, unless terminated by either party on 1 (one) clear calendar months’ notice prior to the expiry of the then-current period.

  1. FEES AND PAYMENT

Customer shall be liable for and shall pay Silicon Sky the fees and charges for any additional or excess storage capacity consumed, memory capacity consumed and excess backup storage capacity consumed. Any additional services or additional support agreed between the parties in respect of products not listed in the Service Order shall incur an additional charge at the fees for such services as set out in the Service Order or, if no such fees are set out therein, at Silicon Sky’s Applicable Hourly Rate from time to time. Such additional fees shall be invoiced monthly in arrears and are payable within 30 (thirty) days of date of invoice. Unless otherwise agreed, fees for Services provided for part of a month (including where Services are increased or reduced during the month in question), shall be invoiced on a pro rata basis the end of the month in which the Service commenced, and such invoices are payable within 30 (thirty) days of date of invoice.

  1. SERVICES
    • With effect from the Commencement Date, the Customer shall appoint and Silicon Sky shall render the Hosting Services including the Support, as described in the Service Order.
    • Unless otherwise stated in the Service Order, all Hosting Services shall be rendered from a primary location only, and shall specifically exclude:
      • on-site support;
      • application licensing;
      • application support;
      • off-site backups (i.e. backups at a secondary location); and
      • Replication / disaster recovery of services to a secondary location.
      • Firewall Management for Dedicated Firewalls as listed in the Service Order includes hardware monitoring, firmware updates when needed, firewall configuration management, firewall policy management and MACD’s as and when needed.
    • Silicon Sky may modify the Hosting Services (including, without limitation, modifications to the software and other elements of the System) at any time, without prior notice, provided the modification does not materially denigrate the functionality of the Hosting Services. Customer acknowledges and agrees that Silicon Sky may elect to host the System in a third-party data centre.
    • Customer agrees to comply with the acceptable use policies (from time to time) of the Silicon Sky data centre in which the System is hosted, which policies shall be made available to Customer upon request.
    • Cloud Backups are kept at the same location as Cloud Servers and Virtual Data Centres unless specified otherwise in the Service Order. Nothing contained in these Service Terms or a Service Order shall be construed as a representation that any backups of data implemented, by Silicon Sky, shall be successful or of any restoration times. Silicon Sky schedules backups to run once a day and after hours. Silicon Sky monitors backups daily and in the event of a backup job failing, Silicon Sky will endeavour to rectify the backup in the next backup job run. For the avoidance of doubt, in no event shall Silicon Sky be liable for any loss or destruction of Customer’s data of any nature whatsoever, and howsoever arising.
  • Cloud Backup retention period is set to 21 days unless specified otherwise in the Service Order. Customised retention are available however retentions longer than 21 days will incur excess backups storage costs, based on usage.
  • Backup Management for on premise or customer hosted servers default retention is set to 21 days unless specified otherwise on the Service Order. Nothing contained in these Service Terms or a Service Order shall be construed as a representation that any backups of data implemented, by Silicon Sky, shall be successful or of any restoration times. Silicon Sky schedules backups to run once a day and after hours. Silicon Sky monitors backups daily and in the event of a backup job failing, Silicon Sky will endeavour to rectify the backup in the next backup job run. For the avoidance of doubt, in no event shall Silicon Sky be liable for any loss or destruction of Customer’s data of any nature whatsoever, and howsoever arising
  • Backup Management for on premise or customer hosted servers includes a daily email report detailing servers backed up and the success or failure of the backup.
  • Backup Management for on premise or customer hosted servers includes backup software for virtual or physical servers as specified in the Service Order.
  • Cloud Server vCPU and vRAM is based on an allocated amount and invoiced accordingly.
  • Virtual Data Centres are based on an allocation of compute resources namely CPU vGhz, vRAM and vStorage unless otherwise specified and invoiced accordingly.
  • Cloud Server Storage and Cloud Storage are based on allocated capacity and invoiced accordingly.
  • Cloud Server is based on hard drives (10K) or solid state drives (SSD) as set out in the Service Order.
  • Cloud Storage is based on hard drives (7.2K, 10K, and 15K) or solid state drives (SSD) as set out in the Service Order.
  • Cold Standby Cloud Servers can be powered on for a maximum of 15 days per month.
  • Customer acknowledges and agrees that it remains their responsibility to periodically test Cloud Servers that are utilised as failover or disaster recovery servers. Silicon Sky will not be held responsible for out of date software, patches, application versions etc.
  • Dedicated Infrastructure compute, network and storage resources are set out in the Service Order. In the event of additional resources being required the relevant upgrades or additional Dedicated Infrastructure will need to be quoted and the Service Order updated upon acceptance by Customer.
  • Dedicated Infrastructure, infrastructure licensing namely VMware and/or Microsoft is set-out in the Service Order. In the event of additional licenses being required the relevant licenses will need to be quoted and the Service Order updated upon acceptance by Customer.
  • Dedicated Infrastructure Storage as a Service is based on allocated capacity with RAID 5 or 6 configured in the underlying storage system, with the minimum monthly commitment on allocated capacity as set out in the Service Order.
  • Dedicated Infrastructure Storage as a Service is managed and maintained by Silicon Sky with the relevant support as set out in 1.8. The management and maintenance is of the underlying storage system only and does not include storage switches and servers/hosts unless specified in the Service Order. Customer is required to manage storage and data at the server/host level. Customer does not get access to the underlying storage system.
  • Customer agrees that on-premises Dedicated Infrastructure provided by Silicon Sky will be housed in a secure data centre with redundant power through UPS’s, sufficient cooling, secure physical access, fire suppression system and CCTV security surveillance. Customer agrees to provide Silicon Sky physical access to the dedicated infrastructure when needed. Customer agrees to provide remote access to Customers network to access the dedicated infrastructure.
  • VMware vSphere Management for Dedicated Infrastructure includes MACD’s of vSphere as/if specified in the Service Order.
  • Virtual Machine Management for Dedicated Infrastructure includes the status monitoring of the virtual machine and MACD’s relating to the Virtual Machine at a hypervisor level for dedicated Infrastructure as/if specified in the Service Order.
  • Hardware Monitoring includes hardware component up/down status monitoring of the Dedicated Infrastructure as/if specified in the Service Order. Network access to the hardware is required for this service.
  • Hardware management includes the management of the hardware components as listed in the service order. Hardware management excludes hypervisor and or operating system management. Network access to the hardware is required for this service.
  • Firewall Management for Dedicated Firewalls as listed in the Service Order includes hardware monitoring, firmware updates when needed, firewall configuration management, firewall policy management and MACD’s as and when needed.
  • Operating System Management includes Operating System Monitoring of CPU, RAM and Storage, Operating System Patch updates as agreed with Customer Schedules and Operating System related MACDs as/if specified in the Service Order.
  • Maximum of 5 IPsec (Internet Protocol Security) tunnels, 5 VLANs (Virtual Local Area Network) and 20 VPN (Virtual Private Network) users for the shared firewall service.
  • Anti-Virus Service includes Anti-Virus Software with a weekly quick Virus scan and a monthly full Virus scan schedule. The Anti-Virus software receives Anti-Virus updates when new updated are released from the Software vendor.
  • Customer is responsible for Anti-Virus software and updated on their Cloud Servers or Dedicated Infrastructure unless specified otherwise in the Service Order.
  • Unlimited Internet Traffic is based on a shared Internet Link with no throughput guarantees. Silicon Sky uses commercially reasonable efforts to ensure the shared Internet Link is not saturated.
  • Where on-site support is required, such support shall be charged at the Applicable Hourly Rate and shall be included in Customer’s following month’s invoice.
  1. CUSTOMER SOFTWARE
    • Customer may install and host software on the System, subject to the provisions of this clause 5.
    • Customer warrants and represents that it has the necessary rights, permissions and licences to install and host such software on the System and indemnifies Silicon Sky against any damages, loss, penalties or costs which it may suffer or incur, whether directly or indirectly, and howsoever arising, resulting from or relating to, a breach of this clause 5.
  2. WARRANTIES
    • Customer warrants and represents Customer shall, and shall ensure, that its employees and any other persons given access to and/or use of the Hosting Services shall use the Hosting Services for lawful purposes only and in accordance with all applicable laws (including anti‑spam legislation) and the AUP.
    • Customer warrants that it has the necessary licences, certificates, authorities and consents required for the purposes of enabling Silicon Sky to provide all services under the Service Order.
  3. DATA AND CONTENT
    • Customer acknowledges and agrees that Silicon Sky has no knowledge of, nor interest in, Customer’s content hosted by Silicon Sky, the data transmitted to and from the System, data stored on or accessed from System or any data published by Silicon Sky on Customer’s behalf using the Hosting Services and further that Silicon Sky does not in any way contribute or approve such content.
    • Customer acknowledges and agrees that Silicon Sky shall be entitled, but not obliged (other than to the extent contemplated in clause 8), to monitor Customer’s use of the System so as to ensure that the System is operating properly.
    • Customer hereby unconditionally and irrevocably indemnifies and holds harmless Silicon Sky, its group of companies and their respective officers, directors, employees, agents, representatives, contractors, successors and assignees (each an “Indemnified Party”) from and against any and all claims, liabilities, losses, costs, expenses (including, without limitation, reasonable attorney’s fees) and damages, of whatsoever nature and howsoever arising, which an Indemnified Party may suffer and/or incur arising out of and/or resulting from Customer’s use of the Hosting Services, the hosted content or the transmission of data to and from the System, data stored on or accessed from the System or data publication using the System.
    • Upon termination of Service Order(s) the relevant services will be disabled and data removed from the System.
  4. STATUTORY COMPLIANCE
    • Customer acknowledges and agrees that Silicon Sky are obliged to comply with certain statutory provisions including, without limitation, certain provisions set out in the following statutes:
      • Regulation of Interception of Communications and Provision of Communication‑related Information Act 70 of 2002, as amended;
      • Film and Publications Act 65 of 1996, as amended; and
      • Electronic Communications and Transactions Act 25 of 2002, as amended.
    • Customer further acknowledges and agrees that compliance by Silicon Sky with such statutory provisions may include the interception of Customer’s communications or the examination of transmitted or stored data on the System.
    • Customer specifically agrees that it shall have no recourse against Silicon Sky in the event of its compliance with such statutory provisions and accordingly waives its right to make any claim or demand or to institute any legal proceedings against Silicon Sky.
    • Customer hereby unconditionally and irrevocably indemnifies and holds harmless Silicon Sky, its group of companies and their respective officers, directors, employees, agents, representatives, contractors, successors and assignees (each an “Indemnified Party”) from and against any and all claims, liabilities, losses, costs, expenses (including, without limitation, reasonable attorney’s fees) and damages, of whatsoever nature and howsoever arising, which an Indemnified Party may suffer and/or incur arising out of and/or resulting from Silicon’s Sky’s compliance with statutory provisions.
  5. USE RIGHTS
    • During the term of a Service Order, and in consideration for payment of the applicable charges, Silicon Sky grants or will procure for Customer a limited, revocable, non-transferable, non-exclusive licence to access and use the Hosting Services, subject to the terms of this clause 9 and the relevant Service Order, if applicable.
    • Customer hereby:
  • accepts the licence granted to it in terms of clause 1;
  • acknowledges that it will only use the Hosting Services in accordance with these Service Terms and the Service Order;
  • is authorised to use the Hosting Services only for its own business purposes; and
  • Acknowledges that it obtains no rights of ownership of the Hosting Services or any part thereof whatsoever.
  • Customer shall not:
    • except to the extent as may be permitted by law, modify, translate or create derivative works based on the Hosting Services, nor reverse assemble, decompile or reverse engineer the Hosting Services, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the Hosting Services or any files contained in or generated by the Hosting Services, nor shall it permit, whether directly or indirectly, any third party to do so;
    • merge or combine the whole or any part of the Hosting Services or any part thereof with any third-party software or documentation without the prior written consent of Silicon Sky;
    • grant any third party, besides its authorised users, if applicable, direct access to the Hosting Services, including, without limitation by way of lease, download, as an application or bureau service provider or any other method. For the avoidance of doubt, if Customer allows authorised users to use the Hosting Services, Customer shall be responsible for ensuring that such authorised users’ access to and use of the Hosting Services complies with the Agreement, and shall at all times remain solely liable for the acts and omissions of such authorised users as if they were the acts and omissions of Customer;
    • lend or transfer the Hosting Services or any part thereof to any third party;
    • sub-license or otherwise transfer the use of the Hosting Services, whether in whole or in part, to any third party; or
    • remove or suppress any proprietary notices on the Hosting Services.
  • Additional restrictions may apply to certain software, files, programs or data supplied by third parties or embedded in software. Such restrictions will be set out in the instructions or release notes and/or in the form of end user licence terms provided and/or made available with such material, and are incorporated herein by reference.
  • Silicon Sky reserves the right forthwith to suspend or terminate the provision of the Hosting Services (either in whole or in part) to Customer in the event of a default or breach by it or any of its users of the terms of this clause 9.
  1. SECURITY
    • Silicon Sky implements security measures commensurate with good industry practice in respect of the System.
    • If an unauthorised person attempts to gain, or gains, access to the System or if there is any other security violation, or if Customer reasonably considers there to be a potential security violation, it shall immediately notify Silicon Sky.
    • In the event of a security violation, or if Silicon Sky, in its sole discretion, determines that there is a potential security violation, Silicon Sky may take whatever steps it deems necessary to protect the System, including without limitation:
      • changing access codes and passwords: and
      • preventing access to the System.
    • Customer shall give reasonable cooperation to Silicon Sky in any investigation which may be carried out by Silicon Sky  relating to a security violation or potential security violation.
    • Customer shall take all reasonable measures necessary to ensure that no unlawful or unauthorised access is gained to the System.
    • Anti-Virus Software does not provide 100% protection against viruses. If Anti-Virus software is listed in the Service Order, Silicon Sky will endeavour to ensure Anti-Virus software is up to date, however Silicon Sky shall not be liable for any liabilities, losses, costs, expenses and/or damages suffered and/or incurred by Customer arising out of a virus.
    • Silicon Sky shall not be liable for any liabilities, losses, costs, expenses and/or damages suffered and/or incurred by Customer arising out of a breach of security in respect of the System.
    • Customer hereby unconditionally and irrevocably indemnifies and holds harmless Silicon Sky, its group of companies and their respective officers, directors, employees, agents, representatives, contractors, successors and assignees (each an “Indemnified Party”) from and against any and all claims, liabilities, losses, costs, expenses (including, without limitation, reasonable attorney’s fees) and damages, of whatsoever nature and howsoever arising, which an Indemnified Party may suffer and/or incur arising out of and/or resulting from any breach of security of the System caused by the acts or omissions of Customer.
  2. MAINTENANCE AND SUSPENSION OF SERVICES
    • Silicon Sky shall be entitled to conduct planned maintenance on the System on a quarterly basis for a maximum period of 8 (eight) hours. In order to conduct such maintenance, planned downtime is required.  Customer shall be notified of this planned downtime at least 7 (seven) days in advance, where possible.  Silicon Sky shall use reasonable commercial endeavours to ensure that any planned downtime resulting from such maintenance occurs outside of normal business hours, being 8am to 5pm Monday to Friday excluding public holidays.
    • Silicon Sky is furthermore entitled to immediately suspend the provision of the Hosting Services, or any part thereof, without any liability to Customer:
      • in order for Silicon Sky to repair, maintain, upgrade, modify, replace or improve the System and/or Hosting Services, including without limitation, in order to maintain the security of the System, provided that the period of suspension shall be that which is reasonable under the particular circumstances;
      • as a result of Customer’s act or omission or an act or omission of a third party for which Customer is responsible, including failure to supply accurate, complete, and timely information when requested;
      • if the necessary technology or other resources are unavailable on commercially reasonable terms;
      • if there are any issues including configuration issues with any operating system, database, application, network, hardware, infrastructure, or other code or materials not provided by Silicon Sky;
      • in order to comply with any applicable law or requests of governmental entities, in each case that adversely affects Silicon Sky’s ability to provide the Hosting Services;
      • where Customer has not made payment of monies owing to Silicon Sky by due date up until such time as all arrear amounts, including any interest thereon, is paid in full;
      • where Silicon Sky has reasonable grounds to believe that the Customer is or has been involved or connected with criminal activity or other activity, which is or may be detrimental to Silicon Sky, its third party contractors or its customers;
      • where Silicon Sky has reasonable grounds to believe that Customer has provided it with false information prior to or upon entering into the Agreement, or that it lacked the capacity to enter into the Agreement;
      • where Silicon Sky has reasonable grounds to believe that the security or functionality or the Hosting Services or any component thereof are under a significant threat;
      • where Silicon Sky has reasonable grounds to consider that it is entitled to terminate the Service Order, or that Customer has committed a breach of the Agreement or the AUP;
      • where Silicon Sky has reasonable grounds to believe that the Hosting Services are being used fraudulently or illegally or in violation of the Agreement or the AUP; or
      • where Silicon Sky is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority.
    • Notwithstanding anything to the contrary contained in the Agreement, and for the avoidance of doubt, Silicon Sky will not be liable or responsible for any Downtime caused by one or more of the following:
      • any maintenance, suspension, or termination of the Hosting Services, whether in whole or in part, in accordance with the provisions of the Agreement;
      • the failure of servers or services outside of a data centre on which the Hosting Services are dependent, including, but not limited to, inaccessibility of the Internet that is not caused by Silicon Sky’s infrastructure;
      • an attack on Silicon Sky’s infrastructure, including a denial of service attack or unauthorised access, provided that Silicon Sky has implemented and upheld reasonable security measures to prevent such attacks;
      • unavailability that results from the failure of Customer’s equipment or any hardware, software, equipment, service or facilities not provided by Silicon Sky;
      • any unavailability caused by a failure by Customer to timeously implement configurations to the Hosting Services required by Silicon Sky, or due to any configuration performed by Customer and not approved by Silicon Sky; or
      • any unavailability caused by Customer’s breach of the Agreement or the AUP.
    • Silicon Sky is entitled to suspend Hosting Services as set out in clause 2 immediately and without notice, provided that Silicon Sky shall use reasonable commercial endeavours to notify Customer of any such suspension.
    • Notwithstanding the foregoing, Customer acknowledges that circumstances may arise from time to time that require Silicon Sky to perform Emergency Works. In such cases, Silicon Sky shall endeavour to inform Customer as soon as possible of this requirement and the planned suspension of the Hosting Services. Notwithstanding the foregoing, however, the Parties acknowledge and agree that Silicon Sky may, acting reasonably, perform the Emergency Works without prior notice to Customer, provided that Silicon Sky shall notify Customer of such Emergency Works and suspension of the Hosting Services as soon as reasonably possible. Customer acknowledges and agrees that Silicon Sky shall not be held liable for any liabilities, losses, costs, expenses and/or damages suffered and/or incurred as a result of any such suspension, planned downtime or Downtime.
  3. SERVICE LEVELS AND SERVICE LEVEL CREDITS
    • Silicon Sky shall use its commercially reasonable endeavours to make its Hosting Services available to Customer and to maintain the Availability thereof for use by Customer. However, the Hosting Services are provided “as is” and “as available”.  Factors that affect service delivery include, without limitation, last mile connectivity, bandwidth availability, shaping and other circumstances that are beyond Silicon Sky’s control.
    • In the event of Downtime during any particular month that is caused by Silicon Sky, Silicon Sky shall pass a service level credit to Customer on the following month’s invoice. The service level credit shall be in the form of a credit on the amount payable by Customer in terms of such invoice, and shall be equal to the percentage of Downtime experienced relative to the Monthly Availability Percentage for the appropriate service as listed in the Service Order, limited to a maximum of 50% (fifty percent), and shall exclude VAT.
    • Customer agrees that the service level credit passed in clause 2 shall be considered a genuine pre-estimate of Customer’s damages, shall be Customer’s exclusive remedy in the event of Downtime and Silicon Sky shall not be liable for any further damages whatsoever.