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2.
AGREEMENT
IncrediNet hereby
enters into an agreement with the subscriber/participant in terms of
which the services referred to in clause 3 hereof are provided to the
subscriber/participant. The subscriber/participant, upon signing the
relevant application form, acknowledges acceptance of the following
terms and conditions.
3.
SERVICES
The following
services are provided to the subscriber/participant in terms of this
agreement:
i. Access
to the Internet,
ii. 5mb of
space on the IncrediNet infrastructure for the purposes of sending and
receiving mail between the subscriber/participant and other Internet
users, and
iii. 5mb of
space on the IncrediNet infrastructure for the purposes of hosting an
Internet site for the use of the subscriber/participant.
The
subscriber/participant agrees that IncrediNet shall not be responsible
for the supply, maintenance or support of any hardware equipment used by
the subscriber/participant to gain access to the services provided by
IncrediNet.
The
subscriber/participant further agrees that all telephone charges
incurred in the utilisation of IncrediNet's services shall be solely for
the subscriber's/participant's account.
4.
RESTRICTIONS OF USE
The
subscriber/participant hereby acknowledges and confirms that the User ID
and password allocated to the subscriber/participant are for the use of
the subscriber/participant only. The subscriber/participant warrants
that, under no circumstances will any party other than the
subscriber/participant gain access to the Internet using the
subscriber's/participant's User ID and password. The
subscriber/participant further acknowledges that, should such
unauthorised access be obtained by any third party, all costs relating
to such access and the discontinuation thereof will be for the account
of the subscriber/participant.
5.
SYSTEM AVAILABILITY
i. IncrediNet
shall make every reasonable effort to ensure that the services provided
for in this agreement are available to the subscriber/participant at all
times. However, due to circumstances beyond the control of IncrediNet,
IncrediNet does not guarantee that the system will be available at all
times.
ii.
IncrediNet shall not be held liable for any unavailability of networks
provided and controlled by any third party, including networks provided
by other Internet Service Providers or Internet Access Providers.
iii. The
subscriber/participant hereby indemnifies IncrediNet against all claims
of whatsoever kind resulting from IncrediNet being unable to provide any
services under this agreement.
iv.
IncrediNet shall use its best endeavours to notify the
subscriber/participant of scheduled maintenance to be done on
IncrediNet's servers and other hardware. However, IncrediNet does not
guarantee that such notice will be given.
v. The
subscriber/participant shall not be entitled to any discount or refund
of fees paid as a result of any system unavailability.
6.
PAYMENT OF CHARGES
i. On
completion of processing of the application, IncrediNet will open an
account for the subscriber/participant. Charges for services provided by
IncrediNet to the subscriber/participant will be billed to the
subscriber's/participant's account and such account will be settled
monthly by an automatic debit order instruction against the banking
account specified in section 5 of the application form. All such
payments will be done free of any deduction, commission or exchange
whatsoever.
ii. Upon
joining, the subscriber/participant will be charged a pro rata portion
of the initial month's subscription. Thereafter, all charges will be
levied on a monthly basis on the first calendar day of each month. Where
applicable, usage fees will be charged in arrears
iii.
IncrediNet reserves the right to withhold services to
subscribers/participants with overdue accounts. Should the
subscriber's/participant's account remain overdue, IncrediNet reserves
the right, without prejudice to any of the other rights available to IncrediNet
in terms of this agreement, to levy interest on the outstanding balance
at a rate of 2% above the prime overdraft rate as quoted by the Standard
Bank of South Africa from time to time.
iv. The
subscriber/participant agrees that, by furnishing the
subscriber's/participant's banking details on the application form, the
subscriber/participant consents to IncrediNet debiting such
subscriber's/participant's bank account on a monthly basis with the
amount due to IncrediNet for services provided or to be provided.
v. Should, as
a result of insufficient funds being available, a payment instruction be
rejected by the bankers of the subscriber/participant, the
subscriber/participant will be liable for any costs incurred by
IncrediNet as a result of such rejection.
vi.
IncrediNet reserves the right to increase or decrease the subscription
rates at its own discretion provided, however, that IncrediNet will give
the subscriber/participant at least 30 days' notice in writing of its
intention to do so.
vii. IncrediNet
shall be entitled to take all legally recognised steps required to
recover amounts outstanding and due to IncrediNet for services rendered
to the subscriber/participant. The subscriber/participant will be liable
for all costs associated with the recovery of amounts due to IncrediNet
in terms of this agreement including legal fees on the attorney/client
scale.
viii. The
subscriber/participant shall not be entitled to withhold payment of
amounts due to IncrediNet for any reason whatsoever.
7.
NETIQUETTE
The
subscriber/participant agrees to abide by generally accepted Internet
etiquette ("netiquette") and shall not use the IncrediNet
services in a manner which:
i.
constitutes a violation of any law,
ii.
constitutes behaviour which is considered unacceptable or offensive in
any way by any person of reasonable standing,
iii.
constitutes a violation of any intellectual property rights of others,
iv. is
considered threatening, harassing or intimidating in any way,
v. is
fraudulent in any way,
vi. is
hateful in any way,
vii. is
intended to defame any party in any way, or
viii.
causes any damage to the good reputation held by IncrediNet.
The
subscriber/participant also agrees that the services of IncrediNet will
not be used for any of the following:
i. hosting
of undesirable material such as pornographic items or blasphemy,
ii.
transmission of data files containing viruses which may affect the
network or the destination systems,
iii.
computer hacking,
iv.
spamming and
v. the
generation of unsolicited mailings.
Should the
subscriber/participant be found to be in breach of the terms of this
clause, IncrediNet reserves the right to:
i.
terminate this agreement with immediate effect,
ii. recover
from the subscriber/participant any costs incurred, and
iii. notify
all affected parties of the details of the subscriber/participant.
8.
CONTENT
The
subscriber/participant hereby agrees to respect the intellectual
property rights of owners of content and material obtained on the
Internet using the services of IncrediNet.
IncrediNet makes no
representation as to the accuracy, validity, applicability,
appropriateness or quality of any content or material available on the
Internet.
9.
SECURITY
The
subscriber/participant agrees that IncrediNet reserves the right to take
whatever action is considered necessary to ensure that the security of
the systems used by IncrediNet is not compromised in any way.
The
subscriber/participant further agrees that the services and systems of
IncrediNet will not be used to gain or attempt to gain unlawful access
to data and equipment not belonging to the subscriber/participant.
10.
INDEMNITY
The
subscriber/participant hereby indemnifies IncrediNet, its owners,
employees, partners, service providers, agents, dealers as well as
fellow subscribers/participants against any loss incurred or any other
suffering experienced by the subscriber/participant as a result of the
use of the services provided by IncrediNet, including any loss incurred
as a result of the unavailability of the service.
11.
BREACH
Should the
subscriber/participant be in breach of any of the terms and conditions
of this agreement, including failure to pay any amount due to
IncrediNet, IncrediNet shall reserve the right, without obligation and
without prejudice to any other rights which IncrediNet may have under
this agreement and in law, to, in its sole discretion and without
notice, do any of the following:
i.
terminate this agreement with immediate effect,
ii. claim
all amounts outstanding and due to IncrediNet,
iii. claim
any legal costs incurred, including costs on the attorney/client scale
and
iv. claim
any damages incurred by IncrediNet as a result of such breach.
12.
CESSION AND DELEGATION
The
subscriber/participant agrees that the rights and obligations of the
subscriber/participant cannot be ceded or delegated without the prior
written consent of IncrediNet, which consent will be given at Inc
rediNet's sole and absolute discretion.
IncrediNet reserves
the right to cede or delegate any or all of its rights or obligations
under this agreement at its sole and absolute discretion.
13.
MARKETING SYSTEM
The
subscriber/participant hereby acknowledges that the marketing system
used by IncrediNet is one of a direct selling nature. IncrediNet uses
the following two marketing programmes:
a)
IncrediVIP - which is a network marketing model in which the subscriber
earns a rebate subject to the following terms and conditions;
i.
depending on the size and status of the subscriber's upline, rebates
are limited to a maximum of 24% of the subscriber's own subscription,
ii. all
rebates earned are ceded to the sponsor of the subscriber and their
upline (up to a maximum of four levels) as recognition of, and in
appreciation for, their introduction to IncrediNet,
iii. the
status of the subscriber will be determined by IncrediNet on a monthly
basis on the last day of each calendar month, and
iv. should
the subscriber cancel this agreement for any reason, the subscriber's
position in the network marketing structure will be maintained vacant
to permit such subscriber to rejoin the system in their original
position, thereby retaining the downlines previously created. However,
should the said subscriber elect to rejoin under a new sponsor,
previously created downlines will not be moved to the newly created
position.
b)
IncrediMetals - which is a classical direct selling model in which the
participant earns a rebate subject to the following terms and
conditions;
i.
depending on the participant's status, rebates are limited to a
maximum of 20%,
ii. rebates
are received on subscription fees paid by direct recruits of
participants only,
iii.
rebates are earned by the direct recruits on their own subscriptions,
but ceded to the participant as recognition of, and in appreciation
for, their introduction to IncrediNet, and
iv. for the
purposes of determining the status of the participant on a monthly
basis, IncrediNet shall require monthly updated information regarding
the size of the participant's subscriber base, which information the
participant agrees to provide to IncrediNet on request and which
information shall be subject to verification at IncrediNet's sole
discretion.
The
subscriber/participant hereby agrees to be bound by the rules and
regulations, as determined by IncrediNet from time to time in its sole
and absolute discretion, of the above marketing programmes used by
IncrediNet.
14.
JURISDICTION
The
subscriber/participant hereby irrevocably consents to the jurisdiction
of the Magistrates' Court in the Republic of South Africa, for any
proceedings that may be initiated by IncrediNet in terms of this
agreement. However, IncrediNet shall be entitled to initiate such
proceedings in the High Court of South Africa in its sole and absolute
discretion.
This agreement
shall be governed by the laws of the Republic of South Africa.
15.
REGULATORY COMPLIANCE
The
subscriber/participant undertakes to comply with all regulatory
obligations imposed by the body regulating the services provided by
IncrediNet.
16.
CERTIFICATE OF INDEBTEDNESS
A certificate
issued by a duly authorised officer of IncrediNet shall be prima facie
evidence of any amount due and owing by the subscriber/participant to
IncrediNet.
17.
TERMINATION
Either party can
terminate this agreement on not less than one calendar months notice to
the other party to the effect that such agreement is to be terminated.
The agreement shall terminate on the expiry of such notice, provided
that any amounts due to IncrediNet on such date shall be paid and
settled immediately by the subscriber/participant.
18.
DOMICILIUM CITANDI ET EXECUTANDI
The parties select
the following addresses as their domicilium citandi et executandi for
all purposes under this agreement:
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