Terms and Conditions (Legal Notice)

Macronym 25 cc T/A Digital Quark Technologies may here after be refered to as: DQ TECH and/or DQ TECHNOLOGIES and/or DQT

COMMENCEMENT, DURATION AND TERMINATION

This agreement shall, save as expressly indicated to the contrary in any specific product application form, commence upon acceptance of the application by DQ TECHNOLOGIES and shall continue indefinitely thereafter, provided that either party shall be entitled to terminate this agreement (or any specific product applied for) on one calendar month's written notice to the other to that effect.

PAYMENT

•  All fees payable in terms of this agreement shall be payable in advance. DQ TECHNOLOGIES shall at MONTHLY INTERVALS invoice the client in respect of the monthly fees and/or any other fees payable in terms of this agreement. In those cases where the relevant application form indicates otherwise, payment shall be made in terms of the application form.

•  There shall be no obligation on DQ TECHNOLOGIES to send invoices and/or statements to the client indicating what monthly amounts are due by the client to DQ TECHNOLOGIES. The client shall not be entitled to invoke the defense that the monthly fees payable for services in terms of this agreement have not been paid due to late or non-receipt of monthly invoices and/or statements.

•  No set-up fees paid shall be refundable.

•  DQ TECHNOLOGIES shall be entitled to increase any charges payable by the client.

•  The client shall not be entitled to any setoff, discount, refund or other credit in respect of any suspension or interruption of or delay in service, or where in any month the client has utilized less than any minimum bandwidth specified.

•  Should the client fail to pay any amount owing to DQ TECHNOLOGIES on due date, DQ TECHNOLOGIES shall be entitled, in its discretion and without prejudice to any other rights which it may have, to cancel this agreement without notice to the client, or to suspend performance of its obligations pending full payment by the client.

•  In the event that the client's payment is stopped, unmet by its bank or returned unpaid, DQ TECHNOLOGIES shall be entitled to charge the client a processing fee of R150,00 per failed payment , along with all other fees outstanding and any legal costs incurred.

•  In the instances where this agreement, in respect of any products applied for, specifies a minimum duration or term and a client cancels or purports to cancel this agreement in respect of such products, or the agreement is cancelled by DQ TECHNOLOGIES in terms of clause 9 of this agreement, prior to expiration of such minimum term, the remainder of all monthly payments payable during such minimum term shall immediately become due and payable to DQ TECHNOLOGIES.

•  In addition to the foregoing, DQ TECHNOLOGIES shall be entitled to charge interest at a rate of 2% per month above the prime bank rate of interest quoted by the Standard Bank of South Africa on any amounts payable by the client to DQ TECHNOLOGIES and not paid within seven days of due date. Thereafter interest is charged on the 15th of every proceeding month until complete(total?) payment has been received.

•  The client shall be liable for any and all expenses incurred by DQ TECHNOLOGIES on an attorney and client scale whether incurred prior to or during institution of legal proceedings or if judgement has been granted, in connection with the satisfaction of such judgement, in regards to the enforcement of this agreement.

•  The client agrees that in the event that any amounts are owing to DQ TECHNOLOGIES by the client and DQ TECHNOLOGIES being in possession of any of the client's property, DQ TECHNOLOGIES shall have a bona fide lien over such property and shall have the right to retain such property until all outstanding amounts have been paid to DQ TECHNOLOGIES.

MONITORING AND TERMINATION RIGHTS

•  The client acknowledges that DQ TECHNOLOGIES has no knowledge of, nor interest in, nor in any way contributes to, nor approves the creation of, the client's content as hosted by DQ TECHNOLOGIES and/or published by the client on the client's web site and/or the client's web server (whether owned by the client or rented from DQ TECHNOLOGIES) and/or published otherwise through use of any of DQ TECHNOLOGIES's products or services and that hosting or publication of certain kinds of content may be offensive, unlawful, in breach of codes of conduct binding on DQ TECHNOLOGIES, violations of legislation (including regulations), violations of the common law generally, and violations of the requirements and rules of any regulatory authority and that hosting and publication of certain kinds of content may cause harm to the name, goodwill and reputation of DQ TECHNOLOGIES, its affiliates, and its business partners.

•  Accordingly the client agrees, if DQ TECHNOLOGIES in the exercise of its sole discretion is of the opinion that the client's content is offensive, unlawful, or harmful, as set out above, that DQ TECHNOLOGIES, without derogating from any of its other rights in terms of this agreement, may:

•  request the client forthwith to remove the offensive, unlawful, or harmful content, as the case may be; or

•  request the client forthwith to amend or modify the content; or

•  without notice terminate access to the client's web site and/or the client's server (whether owned by the client or rented from DQ TECHNOLOGIES) and/or suspend or terminate access to DQ TECHNOLOGIES's products or services; or

•  without notice delete the client's web site from the server; or

•  without notice remove the client from the DQ TECHNOLOGIES portal or any other web property owned or administered by DQ TECHNOLOGIES.

•  The client agrees that nothing that DQ TECHNOLOGIES does in the performance of its obligations in terms of this agreement or in the carrying on of its business generally shall be construed as an assumption of responsibility or liability by DQ TECHNOLOGIES for the client's content and the publication thereof, whether or not DQ TECHNOLOGIES had knowledge of such content and the client hereby indemnifies DQ TECHNOLOGIES and holds it harmless against any liability and any claims of whatever nature made by any person for any loss or damage suffered arising directly or indirectly from the hosting and/or publication of the client's content as well as any other data of the client.

•  DQ TECHNOLOGIES shall use all reasonable endeavors to notify the client of any action taken in terms of clause 3.2 above, but does not warrant that notice shall be given to the client prior to such action being taken.

DISCLAIMER FOR LIABILITY

•  The client shall have no claim against DQ TECHNOLOGIES and the client hereby indemnifies and holds DQ TECHNOLOGIES free from liability in respect of any loss, damage or cost caused by or arising from:

•  any fact or circumstances beyond the reasonable control of DQ TECHNOLOGIES; or

•  any downtime, outage, interruption in or unavailability of any of the services or the DQ TECHNOLOGIES network infrastructure as a result of or attributable to any of the following causes:

•  software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises;

•  the non-performance or unavailability, of whatever nature and howsoever arising of any of the services provided by Telkom (including, but not limited to, line failure) or in any international services or remote mail servers;

•  the non-performance or unavailability, of whatever nature and howsoever arising, of external communications networks to which the client's server or the DQ TECHNOLOGIES network is connected;

•  the service, repairs, maintenance, upgrades, modification, alterations or replacement of any hardware forming part of the client's services or any faults or defects of whatever nature in such hardware;

•  any infringement of the client's rights of privacy and/or any other like rights (including those of any other person or entity), arising from the services provided in terms of this agreement;

•  any breach of security by any third party or any breach of confidentiality by a third party or otherwise arising from any access howsoever obtained by a third party to the client's information, data or content;

•  the damage, contamination or corruption of any kind of the client's data, material, information and/or content howsoever occasioned;

•  any service, repairs, maintenance, upgrades, modification, alterations, replacement or work of any nature done on the client's hardware, software or systems by any party other DQ TECHNOLOGIES;

•  without limiting the foregoing, any fact, cause or circumstances whatsoever and howsoever arising if DQ TECHNOLOGIES has substantially performed its obligations under this agreement.

•  Notwithstanding anything to the contrary contained in this agreement or in any addendum or annexure to this agreement, the client shall have no claim against DQ TECHNOLOGIES and the client hereby indemnifies and holds DQ TECHNOLOGIES free from liability in respect of any loss, damage or cost which is indirect, consequential or incidental in nature.

•  DQ TECHNOLOGIES reserves the right to take whatever action it deems necessary at any time to preserve the security and reliable operation of the DQ TECHNOLOGIES network and the client undertakes that it will not do or permit anything to be done which will compromise the security of the DQ TECHNOLOGIES network.

•  Although DQ TECHNOLOGIES shall use reasonable endeavours to provide disaster recovery, DQ TECHNOLOGIES does not specify any recovery time, nor shall DQ TECHNOLOGIES be liable for any loss or damage of whatever nature incurred or suffered by the client from any cause whatsoever as a result of DQ TECHNOLOGIES's failure to provide, or delay in providing, or providing only partial, disaster recovery. The client is accordingly advised to make back-ups of its data. Nothing contained in this paragraph should be construed as a representation that any back-ups of data implemented by client will be successful or in any way will avoid disaster.

MAINTENANCE AND REPAIR

DQ TECHNOLOGIES may temporarily suspend its obligations in terms of this agreement in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of DQ TECHNOLOGIES's services. Where the circumstances permit, DQ TECHNOLOGIES shall use its best endeavors to provide prior notice of any such suspension to the client. The client shall not be entitled to any setoff, discount, refund or other credit in respect of any such suspension of service nor in respect of any suspension that is beyond DQ TECHNOLOGIES's control.

INTELLECTUAL PROPERTY

•  All intellectual property rights vested in or owned by a party or held by a party under any licensing agreement with any independent third party (including, but not limited to, intellectual property rights obtained or developed by a party after commencement of this agreement), shall be and remain the sole property of such party and the relevant licensor's respectively.

•  The client shall not be entitled to use any of the trademarks, logos, brand names, domain names or other marks (collectively referred to herein as "marks") of DQ TECHNOLOGIES without the prior written approval of DQ TECHNOLOGIES. The client hereby grants DQ TECHNOLOGIES a non-exclusive licence to use the client's marks but only to the extent necessary or required by DQ TECHNOLOGIES to exercise its rights or fulfil its obligations under this agreement.

•  Other than specifically provided in this agreement, DQ TECHNOLOGIES shall wholly and exclusively retain all existing and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to the DQ TECHNOLOGIES network infrastructure, the DQ TECHNOLOGIES e-commerce network infrastructure, DQ TECHNOLOGIES's business and the provision of any of the services in terms of this agreement.

CESSION, DELEGATION OR ASSIGNMENT

•  The client shall not cede, assign or delegate or in manner whatever transfer (including but not limited to the sub-letting or re-sale of any bandwidth, disk space, server capacity or web hosting) of any of its rights or obligations under this agreement without the prior written consent of DQ TECHNOLOGIES. In the event of any change in controlling interest in the client, DQ TECHNOLOGIES shall be entitled to terminate this agreement on notice to the client. The client shall notify DQ TECHNOLOGIES of any change in its controlling interest within fourteen days of such change.

•  DQ TECHNOLOGIES shall be entitled to cede, assign, transfer or delegate all or any of its rights or

obligations under this agreement to an affiliate of DQ TECHNOLOGIES or to any third party.

DOMICILIUM

•  The parties choose domicilium citandi et executandi ("domicilium") for the purposes of giving any notice, the payment of any sum, the service of any process and for any other purpose arising from the agreement at the addresses specified in the application form.

•  Each of the parties shall be entitled from time to time by written notice to the other to vary his domicilium to any other address within South Africa , which is not a post office box or poste restante.

•  Any notice required or permitted to be given in terms of this agreement shall be valid and effective only if in writing.

•  Any notice given and any payment made by one party to the other ("the addressee")

which:-

•  is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery;

•  is posted by prepaid registered post from an address within South Africa to the addressee at the addressee's domicilium for the time being, shall be presumed, until the contrary is proved, to have been received by the addressee on the 7th (seventh) day after the date of posting;

•  is transmitted by telefax or e-mail shall be deemed (in the absence of proof to the contrary) to have been received within 1 (one) hour of transmission where it is transmitted during normal business hours and within 2 (two) hours of the commencement of the following business day where it is transmitted outside those business hours.

GENERAL

•  This document constitutes the sole record of the agreement between the parties and no addition, variation or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties. If there is any provision in any addendum which conflicts with any provision in the standard terms and conditions of service the latter shall prevail.

•  No party shall be bound by any express or implied term, representation, warranty or the like which is not recorded in this agreement.

•  No extension of time or indulgence which one party (the grantor) may grant to the other (the grantee) shall constitute a waiver of any of the rights of the grantor who shall not be precluded from exercising any past or future rights against the grantee.

BREACH

If either DQ TECHNOLOGIES or the client breaches any term of this agreement and fails to remedy such breach within seven days of written notice requiring it to do so, then the party not in breach shall be entitled, but not obliged, without prejudice to any rights or remedies which it may have, to cancel this agreement or to claim immediate performance and/or payment by the party in breach.

END.