In this Agreement, the words hereunder will have the meanings assigned to them below:-
“Agreement” means these General Terms and Conditions, applicable Services Terms and Conditions, all the Policies of ORION TECHNOLOGIES and all other application or order forms, as amended and updated from time to time.
“Confidential Information” means any information or data relating to ORION TECHNOLOGIES and any Group Company (even if not marked as being confidential, restricted, secret, proprietary or any similar designation), in whatever format and whether recorded or not (and if recorded, whether recorded in writing, on any electronic medium or otherwise), which:
by its nature or content is identifiable as confidential and/or proprietary to the Company; or
is intended or by its nature or content could reasonably be expected to be confidential and/or proprietary to the Company, and includes:
information relating to existing and future strategic objectives and existing and future business plans and corporate opportunities.
trade secrets.
technical information, techniques, know-how, operating methods and procedures.
details of costs, sources of materials and customer lists (whether actual or potential) and other information relating to the existing and prospective customers and suppliers.
pricing, price lists and purchasing policies.
computer data, programmes and source codes; information contained in or constituting the hardware or software, including third party products and associated material.
information relating to the network telecommunications services and facilities.
any and all methodologies, formulae and related information in developed software and processes and other business.
products, drawings, designs, plans, functional and technical requirements and specifications.
Intellectual Property that is proprietary or that is proprietary to a third party and in respect of which the Company or any company in the Group has rights of use or possession.
marketing information of whatsoever nature or kind.
financial information of whatsoever nature or kind.
information relating to any contracts to which the Company or any Group company is a party; and any information which is not readily available to a competitor of the Company and/or any of its Related Companies in the normal and ordinary course of business.
“CPA” means the Consumer Protection Act No. 68 of 2008 of South Africa.
“Customer” “you” or “your” means the Customer making use of the Services offered and provided by ORION TECHNOLOGIES and includes all the users of the Customer that have the benefit of or avail of the Services in terms of this Agreement.
“ORION” means ORION TECHNOLOGIES (Pty) Ltd, trading as ORION TECHNOLOGIES, with its registration number: 2025/069879/07, a private company duly incorporated under the laws of South Africa, with its business address at Bath Road, Wynberg, Cape Town, South Africa, 7800.
“ORION TECHNOLOGIES System” means equipment operated together as a system by ORION TECHNOLOGIES to provide its Service(s) and services ancillary to such Service (s).
“ORION TECHNOLOGIES Website” means the Internet website published at the URL https://orioninc.co.zaor another URL that ORION TECHNOLOGIES notifies the Customer of from time to time.
“Fees” means the fees applicable and charged by ORION TECHNOLOGIES for each of the Services, as disclosed on ORION TECHNOLOGIES Website and in writing, before the Customer subscribes or applies for such Service(s).
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
“Malicious Code” means anything that contains any computer software routine or code intended to allow unauthorised access or use of a computer system by any party, disable, damage, erase, disrupt or impair the normal operation of a computer system, and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
“NCA” means the National Credit Act, 34 of 2005 of South Africa.
“Parties” means the Parties to these Standard Terms and Conditions and “Party” means any one of them as the context may indicate.
“Personal Information” means any information relating to an identifiable, living, natural person, and where applicable, an identifiable, existing juristic person including –
information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture language and birth of the person.
information relating to the education or the medical, financial, criminal or employment history of the person.
any identifying number, symbol, e-email address, physical address, telephone number, location information, online identifier or other particular assignment to the person.
the biometric information of the person.
the personal opinions, views or preferences of the person.
correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence.
the views or opinions of another individual about the person; and
the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
“Processing” means any operation or activity or set of operations, whether or not by electronic means, concerning personal information including –
the collection, receipt, recording, organisation, collection, storage, updating or modification, retrieval, alteration, consultation or use.
dissemination by means of transmission, distribution or making available in any other form; or
merging, linking, restriction, degradation, erasure or destruction of information.
“POPIA” means the Protection of Personal Information Act, no 4 of 2013 of South Africa.
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trademark (whether or not registered), or Copyright Material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property. For the purposes of this definition, “Copyright Material” means any Material in which copyright subsists.
“RICA” means the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 of South Africa.
“Service(s)” means all the service(s) provided by ORION TECHNOLOGIES as specified on ORION TECHNOLOGIES Website.
“Signature Date” means the date of signature of this Agreement by the Party signing it last in time.
“Software” means any computer program or software installed or provided by ORION TECHNOLOGIES for the purposes of using the Services and any modifications, enhancements or upgrades thereto.
“South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to applicable codes of conduct, as may be promulgated or amended from time to time.
“Supplier” means a supplier of goods and / or services to ORION TECHNOLOGIES; and
“VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991 of South Africa.
The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.
A reference to any statutory enactment shall be construed as a reference to that enactment as at the signature date and as amended or substituted from time to time.
Application and Initiation of Services
By subscribing to or applying for the Services, the Customer hereby appoints ORION TECHNOLOGIES to provide the Service(s) to the Customer for the duration of this Agreement, which appointment ORION TECHNOLOGIES accepts, subject to the terms and conditions contained in this Agreement.
Each application for or subscription to a Service will constitute a separate contract between the Parties and ORION TECHNOLOGIES reserves the right to refuse to commence provision of a Service based on the Customer’s prior conduct.
If required by ORION TECHNOLOGIES, your application for a Service may be subject to a credit referencing or risk assessment process. You agree that ORION TECHNOLOGIES may request and receive your confidential, credit and prescribed information (as defined in the NCA) (“Assessment Information”) from registered credit bureau in order to perform a financial means test to determine whether you will be in a position to meet your obligations under the intended agreement. ORION TECHNOLOGIES is entitled to perform a financial means test each time you apply for a Service. No agreement shall come into effect in the event of a negative credit reference or risk assessment, unless at the discretion of Orion Technologies to waive this clause. ORION TECHNOLOGIES may choose to waive this clause on a case-by-case basis and any such waiver shall not constitute a permanent or overall waiver of this clause for all Services. In this regard you consent to ORION TECHNOLOGIES requesting, receiving and reporting your Assessment Information from and to registered credit bureau in accordance with the provisions and for the purposes of the NCA; and the sharing of such information by registered credit bureau and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
Depending upon the Service provided, ORION TECHNOLOGIES may be obliged under RICA to obtain certain information and documents from the Customer, and ORION TECHNOLOGIES may withhold or suspend providing Services until the Customer has provided the necessary information and/or documents to ORION TECHNOLOGIES.
If the Customer is a juristic person, ORION TECHNOLOGIES may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, ORION TECHNOLOGIES may withhold providing the Services until the surety has been signed.
If the Customer has not complied with a requirement of this clause, ORION TECHNOLOGIES may delay providing the Goods or Services until the Customer has complied. If the Customer does not comply within a reasonable period, ORION TECHNOLOGIES may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result.
ORION TECHNOLOGIES cannot guarantee the provision of the requested Service upon the receipt of an application. Provision of the Service is subject to ORION TECHNOLOGIES confirming that it is technically feasible to do so. Applicants will be formally notified after receipt of an application whether or not the Service can be provided.
Memberships
Membership fees will generally escalate by 5% annually
Membership Fees are payable in full in advance of the Membership Start Date
ORION will issue the Member with an invoice for the Membership Fees on or around the date of this Membership Agreement
ORION reserves the right to delay the Membership Start Date until the Membership Fees have been received in full and funds cleared
If the Member wishes to increase the number of Permitted Users or otherwise increase the scope of the Membership Services it receives, it must notify ORION and ORION may then offer the Member revised Membership Fees for the amended Membership Services based on the increased number of Permitted Users and/or scope of Membership Services, which will then become part of the Member’s membership hereunder only upon full payment of any additional Membership Fees.
In consideration of and subject to the Member's payment of the Membership Fees, ORION grants to the Member and the Permitted Users a non-exclusive, non-transferable Membership to access and use the Membership Services and the Materials for the Membership Period strictly in accordance with and subject to the terms and conditions of this Membership Agreement
The Member agrees that all Permitted User logins, passwords and other Permitted User identification (together Membership Credentials) used to access the Membership Services are confidential and personal to each Permitted User. The Member will ensure that Permitted Users do not disclose or transfer Membership Credentials to any person.
The Member must notify ORION immediately of any unauthorised use of any Membership Credentials or any other breaches of security regarding the Membership Services that come to the Member’s attention
Without prejudice to any other right or remedy, ORION may disable any Membership Credentials at any time if in ORION’s opinion the Member or a Permitted User has failed to comply with Clauses 3.7 and/or 3.8
All current memberships are annual based & will escalate by 5% annually
New joining members will need to pay in advance and will only get the discounted rates after the membership is approved, payment is received, and a membership number is given to the member.
Personal members cannot allow other users to use their membership. If anyone is found out allowing other users to use their membership, the member will forfeit their membership fees and lose their membership and will need to re-apply at full cost.
Business members cannot allow other businesses to use their membership. If a Business is found out allowing other businesses to use their membership, the member will forfeit their membership fees and lose their membership and will need to re-apply at full cost.
Business members are allowed to add additional users to their membership at an additional rate
Only members can accept goods purchased.
All goods returned is at member’s cost.
We do offer collection of returned goods at a collections cost
Delivery costs are not included in the purchase cost.
We hold the right to approve or deny any membership
Orion grants you a non-exclusive, non-transferable right to access the Orion Portal(s)
Access to the Orion's Portal shall be through your assigned User ID and password or another authentication mechanism provided by Orion.
Any adjustments by you to Services in the Orion Portal are binding on your organisation and you warrant that you have authority to request the adjustments in the Orion Inc portal.
Commencement and Termination
This Agreement shall be effective from the date on which you register for any Services with ORION TECHNOLOGIES.
Subject to the Service terms, this Agreement shall continue in effect on an annual basis and either Party shall have the right to terminate this Agreement upon providing the other Party with at least one calendar month notice.
The Customer acknowledges that ORION TECHNOLOGIES may:
terminate this Agreement by written notice, including email, and without liability in the event of the termination of its agreement with a Supplier relevant to the provision of any Service; or
suspend or terminate the Services of a Customer in its absolute discretion and without notice:
if the Customer commits a serious or repeated breach of the Agreement (and in particular any provision of the Acceptable Use Policy) or the Customer engages in any conduct which in ORION TECHNOLOGIES opinion would have a negative impact on ORION TECHNOLOGIES, other customers of ORION TECHNOLOGIES or ORION TECHNOLOGIES staff or is detrimental to the welfare, good order or character of ORION TECHNOLOGIES.
any part of the Customer’s Fees is not paid in full when due.
the information the Customer supplied to ORION TECHNOLOGIES is found to be incorrect or false; or
ORION TECHNOLOGIES reasonably thinks that the Customer’s use of the Services may result in the commission of a crime or is otherwise unlawful.
Upon such suspension or termination, the Customer:
may not resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against ORION TECHNOLOGIES, its servants, its agents or any other persons for whom it may be liable in law.
will not be eligible for re-imbursement of any of the Fees paid in advance for the Services, if applicable.
may be barred from subscribing to any services with ORION TECHNOLOGIES in the future.
may be listed with applicable authorities and credit bureaus.
ORION TECHNOLOGIES may in its sole discretion determine the period of suspension it may deem necessary in consideration of the particular circumstances that gave rise to the suspension.
Services and Changes to Services
ORION TECHNOLOGIES offer various Services and may provide recommendations to customers, based on the information provided by such customers. ORION TECHNOLOGIES provides Services on the basis of information provided by the Customer, and ORION TECHNOLOGIES offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Customer. The Customer is solely responsible for ensuring that their choice of Services provided by ORION TECHNOLOGIES to their requirements or desired outcome. ORION TECHNOLOGIES will not be liable for compensation, costs or damages resulting from incorrect selection of Services, or resultant delays in rectifying such errors.
While every effort is made by ORION TECHNOLOGIES and its Suppliers to ensure that all Services retain a constant uptime as such all Services are based on the best effort premise where no guarantees on throughput, latency or uptime can be provided.
To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against ORION TECHNOLOGIES, is to require ORION TECHNOLOGIES to remedy the defect in the quality of the Services performed.
ORION TECHNOLOGIES reserves the right to stop offering particular Services if it deems it necessary. ORION TECHNOLOGIES will then either provide the service for the remainder of the time that has been paid for or refund the amount paid for that specific package.
Security
ORION TECHNOLOGIES will implement measures in line with Good Industry Practice to ensure the security of the ORION TECHNOLOGIES System and the physical security of ORION TECHNOLOGIES premises but gives no warranty that breaches of security will not take place.
If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify ORION TECHNOLOGIES in an appropriate way that does not further compromise security concerns.
The Customer must not do anything that may prejudice the security of the ORION TECHNOLOGIES System, and must take all reasonable measures necessary to ensure that:
no unlawful access is gained to ORION TECHNOLOGIES premises, the ORION TECHNOLOGIES System, or the Customer’s own system.
no Malicious Code is introduced into the ORION TECHNOLOGIES System; and
the Customer Data is safeguarded.
If a security violation occurs, or ORION TECHNOLOGIES is of the view that a security violation is imminent, ORION TECHNOLOGIES may take whatever steps it considers necessary to maintain the proper functioning of the ORION TECHNOLOGIES System including without limitation:
changing the Customer’s access codes and passwords (or those of any user of the ORION TECHNOLOGIES System), and
preventing access to the ORION TECHNOLOGIES System.
ORION TECHNOLOGIES takes reasonable measures to provide disaster recovery; but does not warrant that recovery will be successful or that it will be completed within any time limit.
The Customer must give its full cooperation to ORION TECHNOLOGIES in any investigation that may be carried out by ORION TECHNOLOGIES regarding a security violation.
If the Customer is providing any Service to third parties that makes use of the ORION TECHNOLOGIES System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 5.
Customer Duties
Customer is prohibited from selling, reselling or otherwise dealing with the Services(s) which are proprietary to ORION TECHNOLOGIES in any manner whatsoever without its consent. Without limitation to the foregoing, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to ORION TECHNOLOGIES unless the Customer is duly authorized to resell such Service(s).
The Customer is prohibited from allowing any person, other than its authorised parties, to have access to the Service(s).
The Customer shall only use the Service in compliance with South African Laws, the terms and conditions of this Agreement and ORION TECHNOLOGIES Policies, as published on ORION TECHNOLOGIES Website. The Customer acknowledges that ORION TECHNOLOGIES has no obligation to assist the Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
Where any Service is provided to the Customer with a predefined maximum allowable amount of resources, which includes, but is not limited to: bandwidth, traffic usage, data, memory, data storage, CPU or data cap (“Resource Allocation”) during a predefined period or term as applicable to the particular Service, such Resource Allocation may not be exceeded. In the event of such Data Allocation being exceeded by you, ORION TECHNOLOGIES shall charge you for such overage as applicable to the particular Service and at the prevailing overage rate for that Service. Alternatively, ORION TECHNOLOGIES may elect to deduct the amount exceeding the original Resource Allocation from the following Resource Allocation as applicable to the specific Service.
In case of any dispute that arises, it remains the customer’s duty to reach out to ORION TECHNOLOGIES by means of the available communication channels albeit phone, online chat or email in order for ORION TECHNOLOGIES to mitigate and resolve dispute.
Fees, Charges and Payment
Subscription options: With reference to the applicable Service, ORION TECHNOLOGIES offers the following subscriptions options:
Monthly: Fees will be due monthly in advance and should be paid on or before the invoice due date. Subject to the provision of the Agreement, the Customer must give one calendar month’s written notice to ORION TECHNOLOGIES in order to cancel this subscription / membership.
Annual: Fees are due and payable on or before the 1st Business Day of the commencement of the period or any subsequent renewal period. Subject to the provision of the Agreement, the subscription shall be renewed automatically for further annual renewal period(s), unless cancelled by Customer with at least one calendar month’s written notice to ORION TECHNOLOGIES, before the expiry of the applicable annual period.
Usage Fees, if applicable, shall be billed in arrears.
Billing process:
Billing will commence on the date that Service provision commences. Partial months will be charged pro rata.
Services are billed in advance and all invoices must be paid by the Customer in advance.
Any Services invoiced in arrears are payable on presentation of invoice.
All Fees and other amounts payable are quoted inclusive of VAT unless indicated otherwise.
All Fees shall be paid by debit order or credit card payments. ORION TECHNOLOGIES shall only accept payment annual payments by way of electronic funds transfer or Debit Order in exceptional circumstances and on only by prior arrangement at ORION TECHNOLOGIES discretion; and
All payments shall be without deduction and free of exchange or set off.
Consequences of late or non-payment:
If any Fees remains unpaid by the Customer beyond the due date of payment:
the interest rate will be charged at 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month in accordance with the maximum interest rate allowed in terms of the NCA for incidental credit agreements.
the prime overdraft rate will be determined by ORION TECHNOLOGIES’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.
interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears.
In the event of a debit order being returned by your bank, ORION TECHNOLOGIES shall charge a debit order return fee of the greater of 5% of the attempted debit order amount or R50.00 (or the customer billing currency equivalent thereof); and
if the non-payment passes fourteen days from the due date, a letter of demand may be sent to you. If payment is not received after twenty business days from the date of notice, your default will be listed on a registered credit bureau database, which will affect your credit rating.
The customer’s hosted data is at risk of being irrecoverably removed from our infrastructure and there is no guarantee that this data can be recovered at a later date.
ORION TECHNOLOGIES retains the right to suspend any and all its Services for non-payment (which may not be limited to the particular Service in question), and to withhold such Services until all arrears are settled in full on any and all products and Services. Suspension occurs after the company have made reasonable efforts to notify customers in advance of such suspension. While Services are in a suspended state you will have no access to the Services but will continue to be liable for the full cost associated with the Service(s) and no refunds or pro-rata of any kind will be provided to you for the period in which the Service was suspended. The company is not liable for any resulting losses due to non-payment-related service suspension.
If the Customer’s Service(s) are suspended or terminated for non-payment (or any other breach of this Agreement), ORION TECHNOLOGIES may charge a reconnection fee for subsequent reactivation of Services. Reconnection Fees are payable in full before any services can be reactivated. ORION TECHNOLOGIES may charge multiple reconnections Fees where multiple Service(s) are affected and may charge “escalating” penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice ORION TECHNOLOGIES’s right to enforce such penalties in full at any time (within their discretion). Reconnection of Services may be subject to a waiting period of up to 72 hours, at ORION TECHNOLOGIES discretion, regardless of when payment is received or cleared.
Billing disputes:
In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time to prevent interruption of services while the billing is in dispute. All invoices shall be sent to Customers by way of e-mail and the Customer is responsible to keep ORION TECHNOLOGIES informed of all changes to such e-mail addresses.
All billing complaints must be directed to ORION TECHNOLOGIES in writing (enquiries@orioninc.co.za) and must be accompanied by a copy of the bill concerned or the particulars thereof, e.g. username or invoice number, the reason for the dispute; the amount in dispute; and supporting information or documentation, if any.
ORION TECHNOLOGIES will reach a determination regarding the billing complaint and communicate its decision to you within fourteen (14) working days of receipt of the complaint.
Reparations will be made to Customers with successful disputes by means of an account credit or refund, at ORION TECHNOLOGIES’s discretion.
Amendment of Fees:
ORION TECHNOLOGIES reserves its rights to change its prices at any time on reasonable notice, which will not be less than thirty days.
Intellectual Property Rights and Infringements
All Intellectual Property rights in and to ORION TECHNOLOGIES Software, Systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement shall belong to ORION TECHNOLOGIES. In addition, all intellectual property rights in and to Suppliers’ software, systems, procedures and policies (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service(s) provided under this Agreement and licensed to ORION TECHNOLOGIES shall be made available to Customers in the sole discretion of ORION TECHNOLOGIES and subject to ORION TECHNOLOGIES agreement with such Suppliers. The Customer undertakes that it shall at no time, have any right, title or interest in the Intellectual Property of ORION TECHNOLOGIES or the applicable Suppliers and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the software systems, procedures and policies owned by ORION TECHNOLOGIES, or any of its Suppliers.
The Customer agrees to only make use of properly licensed third party software in connection with its use of the Services and agrees to indemnify and hold ORION TECHNOLOGIES and any of its members, representatives, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any third party claims relating to its involvement in any copyright infringement or alleged copyright infringement.
The Customer warrants that it shall not use the Service(s) to produce, host or present any content in contravention of any person’s Intellectual Property rights, and in particular warrants that it shall recognise, acknowledge and use any content in accordance with any third party’s Intellectual Property rights. The Customer furthermore warrants that it has received all necessary permissions to make use of any Intellectual Property relating to third parties.
Any specifications, descriptive matter, drawings and other documents which may be furnished by ORION TECHNOLOGIES to the Customer from time to time:
do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement; and
shall remain the property of ORION TECHNOLOGIES and shall be deemed to have been imparted by it in trust to the Customer for the sole use of the Customer. All copyright in such document’s vests in ORION TECHNOLOGIES and such documents shall be returned on demand.
Protection of Personal Information
A Party (“Operator”) shall at all times treat and hold all Personal Information it receives and processes from the other Party (“the Responsible Party”) as confidential and must not disclose it unless required by law or in the course of the proper performance of their duties and may only process such information with the knowledge or authorisation of the Responsible Party.
The Operator undertakes that it will endeavour to:
in order to protect the proprietary interests of the Responsible Party in and to its Confidential Information and Personal Information the Operator will not at any time, whether during the currency of this Agreement or at any time thereafter, either use any Confidential Information or Personal Information of the Responsible Party or directly or indirectly divulge or disclose any Confidential Information or Personal Information of the Responsible Party to third parties; and
upon termination, cancellation or expiry of this Agreement the Operator will deliver to the Responsible Party, or at the Responsible Party’s option, destroy all originals and copies of Confidential Information in its possession.
The foregoing obligations will not apply to any information which –
is lawfully in the public domain at the time of disclosure to the Operator.
subsequently becomes lawfully part of the public domain by publication or otherwise.
subsequently becomes available to the Operator from a source other than the Responsible Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information or Personal Information to the Operator; or
is disclosed pursuant to requirement or request by operation of law, regulation of court order.
is required to be processed or retained in terms of any legal obligation or law.
The Customer consents and agrees as part of the conclusion and performance of contract to ORION TECHNOLOGIES Processing Personal Information transmitted to ORION TECHNOLOGIES System in a way which is consistent with the Service being provided. Where the Customer’s use of the Service(s) leads to the transmission of Processing of Personal Information, which includes personal information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Customer warrants that it has obtained the consent of any third party for the use and Processing of that party’s Personal Information in this way, or otherwise that such Processing is lawful, and indemnifies ORION TECHNOLOGIES from any claim brought by such third party as a result of its failure to do so.
ORION TECHNOLOGIES will use reasonable endeavours to ensure the safekeeping of any Personal Information or content which may be uploaded to the ORION TECHNOLOGIES servers from time to time, such as and without being limited to, photographs, websites, videos and e-mail messages (hereinafter collectively referred to as “your data”). However, ORION TECHNOLOGIES does not provide any guarantees against data loss, and as such you agree to retain your own backups of your Personal Information and indemnify and hold harmless ORION TECHNOLOGIES from any claims as a result of your Personal Information being lost for whatsoever reason.
ORION TECHNOLOGIES shall immediately delete all of your Personal Information from the ORION TECHNOLOGIES servers upon termination of the Service or termination of this Agreement. It is thus your responsibility to ensure that you have made local copies of all of your Personal Information prior to the termination of the Service. ORION TECHNOLOGIES shall not retain backups of any kind once the Service is terminated.
Representations and Warranties
ORION TECHNOLOGIES warrants and represents that:
it has the capacity and authority to enter into and perform in terms of this Agreement and to provide the Services to the Customer.
it is the owner of or has the right to use any intellectual property employed by it during or as part of the Service(s);
the Services shall be performed in compliance with South African Law, including the provisions of POPIA and the conditions for lawful processing of Personal Information.
the Services shall be provided in accordance with the provisions of this Agreement.
the Services will be performed in a professional manner and that it is and/or it shall use personnel that is suitably qualified and has sufficient knowledge, expertise and competence to perform the Service(s), in accordance with the standard of its industry.
Save as expressly set out in clauses 1, ORION TECHNOLOGIES does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service(s) and all warranties which are implied or residual at common law are hereby expressly excluded.
ORION TECHNOLOGIES does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service(s):
will be preserved or sustained in its entirety.
will be delivered to any or all of the intended recipients; or
will be suitable for any purpose.
will be free of inaccuracies or defects or bugs or viruses of any kind; or
will be secured against intrusion by unauthorised third parties; and ORION TECHNOLOGIES assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 09.
Customer Warranties
In addition to and without limiting any Customer warranty under this Agreement, the Customer undertakes and represents that:
it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and
the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in any violation or breach of, any contract to which Customer is a party.
Force Majeure
ORION TECHNOLOGIES shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of ORION TECHNOLOGIES.
It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of ORION TECHNOLOGIES:
a Supplier’s fault of interruption that affects the Service(s).
the non-performance, inability to perform or delay in performance by the upstream provider relating to the provisioning of equipment, services and/or facilities to ORION TECHNOLOGIES that affects the Service(s).
acts or omissions of any government, government agency, provincial or local authority (including disruption or suspension of the provision of municipal services) or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm, fire or any other event classifiable as an “act of god”;
all telecommunications infrastructure and communication line faults.
failure or unreasonable delay by the Customer to report faults/problems to ORION TECHNOLOGIES; and/or
the failure of any hardware, software programme, applications(s) or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service(s).
Limitation of Liability and Indemnity
ORION TECHNOLOGIES shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where ORION TECHNOLOGIES negligence, failure, delay or inability to perform any of the Service(s), any defect or failure in the Equipment, or due to the occurrence of any of the following events:
the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement, including non-payment of fees.
circumstances that constitute an event of force majeure as contemplated in clause 11 hereof.
compliance by ORION TECHNOLOGIES with any applicable national and international legislation and laws.
any alteration to the Software and Equipment by the Customer; and/or
any defect and/or hazard in any third-party equipment required by the Customer to be used in the provision of the Services.
The Customer shall indemnify and hold ORION TECHNOLOGIES and any of its members, representatives, officers or employees as well as any third parties whose networks are connected to the ORION TECHNOLOGIES System, harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 12
In the event that ORION TECHNOLOGIES is nonetheless held liable, the quantum of ORION TECHNOLOGIES ’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss, in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of ORION TECHNOLOGIES or any other cause.
From time to time, ORION TECHNOLOGIES may deem it necessary to conduct maintenance, repair and/or improvement work on its technical infrastructure by means of which the Services are provided and in order to perform these activities, ORION TECHNOLOGIES may have to suspend the Services. ORION TECHNOLOGIES undertakes to provided reasonable notice to the Customer by way of a notice on its website and the Customer agrees that all liability on the part of ORION TECHNOLOGIES of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
Use of the Services indicates that the Customer indemnifies and holds harmless ORION TECHNOLOGIES in respect of any damages, loss or costs or claims instituted against ORION TECHNOLOGIES arising from any application or subscription to or use of any Service or breach of the Agreement.
Nothing contained in this clause 12 will limit the Customer’s liability in respect of charges incurred for ongoing Services.
If the CPA is applicable to this Agreement, and any provision of this clause 13 is found by a court or tribunal with jurisdiction over ORION TECHNOLOGIES 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 12 will have full force and effect.
In the case of ambiguity, this clause 12 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
Breach
In the event of any breach by the Customer of the terms and conditions outlined in this Agreement, excluding cases of non-payment of due and payable amounts, ORION TECHNOLOGIES reserves the right to enforce the following actions without prejudice to any other rights or claims ORION TECHNOLOGIES may have:
If the Customer breaches any terms or conditions of this Agreement and fails to rectify the breach within 14 (fourteen) days of receiving notice from ORION TECHNOLOGIES.
If the Customer seeks to enter into a compromise, scheme of arrangement, or composition with its creditors.
If any judgment against the Customer remains unsettled for more than 10 (ten) days without immediate steps being taken to have it rescinded and the application for rescission successfully prosecuted to its final conclusion.
If the Customer commits any act of insolvency, is placed in liquidation or judicial management (whether provisionally or finally), or if the Customer is an individual and their estate is sequestrated or voluntarily surrendered.
If the Customer disposes of a significant portion of its undertaking or assets; or
If the Customer fails to make a payment on the due date for such payment.
In any of the above scenarios, ORION TECHNOLOGIES is entitled to, upon providing written notice to the Customer, take the following actions without incurring any liability or obligation:
Suspend, discontinue, or terminate all Services until the non-payment or breach is remedied to ORION TECHNOLOGIES satisfaction.
Consider all outstanding amounts, which would otherwise become due and payable over the unexpired period of the Agreement, as immediately due and payable. ORION TECHNOLOGIES may also claim such amounts, as well as any other amounts in arrears, including interest. ORION TECHNOLOGIES reserves the right to cease the performance of its obligations under this Agreement and any other contract with the Customer until the breach is remedied.
Collect and retrieve all Equipment. The Customer is required to inform ORION TECHNOLOGIES of the location of such equipment and allow unfettered access for its collection.
Cancel or terminate this Agreement.
The Customer shall be liable for all costs incurred by ORION TECHNOLOGIES in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own customer scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
Dispute Resolution
Any dispute which arises relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to the chief operating officers of ORION TECHNOLOGIES and the Customer or alternates appointed by them, who will use their best efforts to resolve the dispute within five (5) business days of the dispute having been referred to them.
Notices and Domicilia
All request by the Customer for amendment or termination of the Services or change of any of the business or personal information of the Customer must be made in writing in accordance with this clause 15. Any notice required to be given in terms of this Agreement shall be valid and effective only if in writing, which shall include electronic communications.
The Parties select their addresses, where they will accept service of any notice or documents for all purposes as their respective domicilia citandi et executandi the physical addresses appearing therein, as follows:
ORION TECHNOLOGIES: as disclosed on its website; and
Customer: the latest contact details disclosed and recorded by ORION TECHNOLOGIES, provided that it is the responsibility of the Customer to inform ORION TECHNOLOGIES of any changes to such contact details.
The Parties shall be entitled from time to time by written notice to the other, to vary its contact details, which change will take effect on the date on which the notice is deemed to be received by the other party in terms of clause 4 below.
Any notice given by one party to another party (the “addressee”) which:
is delivered by hand during normal business hours at the addressee’s physical address shall be deemed to have been received by the addressee at the time of delivery.
is given by fax shall be deemed to have been received by the addressee on the first business day following the day of successful transmission of the fax.
is given by pre-paid registered post shall be deemed to have been received by the addressee on the tenth business day following the day of posting; or
is given by electronic mail shall be deemed to have been received by the addressee on the second business day following the day of successful transmission of the electronic mail.
Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 4.
Application of the Consumer Protection Act
A transaction (as defined in the CPA) between you and ORION TECHNOLOGIES may or may not fall under the provisions of the CPA depending upon whether certain values set out in clause 18.2 in respect of the Customer (“Threshold Values”) are below a certain value at the time the transaction is entered into.
The Threshold Values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
ORION TECHNOLOGIES duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and ORION TECHNOLOGIES will act upon the information given to it by the Customer in this regard. Consequently:
the Customer warrants that any statement made to ORION TECHNOLOGIES in respect of its Threshold Values is accurate.
if the Customer claims that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, ORION TECHNOLOGIES may at its instance require the Customer to provide it with financial statements as proof thereof; and
if the Customer misstates the Threshold Values in such a way that ORION TECHNOLOGIES considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by ORION TECHNOLOGIES resulting from such misstatement.
General
This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
ORION TECHNOLOGIES may amend the provisions of this Agreement at any time. The amended Agreement will be posted on ORION TECHNOLOGIES website (https://orioninc.co.za) and ORION TECHNOLOGIES will make all reasonable efforts to advice the Customer of the changes. The Customer also had a duty to keep itself informed of the latest version of the Agreement by accessing ORION TECHNOLOGIES website on a regular basis. Amendments will become effective 30 (thirty) days after the new version has been published on ORION TECHNOLOGIES website. If a customer wishes to object to any of the amendments, it may terminate the Agreement and the termination will be effective one month after receipt by ORION TECHNOLOGIES of the written notice of termination, where after all Service(s) will be discontinued by ORION TECHNOLOGIES. The Customer may not make any amendments to the Agreement.
No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by the Customer (including, but not limited to sub-letting or re-selling of any disk space, server capacity or web hosting) without the prior signed written consent of ORION TECHNOLOGIES. In the event of any change in the controlling interest of the Customer, the Customer shall give written notice of such event and ORION TECHNOLOGIES reserves the right to terminate the Agreement on written notice to the Customer. ORION TECHNOLOGIES shall be entitled to cede, delegate, assign or otherwise transfer any of its right and obligations hereunder to a third party.
This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law. The Customer irrevocably consent to the jurisdiction of the Magistrate Courts in accordance with the Magistrates Court Act 32 of 1944, provided that ORION TECHNOLOGIES may institute legal proceedings in the High Court of South Africa.
The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities and accept personal liability under this Agreement should they prove not to be so authorised.
Fair Use Policy
In order to provide all Customers with proportionate and fair access to the network resources, ORION TECHNOLOGIES operates a fair use policy.
During high levels of usage, ORION TECHNOLOGIES ’s fair use policy will restrict the available connection speed of Customers identified as having made a disproportionate use of network resources.
ORION TECHNOLOGIES will monitor each Customer’s total download and upload volume throughout each month to identify those Customers with a disproportionate usage profile. Customer usage will be calculated on a monthly basis, as a result, ORION TECHNOLOGIES will reset the monitored volume to zero at the commencement of each month.
ORION TECHNOLOGIES’s fair use policy restricts only the speed of access, it does not limit the time connected to the internet through broadband or reduce the overall download and/or upload volume of any Customer or user.
ORION TECHNOLOGIES will not be liable to you or any other third party for any loss or damages to you or any third party may suffer arising from, or in any way relating to, the restriction of access of speed as a consequence of operating its fair use policy.
Refund policy
Non-refundable products/services
No refunds will be given for any product/service we purchase from third-party suppliers where refunds are not possible. This includes:
Domains
In the case where a product is cancelled, a refund is requested, and a domain name was included at no additional cost to the client (free) with the product. ORION TECHNOLOGIES will deduct the normal selling price of the domain from any refundable amounts due to the client. The domain remains the property of ORION TECHNOLOGIES until either
Sufficient hosting fees have been received over the course of the product, such that it will cover the normal selling price of the domain. or
The customer pays the difference between the total hosting fees received, and the normal selling price of the domain.
SSL Certificates
All software licences including but not limited to Acronis™ backup licence, cPanel account licences, all Plesk licences, Windows Server Standard, Remote Desktop, MS SQL, MY SQL, MS Office, Anti-Virus.
Dedicated Servers, Cloud Servers, Virtual Machines and Containers are subject to a 30-day notice period and no refunds will be offered unless cancellation is requested within 3 days from order.
No pro-rata refunds will be processed for services that have been billed for periods longer than 1 month (annually etc).
No refunds will be processed for once off charges. These charges include (and are not limited to) services such as membership fees, setup fees, restoration fees, redemption fees, etc.
Refund disbursement methods
Refunds will be paid out in the form of monetary value in the currency of the initial order.
Payments made with a bank card are refunded back to the same card via transaction reversal.
Refunds of bank transfer payments or EFT are done via bank transfer with the banking details supplied by the account holder.
If the request email is sent from the authorised email address on the billing account, we require banking details and proof they are the bank account holder before we approve the refund.
If request is not sent from the authorised email, we require banking details, proof they are the bank account holder, copy of ID and copy of company registration document before we approve the refund.
Refunds of PayPal payments are done via PayPal to the PayPal account that made the payment.
Payments done via PayFast are refunded by PayFast on request. The timescale for all PayFast credit card refund is 5-10 working days. All PayFast EFT payments will be paid into the client’s bank account within 48 hours.
Payments done via DPO are refunded by DPO on request. The timescale for all DPO credit card refund is 24 to 72 working hours.
Payments done via M-Pesa are refunded by M-Pesa on request. The timescale for all M-Pesa credit card refund is within 72 working hours.
All refunds are third-party dependent, and ORION TECHNOLOGIES cannot be held liable for refund payment delays caused by any mentioned third-party provider.
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