General Terms & Conditions for Geek Patrol Services

19 Apr 2018

Introduction

  • These Terms and Conditions cover all trading companies and divisions falling within the immedia ecosystem (Pty) Ltd T/A Geek Patrol referred to herein as “Geek Patrol”.
  • By contracting with Geek Patrol for Services, a Client will be lawfully regarded as having agreed to their use of any Services being governed by this Agreement and/or offered commercially by Geek Patrol, as well as third-party services implemented and/or managed for the Client via Geek Patrol.

Important Notice
Your attention is drawn in particular to clauses rendered in bold capitals in these terms. This section is a summary for your convenience and does not form part of the Agreement between you and Geek Patrol. It is your responsibility to read all clauses.

  1. Definitions
    1. “Acceptable Use Policy” means a document that defines the accepted behaviour of users of a particular Service offered by Geek Patrol; also referred to as “AUP”.
    2. “Agreement” means these General Terms, Acceptable Use Policy, as well as applicable Service Terms, Service Orders and all annexures to any of these documents.
    3. “Application” means a request for initiation of a Service(s) and/or provision of Good(s).
    4. “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.
    5. “Business Hour” means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
    6. “Client” is the party described as such on any Application or Service Order executed between it and Geek Patrol; also referred to as “you” or “your”.
    7. “Client Data” means Data that is:
      1. transmitted to the Client using the Geek Patrol System;
      2. stored by the Client on the Geek Patrol System (or on the Client Systems as the case may be);
      3. transmitted by the Client via the Geek Patrol System; or
      4. in the day-to-day utilisation of a Service.
    8. “Client Equipment” means any equipment installed at Geek Patrol’s premises by the Client that Geek Patrol does not own, including without limitation servers, peripherals, routers, switches, Software, Databases, Data cables, and uninterruptible power supplies.
    9. “Data” means electronic representations of information in any form.
    10. “Database” means a collection of related data including, but not limited to, text, images, sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
    11. “Domain” means an Internet subdomain registered with an authorised registrar appropriate to its top-level domain (“TLD”) and comprising its constituent domain name server records including, but not limited to, host names, aliases and mail exchange (“MX”) records.
    12. “Emergency Maintenance” means maintenance to the Geek Patrol System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Communication Services, or substantial loss to Geek Patrol, the Client or any third party.
    13. “Fee” in respect of each Service will be as noted in the Fee Schedule provided to the Client on initiation of the Service and adjusted from time to time.
    14. “Geek Patrol” means either of Geek Patrol (Pty) Ltd or the immedia ecosystem (Pty) Ltd or any other entity which Geek Patrol (Pty) Ltd or the immedia ecosystem (Pty) Ltd may assign, cede or delegate any of their rights or obligations to.
    15. “Geek Patrol System” means equipment operated together as a system by Geek Patrol to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.
    16. “Geek Patrol Website” or “the Website” means the Internet website published at the URL “geekpatrol.co.za“ or another URL that Geek Patrol notifies the Client of from time to time, and all pages and documents accessible via this website.
    17. “General Terms” means this document.
    18. “Goods” means any and all goods to be provided by Geek Patrol to the Client in terms of this Agreement, including without limitation equipment, hardware and third-party software.
    19. “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.
    20. “Intellectual Property Rights” means patents, registered designs, trademarks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, that grant similar rights.
    21. “Malicious Code” means anything that contains any computer software routine or code intended to:
      1. allow unauthorised access or use of a computer system by any party; or
      2. disable, damage, erase, disrupt or impair the normal operation of a computer system; and
      3. includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
    22. “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2003.
    23. “Service” or “Services” generally means Internet services and access but for each specific service offering, the meaning will be specified in more detail within the Agreement for each of the listed options.
    24. “Service Order” means a goods, license, services and/or work order agreed to in terms of this Agreement describing the specific Goods or Services to be provided by Geek Patrol to the Client.
    25. “Service Terms” means a document describing the terms on which Geek Patrol will provide a particular Good or Service, as amended from time to time.
    26. “Software” means any computer programme (whether source code or object code), any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
    27. “Supplier” means a supplier of goods and/or services to Geek Patrol.
    28. “User/s” means the Client or any other person accessing any the Services provided by Geek Patrol; also referred to as “you” or “your”.
  2. How the Agreement Works
    1. The Goods and Services that Geek Patrol will provide to the Client will be described in a Service Order.
    2. These General Terms apply to all Services.
    3. More details of particular Goods or Services may be contained in Service Terms.
    4. The Service Order(s), Service Terms, and this document together form the Agreement between Geek Patrol and the Client. If the Parties enter into a Service Level Agreement or agree to an annexure to any of these documents, these will also form part of the Agreement.
    5. If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: General Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Agreement, unless otherwise expressly stated in writing.
  3. Applications and Initiation
    1. Geek Patrol will provide the Goods and Services to the Client as described in an Application or Service Order in terms of the Agreement.
    2. Geek Patrol reserves the right to refuse to commence provision of Services based on the Client’s prior conduct or preceding reputation as a debtor.
    3. An Application must be submitted to Geek Patrol via the Website, email or physical form. Once an Application is accepted by Geek Patrol it becomes a Service Order.
    4. Each Service Order (read with the other documents mentioned above) will be a separate contract between the Client and Geek Patrol (unless amended or renewed by another Service Order).
    5. The terms of one Application or Service Order will not apply to another, unless a Service Order amends or renews an existing Service Order or adds Goods or Services to an existing contract.
    6. The Client consents to Geek Patrol carrying out a credit check on the Client at any applicable credit bureau, and may make the provision of the Goods or Services dependant on its satisfaction with the results. Geek Patrol may provide information on the Client’s payment record to a credit bureau.
    7. If the Client is a juristic person, Geek Patrol may require one or more of its officers to stand surety for the Client’s obligations under this Agreement. Even if the Agreement has commenced, Geek Patrol may withhold providing the Services until the surety has been signed.
    8. Depending upon the Service provided, Geek Patrol may be obliged under RICA to obtain certain information and documents from the Client, and Geek Patrol may withhold or suspend providing Services until the Client has provided the necessary information and/or documents to Geek Patrol.
    9. If the Client has not complied with any requirement of this clause, Geek Patrol may delay providing the Goods or Services until the Client has complied. If the Client does not comply within a reasonable period, Geek Patrol may terminate this Agreement and will not be liable for any damage that the Client may suffer as a result.
    10. Commencement of the Services is subject to a seven-day cooling-off period which will be interrupted if the Service in question is made available to the Client during this period.
  4. Client’s Commitments
    1. The Client confirms that all statements made and information submitted to Geek Patrol are true and correct. Geek Patrol reserves the right to request proof of any facts or claims. The Client also commits to providing Geek Patrol with necessary information required in the provision of the selected Services, and (where applicable) consent to the use or sharing of this information with third parties to comply with regulatory conditions (such as Domain Registration Listings) within the guidelines of applicable privacy legislation.
    2. Geek Patrol reserves the right to, at any time, request verification of the identity of the Primary Account Holder. Failure to produce such verification could result in summary suspension or cancellation of the product(s) and Services.
    3. The Client (or the Client’s agent) certifies that the Client is above the age of 18 years, has full contractual capacity and (in the case of an agent) is duly authorised by the Client to contract on the Client’s behalf.
    4. Geek Patrol’s website and attached systems are designed to facilitate reasonable use of the Geek Patrol products and Services. Geek Patrol reserves the right to suspend or terminate users who are improperly using features of the systems to avoid billing, shaping, suspension or any other system controls, or exploit bugs or limitations in the system design to effect avoidance of system controls or commit crimes. Geek Patrol reserves the right to deem an activity as “unreasonable exploitation of the system” and will take appropriate action based on the circumstances and severity of the incident(s).
    5. The Service Order(s) and this Agreement, the Services or the interpretation of the supporting documents shall be governed by the laws of the Republic of South Africa and the courts of South Africa will decide any disputes.
    6. If the Client or its staff engages in behaviour that is in contravention of the Acceptable Use Policy or may be considered offensive to Geek Patrol or its staff, Geek Patrol reserves the right to suspend or terminate the Client’s Services, irrespective of the form and medium of this abuse.
    7. In the event that any of the terms of this document are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
    8. Geek Patrol reserves the right to remove any content hosted by a Client which it considers illegal or contrary to the AUP or for which it has received a takedown notice.
    9. The Client shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by Geek Patrol.
  5. Terms Subject to Change
    1. Geek Patrol may amend the General Terms and Service Terms at any time. The amended versions will be posted on the Website. The Client also has a duty to duty to keep itself informed of the latest version of the above documents by accessing the Website on a regular basis.
    2. If the Client objects to any of amendment, it may terminate the Agreement, and the termination will become effective at the end of the normal notice period.
    3. If Geek Patrol changes its Fees, the change must take place as described in this clause.
  6. Interactions with Staff and the Geek Patrol Brand
    1. Clients will be held accountable for their conduct towards Geek Patrol staff and in the public domain with regard to allegations or malicious conduct directed towards Geek Patrol or its staff.
    2. Abusive behaviour, including (but not limited to) aggression, offensive language or conduct, including threats or any type of intimidation on a forum or directed at Geek Patrol or its staff will be deemed abusive and will not be tolerated. Such conduct may constitute an AUP violation and Geek Patrol reserves the right to suspend or terminate Services to a Client in such cases.
    3. Clients using public platforms to spread libel, false allegations, or to unreasonably or maliciously diminish the reputation or public perception of the Geek Patrol brand may have their Services suspended or terminated, depending on the severity and circumstances of the incident(s), and may also be regarded as contrary to the AUP.
  7. Availability of Services
    1. Geek Patrol cannot guarantee the provision of the requested Service upon the receipt of an Application.
    2. Provision of the Service is subject to Geek Patrol confirming that it is technically feasible to do so.
    3. Applicants will be formally notified after receipt of an Application whether or not the Service can be provided.
  8. Choice of Services and Products
    1. Whilst Geek Patrol will endeavour to provide advice to the Client, the Client is solely responsible for ensuring that their choice of product or Service conforms to their requirements or desired outcome. Geek Patrol is not liable for compensation, costs or damages resulting from incorrect selection of products or services, or resultant delays in rectifying such errors.
    2. Sign-up for products and services is subject to the cooling-off period described in Section 44 of the Electronic Communications and Transactions Act (“the ECT Act”).
    3. Geek Patrol provides Services on the basis of information provided by the Client, and Geek Patrol offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Client.
    4. Geek Patrol reserves the right to discontinue particular Services if it deems it necessary. Geek Patrol will then either provide the Service for the remainder of the time that has been paid for or to provide the Client with a refund for a pre-paid Service.
  9. Payment and Penalties
    1. Unless otherwise agreed:
      1. Billing will commence on the date that Service provision commences. Partial months will be charged pro rata.
      2. Services are billed in advance and all invoices must be paid by the Client in advance.
      3. Any Services invoiced in arrears are payable on presentation of invoice.
    2. All Fees and other amounts payable are quoted exclusive of VAT unless stated otherwise.
    3. Geek Patrol only accepts Debit Order and Credit Card payments for Services, and will only accept alternative payment under specific circumstances and only by prior arrangement at Geek Patrol’s discretion.
    4. The Client’s monthly Debit Orders of the Fee will be submitted monthly in advance on or about the first Business Day of the month. This will apply to both Debit Order Payments and Credit Card Payments.
    5. Geek Patrol will not accept any liability or responsibility for delays, suspensions or impact to Services due to use of non-approved payment methods by the Client.
    6. Unpaid Debit Orders, declined Credit Cards or any other irregularity regarding payment which results in non-payment may result in immediate suspension of Services (which may not be limited to the particular Service in question). Geek Patrol retains the right to suspend any Services for non-payment, and to withhold such Services until all arrears are settled in full on any and all products and Services.
    7. Geek Patrol reserves its rights to change its prices at any time on reasonable notice, which will not be less than 30 days, as per the minimum term of Agreement.
    8. Geek Patrol may charge an Admin Fee for failed or returned payments, regardless of method of payment or the reason for non-payment. Such Admin Fees are payable immediately and in conjunction with the outstanding fees which resulted in non-payment. Admin Fees will be calculated on a sliding scale based on the number of incidents of non-payment on the Client’s payment record. Non-payment of Admin Fees will be considered non-payment and will be subject to the same terms. Once levied, Admin Fees are not recoverable or reversible, regardless of whether payment is made within the prescribed period.
    9. If the Client’s Services are suspended or terminated for any reason, including non-payment, Geek Patrol may charge a Reconnection Fee for subsequent reactivation of Services. Reconnection Fees are payable in full before any Services can be reactivated, once suspended. Geek Patrol may charge multiple Reconnection Fees where multiple products are affected, and may charge “escalating” penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice Geek Patrol’s right to enforce such penalties in full at any time (within their discretion).
    10. Reconnection of Services may be subject to a waiting period of up to 72 hours, at Geek Patrol’s discretion, regardless of when payment is received or cleared.
    11. In cases of suspension of Services due to non-payment, Geek Patrol reserves the right to levy both Reconnection Fees and Admin Fees. Any and all penalty fees must be settled in full, prior to reconnection of affected services.
    12. Both Admin and Reconnection fees will not exceed R400 (charged on a sliding scale based on the number of incidents of non-payment), and this amount is based on (but not limited to) a reasonable estimation of accumulated administrative costs (such as labour), bank penalties and resubmission charges levied by payment carriers.
    13. In the case of billing disputes, the onus is upon the Client to raise such disputes in good time to prevent interruption of services while the billing is in dispute. Reparations will be made to clients with successful disputes by means of an account credit or refund, at Geek Patrol’s discretion.
    14. Geek Patrol reserves the right to terminate services where a Client has shown a repeated disregard for payment terms and consistently fails to make regular scheduled payments on time and using approved payment methods. The conditions of termination will be based on guidelines determined at Geek Patrol’s discretion and may vary. The means and terms of termination will be determined at Geek Patrol’s discretion. Notice of termination will be provided to the best of Geek Patrol’s ability, but Geek Patrol will not be held liable for claims or requests for further provision of services once a Client’s services have been terminated due to non-payment.
    15. Interest will be charged on any amount that remains unpaid by the Client beyond the due date of payment:
      1. The interest rate will be 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month.
      2. The prime overdraft rate will be as charged by Geek Patrol’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.
      3. The 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. The Client agrees and undertakes to pay the interest.
  10. Debit Order Authorisation
    1. By accepting these terms, the Client hereby authorises Geek Patrol to issue and deliver payment instructions to Geek Patrol’s Banker for collection against the Client account at the Client’s Bank (or any other bank or branch to which the Client may transfer the account) on condition that the sum of such payment instructions will never exceed the obligations as agreed to in the Agreement and continuing until this Authority and Mandate is terminated by the Client by giving Geek Patrol notice in writing of not less than 20 ordinary working days, and sent via email or delivered to Geek Patrol’s address.
    2. In the event that the payment day falls on a Sunday, or recognised South African public holiday, the payment day will automatically be the preceding ordinary Business Day.
    3. The Client understands that the withdrawals hereby authorised will be processed through a computerised system provided by the South African Banks and also understands that details of each withdrawal will be printed on the Client’s bank statement. Each transaction will contain a number, which must be included in the said payment instruction and if provided to the Client should enable the Client to identify the Agreement. A payment reference is added before the issuing of any payment instruction.
    4. Mandate: The Client acknowledges that all payment instructions issued by Geek Patrol shall be treated by the Client’s Bank as if the instructions have been issued by the Client personally.
    5. Cancellation: The Client agrees that although this Authority and Mandate may be cancelled by the Client, such cancellation will not cancel the Agreement. The Client shall not be entitled to any refund of amounts which Geek Patrol has withdrawn while this Authority was in force, if such amounts were legally owing to Geek Patrol.
    6. Assignment: The Client acknowledges that this Authority may be ceded or assigned to a third party if the Agreement is also ceded or assigned to that third party, but in the absence of such assignment of the Agreement, this Authority and Mandate cannot be assigned to any third party.
  11. Term and Termination
    1. Geek Patrol operates on 24-month contracts.
    2. The Client must give notice of termination to Geek Patrol in writing. Cancellation of any Service is the Client’s responsibility. The Client is responsible for ensuring that such cancellation of Service is actioned with due attention to terms of cancellation, as well as cancellation conditions which require the Client to specifically indicate a required process. Should the Client incorrectly complete the cancellation process, Geek Patrol will not be liable for any additional costs or compensation due to the error.
    3. Either party may terminate this Agreement and any service provision where there is a breach of this Agreement by the other which has not been remedied within 7 (seven) days of receipt of written notice to do so.
    4. The Client acknowledges that Geek Patrol may terminate this Agreement by written notice, including email, and without liability in the event of the termination of its Agreement with an upstream licensee relevant to the provision of any connectivity Service.
    5. Geek Patrol reserves the right to deactivate or terminate selected Free Products, such as Fax2Email, should they not be used within a prescribed period or at Geek Patrol’s sole discretion. Such termination will take place automatically, as per product specifications, and may occur without prior warning. Geek Patrol accepts no liability should such termination take place, and no warranty is made regarding the availability of said products in the future. For example, should a Fax2Email be deleted if not used within 90 days, Geek Patrol makes no warranty that the number can be made available again, and accepts no liability for any consequences resulting in the deletion of the product. Geek Patrol reserves the right to terminate products provided as Free Products where a breach has occurred (such as non-payment) in relation to other products, whether or not such breach has direct or indirect bearing on the Free Product service provision.
    6. The parties agree that in the event of a breach of this Agreement by the Client which causes Geek Patrol to suffer damages of any nature whatsoever, Geek Patrol shall not be required to attach any of Client’s hardware in execution, and shall be entitled to retain a lien over such hardware in reduction of any debt due by Client to Geek Patrol.
  12. Transferability
    1. Should Geek Patrol agree to the acquisition or transfer of any or all of its Services to another company, such Services and Services Agreements will be transferred to the acquiring entity. Clients affected will be notified of such changes and any potential impact to their Service Agreement within the minimum term (30 days) of Agreement.
  13. Client Information and Privacy
    1. Clients signing up for Services as a Primary Contact are considered as “the Client” and no other parties will be permitted access or authority to the Client Account, even if they are a third-party recipient or affiliate of the Client.
    2. Geek Patrol will observe all privacy of information best practices, in accordance with the applicable laws of South Africa, including the Protection of Personal Information Act (POPI) of 2013.
    3. The Client consents to Geek Patrol processing Personal Information transmitted to the Geek Patrol System in a way which is consistent with the Service being provided. Where the Client’s use of a Service leads to the transmission of Personal Information to or from the Republic of South Africa, the Client 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 Client warrants that it has obtained the consent of any third party for the use of that party’s Personal Information in this way, or otherwise that such processing is lawful, and indemnifies Geek Patrol from any claim brought by such third party as a result of its failure to do so.
    4. Geek Patrol may retain backups as a matter of course for up to one year after termination, and the Client consents to such retention. However, Geek Patrol gives no warranty in respect of the effectiveness of such backups (if any).
  14. Security
    1. Geek Patrol will implement measures in line with Good Industry Practice to ensure the security of the Geek Patrol System and the physical security of Geek Patrol’s premises, but gives no warranty that breaches of security will not take place.
    2. If the Client discovers a security violation, or thinks that a security violation is imminent, it must immediately notify Geek Patrol in an appropriate way that does not further compromise security concerns.
    3. If the Client suffers damage as a result of loss or corruption of Client Data through a security violation, it will be liable for the damage if the violation was the Client’s fault.
    4. The Client must not do anything that may prejudice the security of the Geek Patrol System, and must take all reasonable measures necessary to ensure that:
      1. no unlawful access is gained to Geek Patrol’s premises, the Geek Patrol System, or the Client’s own system;
      2. no Malicious Code is introduced into the Geek Patrol System; and
      3. the Client Data is safeguarded.
    5. If a security violation occurs, or Geek Patrol is of the view that a security violation is imminent, Geek Patrol may take whatever steps it considers necessary to maintain the proper functioning of the Geek Patrol System including without limitation:
      1. changing the Client’s access codes and passwords (or those of any user of the Geek Patrol System), and
      2. preventing access to the Geek Patrol System.
    6. Geek Patrol 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.
    7. The Client must give its full cooperation to Geek Patrol in any investigation that may be carried out by Geek Patrol regarding a security violation.
    8. If the Client is providing any Service to third parties that makes use of the Geek Patrol System, the Client must contractually bind those third parties to equivalent terms regarding security as are set out in this clause.
    9. Geek Patrol may on prior written notice to the Client inspect the Client’s installation and Client Equipment located on Geek Patrol’s premises to ensure compliance with the building regulations and restrictions agreed between the parties.
  15. Suspension or Terminations of Service
    1. Geek Patrol may, subject to this Agreement or Acceptable Use Policy, suspend or terminate Services of a Client in its absolute discretion by providing email notice if:
      1. the Client commits a serious or repeated breach of the Agreement or the Client engages in any conduct which in Geek Patrol’s opinion would have a negative impact on Geek Patrol, other clients or Geek Patrol’s staff or is detrimental to the welfare, good order or character of Geek Patrol; or
      2. any part of the Fees is not paid in full when due; or
      3. the information the Client supplied to Geek Patrol is found to be incorrect or false;
      4. Geek Patrol has reasonably to believe that the Client’s use of the Services may result in the commission of a crime or is otherwise unlawful.
    2. Geek Patrol reserves the right to effect such suspension or termination without notice, depending on the severity of the breach, but will undertake to inform Clients where possible. Upon such suspension or termination, such Clients:
      1. will not be eligible for reimbursement/compensation, unless at Geek Patrol’s discretion;
      2. may be further barred from signing up for any Services with Geek Patrol in the future;
      3. may be reported to governing bodies, such as ISPA, for listing purposes; and
      4. may be listed with applicable authorities and credit bureaus.
    3. The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
  16. Limitation of Liability and Indemnity
    1. GEEK PATROL WILL NOT BE LIABLE TO THE CLIENT OR ANY THIRD PARTY IN RESPECT OF ANY AND ALL DAMAGES, LOSS, CLAIMS OR COSTS, OF WHATEVER NATURE, AND INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES SUFFERED BY THE CLIENT OR THIRD PARTY, HOWSOEVER ARISING, AND GEEK PATROL WILL MOREOVER NOT BE LIABLE WHETHER THE LOSS WAS THE RESULT OF THE ACT OR OMISSION OF A GEEK PATROL EMPLOYEE, VICARIOUS OR STRICT LIABILITY.
    2. In the event that Geek Patrol is nonetheless held liable, the quantum of Geek Patrol’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss, in the preceding 3 (three) months, regardless of whether the claim arises out of negligence on the part of Geek Patrol or any other cause.
    3. USE OF THE SERVICES INDICATES THAT THE CLIENT INDEMNIFIES AND HOLDS HARMLESS GEEK PATROL IN RESPECT OF ANY DAMAGES, LOSS OR COSTS, OR CLAIMS INSTITUTED AGAINST GEEK PATROL ARISING FROM ANY APPLICATION OR SUBSCRIPTION TO OR USE OF ANY SERVICE OR BREACH OF THE TERMS AND CONDITIONS APPLICABLE TO IT.
    4. These limitations on liability and indemnities apply to the benefit of Geek Patrol and Geek Patrol’s affiliates, directors, officers, employees, contractors, agents and other representatives, as well as any third parties whose networks are connected to the Geek Patrol System.
    5. Nothing contained in this clause will limit the Client’s liability in respect of charges incurred for ongoing Services.
    6. If the Consumer Protection Act 68 of 2008 is applicable to this Agreement, and any provision of this clause is found by a court or tribunal with jurisdiction over Geek Patrol 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 will have full force and effect.
    7. In the case of ambiguity, this clause will take precedence over any expression of the parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
  17. Force Majeure
    1. Geek Patrol 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 Geek Patrol, provided that Geek Patrol makes all reasonable efforts to perform.
    2. It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of Geek Patrol and the force majeure provisions shall apply:
      1. a PSTS provider fault that affects the Service/s;
      2. the non-performance, inability to perform or delay in performance by the PSTS provider relating to the provisioning of equipment, services and/or facilities to Geek Patrol that affects the Service/s; and/or
      3. acts or omissions of any government, government agency, provincial or local authority 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 or fire.
  18. Notices
    1. All requests by the Client for the provisioning, modification or termination of Services, and for modification of contact and other Personal Information must be made in writing and Geek Patrol reserves the right to ignore any such request made in any other manner.
    2. The parties choose their addresses where they will accept service of any notices/documents for all purposes (apart from as described in the clause above) arising from this Agreement (domicilium citandi et executandi).
    3. Either party may vary its given postal address or other contact details by notifying the other party in writing.
    4. Any notice given in terms of this Agreement must be in writing and any notice given by any party to another (“the addressee”) which:
      1. is delivered by hand will be deemed to have been received by the addressee on the date of delivery; or
      2. if sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax and if outside such Business Hours then at the beginning of the next Business Day; or
      3. is transmitted by email will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee; or
      4. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its chosen postal will be deemed to have been received by the addressee on the 7th (seventh) day after the date of posting.
    5. Despite the above:
      1. any notice that Geek Patrol sends by email to an email account hosted on the Geek Patrol System by the Client will be deemed to have been received by the Client on the date of transmission; and
      2. if a written notice or communication is actually received by one of the parties from the other, this will be adequate written notice or communication to that party.
  19. Notification of Infringements
    In terms of section 75 of the Electronic Communications and Transactions Act (“the Act”) East Coast Access has designated the Internet Service Providers’ Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the Act.

    Internet Service Providers’ Association (ISPA)
    Address: PO Box 518, 
Noordwyk, 
1687
    Telephone: 010 500 1200
    Email: takedown@ispa.org.za

     

  20. Interpretation & General
    1. Whole Agreement: This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to by both parties will be of any effect.
    2. Applicable Law & Jurisdiction: The law of the Republic of South Africa will apply to this Agreement, its interpretation and any matter or litigation relating to or arising from it, and the parties consent to the jurisdiction of the courts of Republic of South Africa in this regard.
    3. Governing Law And Jurisdiction: 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 by a South African court having jurisdiction.
    4. Survival: For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty extending beyond the termination or expiry of this Agreement will survive the termination or expiry of this Agreement and continue in full force and effect.
    5. No Indulgence: If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still be enforceable.
    6. Representatives: 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.
    7. Reading Down: If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
    8. Severance: In the event that any part of this Agreement is found to be partially or fully unenforceable because it does not comply with any law, or for any other reason, this will not affect the application or enforceability of the remainder of this Agreement.