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1. By using the www.TheFACTORY.co.za website, you are agreeing, without limitation or qualification, to be bound by, and to comply with, these Terms and Conditions and any other posted guidelines or rules applicable to any individual www.TheFACTORY.co.za Web site, Product or Service. All such guidelines and rules are hereby incorporated by reference into the Terms and Conditions. 2. TheFACTORY will not be liable for any direct, indirect, consequential, special or other damages resulting from your use of this website or any links contained in this website. 3. You expressly indemnify TheFACTORY, its subsidiary (s) and/or affiliated companies, the directors, the employees and agents of TheFACTORY and/or its affiliated and/or subsidiary companies from any actions, damages, liabilities and costs, including all legal costs, arising from any breach of these terms& conditions or from trade mark or copyright infringement or any violation of personal property or privacy rights. 4. We may update the Terms and Conditions from time to time without notice to you. You can review the most current version of the Terms and Conditions at any time. It is your responsibility to check these Terms and Conditions regularly to ensure that you agree with them. If you do not agree with any of these Terms and Conditions, you may not continue to use this website. 5. Should you breach any of these Terms and Conditions, you will be solely responsible for any damages, liabilities or claims arising as a result of your actions. 6. TheFACTORY is not responsible for the consequences of your actions on this website, particularly when you make your personal information available. 7. You may not distribute materials protected by copyright or trademark law without the express permission of the owner of the copyright and/or trademark. This means that you may not share files such as mpeg's, gif's, tif's, jpeg's or mp3's etc. 8.0 Where you are required to make your personal information available, this information will be used for the specified intended purpose only and will be kept confidential. Information may, however, be used to send promotional material and for marketing and advertising purposes. 9. While using this website you may not: 10. TheFACTORY website contains links to other Internet sites. No inference can be made or representation implied that TheFACTORY is connected with, operates or controls these linked web sites. Whether or not these linked sites are in fact affiliated with TheFACTORY, TheFACTORY is not responsible for the content on the aforesaid sites. The linked sites are for the users convenience only and the user access thereto is at the users own risk. When visiting linked sites the user must refer to that linked site's individual terms of use. 11. If you do not comply with these Terms and Conditions you may not access or use this website. 12. Please review our other notices, such as our disclaimer and Intellectual Property Notices, posted on this site. These notices also govern your visit to www.TheFACTORY.co.za . We reserve the right to make changes to our site, policies, and these Terms and Conditions. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining Terms and Conditions. 13. By visiting www.TheFACTORY.co.za, you agree that the laws of the Republic of South Africa, without regard to principles of conflict of laws, will govern these terms and conditions and any dispute of any sort that might arise between you and TheFACTORY or its affiliates. 14. The 'Disclaimer', 'Copyright and Trademark Notices' are incorporated in these Terms and Conditions by reference. TheFACTORY services A. ACCEPTANCE OF ORDER A. ACCEPTANCE OF ORDER B. PROVISION OF THE SERVICE 2. Notwithstanding the provisions of b1, the customer acknowledges that in the normal course of provision of service(s), temporary interruptions may occur for whatever reason. in the circumstances, TheFACTORY shall not be held liable for any damages (economical or otherwise) which the customer may suffer as a result of such interruption of service(s). 3. The customer shall solely be responsible, unless otherwise stated in this agreement, for provisioning, configuration and maintenance of all equipment on its premises, including (without limitation) computer hardware equipment, telecommunication equipment and modems necessary and required by the customer to exercise its rights and enjoy the services provided herein. C. PAYMENT 2. The charges may be varied by TheFACTORY from time
to time in the following circumstances: 3. All access charges that entitle the customer to obtain access to the services subscribed for, shall be payable in the manner as set out in this agreement and where such charge is indicated as- 4. Rental charges: levied periodically, usually on a monthly basis, and subject to a minimum rental period of one calendar month or as determined by Telkom from time to time for each Service. Rental charges are payable in advance for the first and any subsequent rental period, as from the date on which the Service is established. Where the Customer requests the termination of a Service the rental amount, if any, paid for a period after the official date of termination will be credited to the Customer. If the Customer requests that a Service be terminated prior to the expiry of the minimum rental period, the non-expired part of the rental period will stay in force. In such cases the Customer shall remain liable for the rental for the non-expired part of the rental period. 5. Any payment due to TheFACTORY not made on the due date thereof shall bear interest at a rate of 2% (two percent) above the prime bank overdraft rate as charged by TheFACTORY’s bankers from time to time, calculated from the date payment was due until date of actual payment in full, capitalised monthly in arrears. 6. The customer shall, on demand, pay to TheFACTORY all costs and expenses incurred by TheFACTORY in enforcing the terms of this agreement, including without limitation legal costs on an attorney and own client basis. 7. Should the bank dishonour any payment offered by the customer to TheFACTORY, TheFACTORY shall be entitled, over and above the dishonoured payment as well as bank charges, to charge and the customer shall be obliged to pay a reasonable administration fee. 8. Should the customer change from one product to another or add any services to existing product, The FACTORY shall be entitled to charge and the customer shall be obliged to pay a reasonable administration fee. D. INSTALLATION AND CONNECTION E. LIABILITY 2. TheFACTORY shall under no circumstances be liable (including liability for negligence) for any loss, damage or injury that the customer or any third party may suffer, no matter when or how arising, specifically including (but without limitation) refunds of fees, loss of profits, financial loss, loss of contracts, loss of income, loss of anti-cipated business, cost of replacement services, savings use, goodwill or any other form of consequential loss. 3. Any service(s) provided herein is provided on an "as-is" basis and TheFACTORY makes no express or implied warranties or representations of whatsoever nature with respect to any such service. 4. The customer shall and hereby does indemnify TheFACTORY
5. Under no circumstances whatsoever will TheFACTORY’s liability, if any and whether incontract or otherwise, exceed the aggregate of the amounts actually paid by the customer to TheFACTORY . F. USE LIMITATIONS The customer hereby agrees - 2. that it shall make use of the services in a responsible, prudent, lawful and honest manner; 3. that it shall comply with any directions, instructions and limitations issued or notified by TheFACTORY from time to time in connection with the services; 4. that it shall not use any service in a manner which
- 5. that the services to be rendered to the customer shall be as defined and subject to such limitations as may be notified from time to time by TheFACTORY; 6. that the customer is aware of the limitations of all relevant services and that service quality and coverage available shall be limited to that supported by the infrastructure of TheFACTORY, its network providers and TheFACTORY and that service may from time to time be adversely affected by a number of different causes: 7. that it shall not commit any act or omission which may have an adverse technical effect on the integrity or functionality of the network infrastructure of TheFACTORY or that provided or made available to the customer by or through TheFACTORY. If any act or omission of the customer has such an adverse technical effect the customer shall, on receiving notification to that effect from TheFACTORY, forthwith take such steps as may be necessary to rectify the situation at his own cost and expense, failing which TheFACTORY shall be entitled, without prejudice to its other rights in terms hereof or at law, to forthwith suspend the service and/or terminate this agreement; 8. that unless otherwise agreed by TheFACTORY in writing, it shall not resell or make available to third parties, in any manner whatsoever and whether directly or indirectly, the services provided to it by TheFACTORY ; 9. that it shall take whatever steps may be necessary to ensure the safekeeping and confidentiality of all identification codes and passwords furnished by TheFACTORY for use by the customer and shall specifically not disclose same to any third party without TheFACTORY’s prior written consent. 10. to comply with the rules and regulations applicable to any network that is accessed through TheFACTORY ; 11. that where it is outside the Republic of South Africa and wishes to connect to the internet, such connection may be subject to the terms and conditions of a Global Service Provider ("GSP"). The customer has been informed of and acknowledges that the GSP is not affiliated to TheFACTORY . G. SUSPENSION OF SERVICE 2. Notwithstanding any suspension of service under this clause G, the customer shall remain liable for all charges due hereunder throughout the period of suspension unless TheFACTORY, in its sole discretion, determines otherwise. H. TERMINATION 2. Without prejudice to any other rights or remedies which TheFACTORY may have in terms hereof or at law, TheFACTORY shall be entitled to forthwith cancel this agreement and discontinue the service if the customer fails to comply with any of the terms or conditions of this agreement or any other agreement made between TheFACTORY and the customer. 3. Upon termination of this agreement TheFACTORY shall disconnect the customer from the networks of TheFACTORY and all its network providers. 4. After disconnection of the customer upon termination of this agreement, the customer shall on demand pay all charges outstanding at the time of disconnection, including any disconnection fee, which may be charged by TheFACTORY. 5. Upon termination due to any breach of this agreement by the customer, TheFACTORY shall be entitled to claim damages. I. EXCUSABLE EVENTS J. ALTERATION K. SUPPORT SERVICE 2. TheFACTORY shall, as part of such service, identify the customer's problem, but does not give any warranty, guarantee or any other similar undertaking that it will be able to rectify all or any of the problems so identified. 3. The customer shall- 4. TheFACTORY does and shall not accept any responsibility or liability for any existing data on the customer's equipment and shall specifically not be required to back-up any data before commencing any work. The customer hereby indemnifies and holds TheFACTORY harmless against any cost, liability, loss or damage incurred or suffered by the customer or by TheFACTORY as a result of the loss of any such data, whether occasioned by any act or omission of TheFACTORY, its representatives, agents or employees or otherwise. 5. Consultation time charged for will commence when the relevant TheFACTORY agent, representative or employee leaves TheFACTORY office and will end when he returns to TheFACTORY office. The customer will be charged should the consultant for any reason whatsoever not be able to obtain access to the customer's premises or equipment. L. GENERAL 2. The terms and conditions as set out herein, constitute the entire agreement between TheFACTORY and the customer and supersede all representations made to the customer, all amendments effected by the customer to any application form or other similar document submitted by him and all communications between TheFACTORY and the customer relating to the subject matter hereof. 3. The customer chooses, as his domicilium citandi et executandi, the physical address set out in "Customer Details" in this agreement. 4. TheFACTORY reserves the right to amend these terms and conditions from time to time and shall notify the customer of such amendments. 5. This agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. 6. The clause headings in this agreement are for the purpose of convenience only and shall not be taken into account in the interpretation of nor modify the terms of this agreement. Unless inconsistent with or a contrary intention clearly appears from the context words importing any reference to a gender includes the other genders, any reference to the singular includes the plural and vice versa, and any reference to natural persons includes legal persons and vice versa. 7. If any clause or clauses of the terms and conditions of this agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the remainder of the terms and conditions of this agreement shall remain valid and enforceable. M. INTELLECTUAL PROPERTY 2. Should TheFACTORY be required to develop any computer code, data, documents, presentations, solutions design, web site or any application ("the work"), then all intellectual property rights in and to such work shall vest exclusively in TheFACTORY. To the extent that intellectual property rights in the work vests, for whatever reason, in the customer, the customer hereby agrees to assign all such intellectual property rights to TheFACTORY which hereby accepts such assignment. 3. Save as provided for in this agreement, any license granted to the customer in terms of this agreement shall be for singular user only. The customer shall be obliged to pay a license fee for multiple use. 4. The customer shall not modify or use any software, computer code, data, documents, presentations, solutions design, web site or any application licensed to it in terms of this agreement, to create a derivative work. N. ACCEPTABLE USE POLICY 1. INTRODUCTION 2. GENERAL 3. USENET POSTINGS 4. ACCOUNT AND NETWORK SECURITY 5. ELECTRONIC MAIL 6. PROTECTION OF NETWORK PERFORMANCE 7. PAYMENT 8. THIRD PARTY INTERNET RELAY CHAT (IRC) 9. ILLEGAL ACTIVITY Important Note: This document will be updated frequently. Please make a habit of reviewing it from time to time to stay abreast of the content thereof. This document has been created by TheFACTORY and is protected by copyright. The contents or part thereof may not be used or copied in any way without prior permission. 1 INTRODUCTION It is our intention to allow TheFACTORY customer's access to everything the Internet has to offer with minimal or no interference. Our belief in free speech is a firm commitment to our customers. However, certain activities are considered inappropriate by the Internet community at large and cannot be permitted under the guise of free speech. Save as may be set out herein, we do not monitor the activity of accounts except for measurements of system utilization and billing records. However, in our efforts to promote good citizenship within the Internet community, if we become aware of inappropriate use of our service, we will respond appropriately. If a TheFACTORY account is used to violate the Acceptable Use Policy, we reserve the right to terminate the service without notice. Our preferred course of action is to advise the customer of the inappropriate behaviour and any corrective action that is necessary. However, flagrant violations of the Acceptable Use Policy will result in immediate termination of service. Our failure to enforce this policy, for whatever reason, shall not be construed as a waiver of our right to do so at any time. As a member of our network community, we encourage you to use your Internet access responsibly. Should you have any questions regarding this policy, feel free to contact us at 021 409 7880 Reports of activity in violation of this policy may be sent via e-mail to info@TheFACTORY.co.za. 2 GENERAL In general, remember that you may not use your TheFACTORY account - in a manner which violates rules, regulations and policies
applicable to any network, server, computer database, web site or Internet
Service Provider ("ISP") that you access through your Internet
account; 3 USENET POSTINGS Your TheFACTORY account gives you access to thousands of USENET newsgroups. These newsgroups allow you to read and post messages on a variety of topics. USENET newsgroups may be moderated or unmoderated. Newsgroups may also have a charter or a FAQ that describes what posts are appropriate. Misuse of USENET may result in the termination of your service. TheFACTORY provides an uncensored news feed. As such, TheFACTORY does not control the content of the newsgroups available to you. TheFACTORY believes that decisions about which newsgroups and messages to read are best left to its customers. Screening software is available from third parties, and it is your responsibility to use such tools if desired. TheFACTORY is not responsible for the content of any USENET posting, whether or not a TheFACTORY customer or employee made the posting. Postings to USENET newsgroups must comply with the written charters or FAQs for those newsgroups. Advertisements, solicitations or other commercial postings should only be posted in those newsgroups whose charters/FAQs explicitly permit them. You are responsible for determining the policies of a given newsgroup prior to posting to it. If you are unable to find a newsgroup's policy regarding commercial posts, you must assume that such postings are not welcome. You may not post or cross-post the same or substantially similar message to more than 10 (ten) newsgroups. Continued cross posting can result in termination of service and the removal of the articles from the newsgroups. You are prohibited from posting binary files to newsgroups not specifically named for that purpose. You are prohibited from posting messages promoting pyramid schemes, "Make Money Fast" (MMF) schemes, chain letters, or other schemes to USENET newsgroups. Doing so will result in immediate termination of service. You are prohibited from forging or removing header information. This includes attempting to circumvent the approval process for posting to a moderated newsgroup. You may not solicit mail for any address other than your TheFACTORY Service account or service where doing so manifests intent to harass others. You may not post USENET messages for the purpose of threatening, harassing or intimidating other USENET newsgroup users. You may not post messages that infringe on personal or property rights of others (e.g., privacy rights, copyrights). You may not cancel posts other than your own, with the exception of official newsgroup moderators performing their duties. TheFACTORY does not censor or control content posted to a USENET newsgroup. As a user of our service, you are solely responsible for the content that you publish. TheFACTORY, upon receiving notification that certain postings violate this policy, or any law or regulation currently in force, or infringe on the trademark or copyrights of another, reserves the right to remove posts from our news server and to terminate your Internet account. 4 ACCOUNT AND NETWORK SECURITY You may not attempt to circumvent user authentication or security of any host, network or account ("cracking"). This includes, but is not limited to, accessing making use of a server or account you are not expressly authorized to access, or probing the security of other networks. Use or distribution of tools designed for compromising security is prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools. You may not attempt to interfere with service to any user, host, or network ("denial of service attacks"). This includes, but is not limited to, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host. Users who violate systems or network security may incur criminal or civil liability. TheFACTORY will co-operate fully with investigations of violations of systems or network security at other sites, including co-operating with law enforcement authorities in the investigation of suspected criminal violations. 5 ELECTRONIC MAIL Use of your e-mail account to send unsolicited bulk or commercial messages is prohibited. This includes, but is not limited to, bulk-mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such material may only be sent to those who have explicitly requested it. Using an TheFACTORY address to collect responses from unsolicited bulk or commercial e-mail is prohibited. Sending mass unsolicited mail or deliberately sending very large messages or files to one or more recipients ("mail bombing" “SPAM”) is prohibited. Forging or removing e-mail headers is prohibited. Use of e-mail to harass or intimidate other users is prohibited. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail from you, you must not send that person any further messages. You may not forward or otherwise propagate chain letters, whether or not such messages solicit money or other items of value, and whether or not the recipient wishes to receive such mailings. TheFACTORY accounts may not be used to collect replies to messages sent from another ISP, where those messages violate this Acceptable Use Policy or the Acceptable Use Policy of the other ISP. TheFACTORY reserves the right to delete messages or files which have remained on its servers for excessive periods of time as determined by TheFACTORY, in its sole discretion. Each customer account will be provided an amount of storage for e-mail as determined by TheFACTORY from time to time in its sole and absolute discretion. If your account exceeds this space, all messages over 30 (thirty) days old will be deleted. 6 PROTECTION OF NETWORK PERFORMANCE The sending of excessive numbers of e-mail or excessively large files which, in TheFACTORY’s sole opinion, negatively affects the performance of the network or any server on the network may result in deletion of the offending message or file, and may result in the termination of services. You may not provide network services from your dial-up account (for example, you may not use your dial-up account to operate as an FTP server). TheFACTORY accounts operate on shared resources. You are prohibited from excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other customers or the performance of TheFACTORY systems or networks. TheFACTORY reserves the right to terminate or limit such activities. · At no time may there be simultaneous use of the same user-id and password combination. You may not employ automated electronic or mechanical processes designed to defeat network inactivity time-outs. Such tools include, but are not limited to, use of an auto-dialer and repetitive pinging the host. 7 PERSONAL HOME PAGES You are solely responsible for any information contained on your personal home page. However, if complaints are received regarding language, content or graphics contained on your personal home page, TheFACTORY may, at its sole discretion, remove the personal home page and/or terminate your personal home page service. You may not use your personal home page space to publish material which TheFACTORY determines, at its sole discretion, to be unlawful, indecent or objectionable. For purposes of this policy, "material" refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings. "Unlawful content" is that which violates any law, statute, treaty, regulation, or lawful order. This includes, but is not limited to obscene material; defamatory, fraudulent or deceptive statements; threatening, intimidating or harassing statements, or material which violates the privacy rights or property rights of others (e.g., copyright or trademarks). "Indecent content" is that which depicts sexual or excretory activities in a patently offensive matter as measured by contemporary community standards. "Objectionable content" is otherwise legal content with which TheFACTORY concludes, in its sole discretion, it does not want to be associated with in order to protect its reputation and brand image, or to protect its employees, shareholders and affiliates. Examples of prohibited personal home page content - Materials that suggest or depict obscene, indecent, vulgar, lewd or erotic behaviour, and which lack serious literary, artistic, political or scientific value. Materials which encourage the commission of a crime; or which tends to incite violence; or which tends to degrade any person or group based on sex, nationality, religion, colour, age, marital status, sexual orientation, disability or political affiliation. 8 THIRD PARTY INTERNET RELAY CHAT (IRC) 9 ILLEGAL ACTIVITIES Transmitting obscene materials; intentionally spreading or threatening to spread computer viruses; gaining or attempting to gain unauthorized access to private networks including TheFACTORY’s private network infrastructure; accessing or attempting to access information not intended for the customer; engaging in the transmission of pirated software; and, conducting or participating in illegal gambling, soliciting for illegal pyramid and other schemes through electronic mail or USENET postings. Transmitting obscene materials; intentionally spreading or threatening to spread computer viruses; gaining or attempting to gain unauthorized access to private networks including TheFACTORY’s private network infrastructure; accessing or attempting to access information not intended for the customer; engaging in the transmission of pirated software; and, conducting or participating in illegal gambling, soliciting for illegal pyramid and other schemes through electronic mail or USENET postings. © Copyright TheFACTORY Cape Town 2003 |