LAWS AND REGULATIONS
ADSL BANDWIDTH USAGE
GAMCO reserves the right, to take necessary steps, to prevent improper or excessive usage. This action includes, but is not limited to:
This policy applies to and will be enforced for intended and unintended prohibited usage (e.g., viruses, worms, generating of spam, malicious code or otherwise unknown causes).
Online activity will be subject to the available bandwidth, data storage and other limitations of the ADSL access service.
SYSTEM AND NETWORK SECURITY
Any one or more of the steps listed above, insofar as they are deemed necessary by GAMCO in its absolute and sole discretion, may be taken by GAMCO against the offending party.
The User acknowledges that GAMCO is lawfully required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication -related Information Act 70 of 2003 (“the Act”). Any interception of communications shall be strictly in accordance with the requirements of the Act, as and when required under the Act.
The User undertakes to use GAMCO’s services in accordance with any restrictions imposed under the following legislation:
All cases of violation of the above Acceptable Use Policy should be reported to abuse@GamCo.co.za.
USAGE GUIDELEINES AND ACCEPTABLE USE
To help ensure that all customers have fair and equal use of the service and to protect the integrity of the network, Internet Solutions reserves the right, and will take necessary steps, to prevent improper or excessive usage thereof.
The action that Internet Solutions may take includes, but is not limited to:
This policy applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited usage.
Online activity will be subject to the available bandwidth, data storage and other limitations of the ADSL access service, which Internet Solutions may, from time to time, revise at its own discretion and without prior notice to the customer.
Examples of use, which may result in excessive data transfer, include, but are not limited to:
Activity:Downloading large files or large quantities of files
Downloading files such as movies, MP3s, games and software using software such as Napster, Kazaa, E-donkey etc.
How to minimise this type of usage:
Refrain from using automated download programs. You may not install automated search and retrieve programs or similar automated and manual routines, which generate excessive amounts of network traffic
Activity: On-Line Gaming
On-line gaming can average data transfer of between 10 – 60 Mb per hour.
How to minimise this type of usage:
Limit the usage of data transfer when playing games on line. Alternatively use local gaming sites
Activity: Mail / News Groups / CHAT
e-Mail, Newsgroups and Chat clients are used to communicate online, however when files with suffix of “avi”, “jpeg”, “mpeg”, “gif”, etc are sent to customers they can contain very large amounts of data.
How to minimise this type of usage:
Be careful when subscribing to sites, which automatically send information with large attachments. Be aware of “background download” programs.
Customers who do not protect their equipment by using a firewall or proxy server create a possibility for remote access to the PC, which may, by using the use of various programs,
determine their username and passwords or the PC can be used to transfer data via the owner’s account.
How to minimise this type of usage:
Secure your PC by setting up a firewall or proxy server.
Use Automated copying of website content can result in high usage levels.
How to minimise this type of usage:
Manually select the content that needs to be copied.
NO PROHIBITED USAGE OF THE NETWORK
Customers may not engage in any activity that compromises or threatens Internet Solutions’ ability to provide the ADSL access service in a reasonable and efficient manner to all other customers.
Examples of prohibited use include, but are not limited to, running servers (that put traffic on the network) and hosting multi-user interactive forums, such as chat rooms.
The ADSL access service may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is o bscene, defamatory, constitutes an illegal threat, or violates export control laws.
Violations of system or network security are prohibited, and may result in criminal and civil liability.
Internet Solutions will investigate incidents involving such violations and may involve, or will cooperate with, law enforcement agencies if a criminal violation is suspected.
Examples of system or network security violations include, without limitation, the following:
DOWNLOAD LIMITATIONS AND TECHNICAL MEASURES TO PREVENT ABUSE OF THE ADSL ACCESS SERVICE
Internet Solutions strictly reserves all of its right to implement appropriate technical mechanisms in order to prevent usage patterns in violation of this AUP.
Internet Solutions further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not being limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
Nothing contained in this policy shall be construed to limit Internet Solutionâï¿½ï¿½s rights or remedies in any way with respect to any of the aforegoing activities, and Internet Solutions reserves the right to take any action that it may deem appropriate with respect to such activities, including without limitation:
In addition, Internet Solutions reserves all available rights and remedies with respect to such activities at law or in equity.
This AUP may be clarified or modified periodically and Internet Solutions reserves the right to modify this policy at any time, any such changes coming into effect as soon as they are published on the Internet Solutions website (www.GamCo.co.za). This policy forms part of the customer’s agreement with Internet Solutions regarding the ADSL access service.
This Agreement sets out the terms and conditions under which GamCo will provide and the Customer will receive the Services (as defined below) details of which are set out in the Service Order Form of even date which has been signed by the Customer and accepted by GamCo. This Agreement should be read in conjunction with the Acceptable Use Policy and Privacy Statement.
In this Agreement the following words and expressions shall have the following meanings :
“Acceptable Use Policy” means the rules for hosting at GamCo which can be found at https://gam.co.za/legal/acceptable_use_policy.asp
“Fees” means all fees payable by the Customer to GamCo for the Services as set out in the Service Order Form
“Initial Term” means the minimum term for which GamCo will provide the Services
“One Time Install Fee” means the one off charge made by GamCo as set out on the Service Order Form or as otherwise agreed in writing between the parties
“Professional Services” means any non-standard professional consulting or support services provided by GamCo to the Customer including but without limitation.
“GamCo Rules and Regulations” means without limitation this Agreement, the Acceptable Use Policy and the Service Level Agreement
“GamCo Technology” means GamCo’s proprietary technology including without limitation the Services, software tools, hardware designs algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, database rights, trademarks registered or unregistered and documentation (both printed and electronic) network designs know-how trade secrets and any related intellectual property rights throughout the world (whether owned by GamCo or licensed to GamCo from a third party) and also including any derivatives improvements enhancements or extensions of GamCo Technology conceived reduced to practice or developed during the term of this Agreement by GamCo
“Renewal Term” means any term following the Initial Term
“Servers” means the servers provided by GamCo for providing the Services to the Customer
“Service Order Form” shall mean the order form which has been signed by the Customer specifying inter alia the Services to be provided by GamCo which order form is to be read in conjunction with the terms herein
“Services” means the standard services, Professional Services and Supplemental Services provided by GamCo to the Customer as set out in the Service Order Form
“Service Commencement Date” means the date on which GamCo will commence providing the Services to the Customer being the date GamCo generates an e-mail to the Customer which includes the information required to allow the Customer to send and receive information to and from the Servers
“Service Levels” means the service level commitments by GamCo.
“Supplemental Fees” means all fees payable by the Customer to GamCo in respect of Supplemental Services, or Professional Services including without limitation reinstatement of service fees, fees for switching or upgrading servers, additional bandwidth fees all of which fees shall be in accordance with GamCo’s then current prices and pricing policy
“Supplemental Services” means the provision of certain limited services and equipment needed by the Customer on a “one-off” or emergency basis where such services are not included within the scope of the Services as set out in the Service Order Form
2. Acceptance and Delivery
This Agreement comes into force once the Customer has completed and signed the Service Order Form and returns the same to GamCo and the Service Order Form is countersigned and accepted by an authorised representative of GamCo contingent only upon credit approval of the Customer being obtained by GamCo. Communication of this acceptance will be given to the Customer by GamCo generating an e-mail to the Customer which includes the information required to allow the Customer to send and receive information to and from its servers. For the avoidance of doubt by signing and returning the Service Order Form to GamCo the Customer agrees to be bound by the terms and conditions set out in this Agreement.
3. Fees and Provision of Services
3.1 The Customer hereby authorises GamCo to perform the Services throughout both the Initial Term and any Renewal Term and agrees to pay the Fees for the same.
3.2 The Customer hereby agrees to pay the Supplemental Fees for the Supplemental Services throughout both the Initial Term and any Renewal Term.
3.3 GamCo shall use all reasonable endeavors to provide the Services to the Customer and subject to the terms of this Agreement and in particular this clause 3, in accordance with the Service Levels.
3.4 GamCo reserves the right to make operational changes to the Services and URL’s and to control, direct and establish technical procedures for the use of the Services and the Customer agrees to follow the reasonable instructions and procedures of GamCo with respect to the use of the Services.
3.5 GamCo shall use reasonable endeavors to maintain a 24 hour Internet presence for the Customer’s website but cannot guarantee continuous, uninterrupted use especially where GamCo must carry out routine maintenance, repairs, reconfigurations or upgrades or in circumstances beyond its control including force majeure. In the event of network downtime GamCo shall only be liable for up to one months Fees for the Servers affected but shall not otherwise be liable for failing to provide the Service.
3.6 The benefit of the Service Levels will not apply where the Customer is in breach of any of the terms of this Agreement including but not limited to the payment terms, or if the Customer fails to follow GamCo’s Rules and Regulations.
3.7 The Customer shall be responsible for obtaining and maintaining their own compatible computer system being all such equipment, software and communications lines, including any public lines required by the Customer properly to access the Customer’s website. GamCo has no responsibility for or liability with respect to any equipment belonging to the Customer.
3.8 The Customer agrees and acknowledges that GamCo’s business continuity plan is solely for GamCo’s own internal systems. GamCo’s business continuity plan is not intended to replace the Customer’s own business continuity plan. GamCo can aid the design and implementation of Customer specific business continuity plans if required by the Customer. Such design and implementation will be subject to terms and conditions outside this Agreement agreed in writing between the parties;
4.1 Term The Initial Term of this Agreement will commence on the Service Commencement Date.
4.2 Upon the expiration of the Initial Term the terms and conditions of this Agreement shall be automatically extended until either party gives to the other not less than 30 days notice of termination in writing or GamCo otherwise terminates the agreement in accordance with the terms herein.
4.3 Termination by the Customer of any particular Service will not affect the Customer’s obligation to pay for the remaining Services.
5. Payment Terms
5.1 On the Service Commencement Date GamCo shall issue to the Customer an invoice in respect of all non-recurring charges and the monthly recurring charges in respect of the first month of the Initial Term or part thereof details of which are set out in the Service Order Form.
5.2 Thereafter GamCo shall issue to the Customer an invoice in respect of all monthly recurring charges shown in the Service Order Form on the first day of each month of the Initial Term and any Renewal Term.
5.3 GamCo shall issue to the Customer an invoice in respect of all Supplemental Fees either forthwith upon the Supplemental Services being provided or at the end of the month in which the Supplemental Services are provided.
5.4 All payments will be made by the Customer to GamCo in Rands or any other currency as agreed in writing between the parties at the exchange rate prevailing at the date of the invoice.
5.5 GamCo reserves the right to vary the Fees and/or amend its payment terms or billing practices as set out in this Agreement by giving the Customer not less than 30 days prior written notice to take effect on the last day of the month following the month in which such notice is given.
5.6 Payment of all invoices issued by GamCo to the Customer shall become due forthwith upon receipt of the same by the Customer. If a sum due to GamCo remains unpaid for a period of 28 days after the invoice date GamCo shall be entitled to charge interest on such sum at the rate of 5% per annum from the date of the invoice until the date of actual payment and to withhold any or all of the Services until such time as payment of the said sum and any interest thereon and any sums due under clause 5.7 below are received by GamCo.
5.7 The Customer acknowledges that the Fees for the Initial Term (including the One Time Install Fee) represent a volume discount on GamCo’s normal published fees for set up and services. If, before the end of the Initial Term, (i) any sum due to GamCo remains unpaid for a period of 56 days after the invoice date, or (ii) Customer purports to terminate this Agreement, then, in addition to any other rights or remedies GamCo may have available to it, it shall be entitled to terminate this agreement forthwith and recover the Fees together with the amount of any volume discount applied to the Fees retrospectively from the Commencement Date up to the date of such termination
5.8 The Customer hereby agrees to indemnify GamCo in respect of all costs charges expenses and professional fees incurred by GamCo in exercising any of its rights under this Agreement in respect of any default or other breach by the Customer.
5.9 Where applicable GamCo will charge to the Customer Value Added Tax at the prevailing rate and all other relevant taxes levied in respect of this Agreement, the Services, the Fees and/or Supplemental Fees.
6. Ownership of Intellectual Property and Grant of Licence
6.1 The parties hereby agree that this Agreement shall not transfer from GamCo to the Customer any GamCo Technology and all rights title and interest in and to GamCo Technology will remain solely with GamCo. The Customer agrees and acknowledges that it will not at any time during the Initial Term or Renewal Term or at anytime thereafter directly or indirectly reverse engineer decompile disassemble or otherwise attempt to derive source code or other trade secrets from GamCo and/or its Third Party Vendors (as defined in this Agreement).
7.1 Unless specifically advised to the contrary on the Service Order Form GamCo will provide access to a Server to the Customer within 7 days or within the time limit as otherwise agreed in writing between the parties of the Service Commencement Date. GamCo shall be deemed to have provided such Server access upon generating an e-mail to the Customer which includes the information to allow the Customer to send and receive information to and from such Server.
7.2 In the event that GamCo fails to provide access to a Server as agreed in clause 7.1 GamCo will credit the Customer with a sum equal to the One-Time Install Fee unless the failure to provide access to Server is as a result of factors outside GamCo’s reasonable control any actions or failures of the Customer or any third party or as a result of the Customer’s equipment applications or facilities. This credit may be used against any part of the Fees other than the One Time Install Fee.
7.3 Each of the warranties referred to in clauses 7.1 and 7.2 above shall not apply if the Customer fails to follow GamCo’s Rules and Regulations or otherwise breaches this Agreement in any way.
7.4 The Customer agrees and acknowledges that the GamCo Technology used in the provision of the Services in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement by GamCo. In the event that the Customer notifies GamCo of a material error which substantially affects the Customer’s use of the Services, GamCo shall use all reasonable endeavors to correct by patch or new release (at its option) the defective part of the Services.
7.5 Although GamCo does not warrant that the Services or the GamCo Technology used in the provision of the Services will be free from all known viruses it has used all reasonable endeavors to check for the presence of viruses using the latest virus checking software.
7.6 Except for the express warranties set out in this Agreement all other warranties with respect to the Services and GamCo Technology either express or implied including but not limited to any implied warranties or merchantability or fitness for any particular purpose are hereby excluded to the extent permitted by law.
8.1 The Parties hereby agree that GamCo does not monitor or exercise control over the content of the information transmitted over its facilities. Use of the Services or any information that may be obtained from the Services is specifically at the Customer’s own risk. GamCo reserves the right but does not assume the obligation to monitor, intercept and delete any content belonging to the Customer or user’s of the Customer’s website for the purposes of ensuring that the Service’s are at all times used for lawful purposes.
8.2 The Parties hereby further agree that GamCo does not and cannot control the flow of information to or from GamCo’s own network and other portions of the Internet. Such flow depends on the performance of Internet services provided or controlled by third parties outside the control of GamCo whose actions or failures may impair or disrupt the Customer’s connections to the Internet or parts thereof.
8.3 The Customer agrees that the disclaimers in clauses 8.1 and 8.2 are fair and reasonable and accepts to be bound by the same.
9. Customer’s Obligations
9.1 The Customer represents and warrants to GamCo that where applicable he or she is at least 18 years of age and has the necessary authority to enter into this Agreement and carry out the various obligations and use of the Services required by the Customer under this Agreement.
9.2 The Customer acknowledges that in the course of providing the Services, GamCo will be required to electronically reproduce the Customer’s content. Services are provided subject to the condition that there will be no abuse or fraudulent use of them and therefore, the Customer undertakes that it shall at all times ensure that:
9.2.1 none of the Customer’s content and material in the Customer’s files, e-mails and postings is defamatory, illegal, obscene, infringes any third party’s intellectual property rights or otherwise would bring GamCo’s name into disrepute or breaches any laws, regulations or codes applicable to this Agreement. In the event of any breach or purported breach, GamCo will be entitled to permit any law enforcement or other relevant authority to inspect the same;
9.2.2 at all time that it’s use of the Services is in accordance with all applicable data protection and other laws, licences, international conventions, codes or regulations applicable to the Internet;
9.2.3 it does not carry out or engage in activities on its website which may:
18.104.22.168 be in breach of applicable laws, codes or regulations (including without limitation infringement of copyright and other intellectual property rights)
22.214.171.124 cause defamation;
126.96.36.199 involve theft, fraud, drug-trafficking, money-laundering and/or terrorism;
188.8.131.52 may incite violence, sadism, cruelty or racial hatred;
184.108.40.206 may facilitate prostitution or paedophilia; and
220.127.116.11 be pornographic, obscene, indecent, abusive, offensive or menacing.
9.2.4 it does not create or introduce intentionally or knowingly into the Service any virus, worm, trojan horse, cancelbolt or other destructive or contaminating program or advise any other party how to do so.
9.2.5 it uses an up to date virus-scanning program on all material downloaded from the Services.
9.2.6 it does not to interfere with or breach the privacy of other users of the Services or the Internet in general, including sending unsolicited e-mails (“spamming”) nor to collect or transfer personal data on individuals without their consent.
9.2.7 it maintains confidentiality of its login names, passwords and other confidential information relating to the Customer’s access to the Services (for the avoidance of doubt GamCo shall not be responsible for maintaining such confidentiality).
9.2.8 it does not to tamper with routing and domain name services in order to “spoof” other computer networks and users.
9.2.9 when it gives any payment or credit card information via the Services, to ensure that the same is accurate, complete and up-to-date and the Customer has the authority to give such information.
9.2.10 that it will not cause a breach of any agreements between GamCo and any third parties or unreasonably interfere with other GamCo customers’ use of GamCo services
9.3 The Customer agrees that at all times it will comply with the GamCo Rules and Regulations which shall be in force from time to time, and that it is the sole responsibility of the Customer to ensure that the information that it and its users transmit and receive complies with all applicable laws and regulations and the GamCo Rules and Regulations. GamCo may change the GamCo Rules and Regulations by giving 15 days’ notice of such change to the Customer by posting any amendments and alterations to the existing GamCo Rules and Regulations on GamCo website at www.gam.co.za/legal
10. Limitation of Liability
10.1 GamCo shall have no responsibility for and shall accept no liability in respect of the selection use and suitability of the Services and GamCo Technology by the Customer which shall be at the Customer’s sole discretion.
10.2 GamCo shall not be liable for any loss of data resulting from delays corruption of data non-deliveries mis-deliveries or service interruptions. Neither GamCo nor its network services supplier(as used by GamCo from time to time) shall be liable for any unauthorised access to GamCo’s or the Customer’s transmission facilities or premise equipment or for any unauthorised access to or alteration theft or destruction of a Customer’s data files programmes procedures or information through accident fraudulent means or devices or any other method provided that such damage does not occur as a result of GamCo’s or its Network Service Suppliers’ default or negligence.
10.3 In no circumstances shall GamCo be liable in contract tort (including negligence or breach of statutory duty) or otherwise howsoever caused for :
10.3.1 any increased costs or expenses;
10.3.2 any loss of profit business contracts revenues or anticipated savings; or
10.3.3 any special indirect or consequential damage of any nature whatsoever;
arising directly or indirectly out of the provision by GamCo of the Services or Supplemental Services or of any error or defect therein or of the performance non-performance or delayed performance by GamCo of this Agreement;
10.4 GamCo’s total aggregate liability (under contract, by negligence or any other way) for any direct loss or damage arising out of, or in connection with, the Services or this Agreement will not exceed the actual Fees received by GamCo during the previous 12 months of this Agreement.
10.5 Nothing in this Agreement excludes or limits the liability of GamCo for death or personal injury caused by its negligence or fraudulent misrepresentation.
11. Third Parties
11.1 GamCo may provide to the Customer access to other third party software and/or services (“Third Party Products”) through re-seller relationships that GamCo has established with such parties, including without limitation, Microsoft Corporation (“Third Party Vendors”). Unless otherwise notified, the Customer understands that product support for Third Party Products is provided by GamCo and not by the Third Party Vendor.
11.2 GamCo makes no representations and gives no warranties express or implied regarding any Third Party Products. The Customer expressly acknowledges and agrees that the use of Third Party Products is at the Customer’s sole risk and the terms of GamCo’s disclaimer as set out in clauses 8.1 and 8.2 above shall specifically apply to all Third Party Products and Third Party Vendors.
11.3 The Customer shall be fully liable to Third Party Vendors and GamCo with regard to any improper use of Third Party Products by the Customer or violation of licence agreements and or end user subscriber agreements entered into between the Customer and any Third Party Vendor.
12. Customer’s Indemnity
12.1 The Customer agrees to indemnify and hold harmless GamCo and all individuals or entities controlling controlled by or under common control with GamCo and their respective officers directors professional advisers agents and employees against any losses costs expenses claims damages liabilities penalties actions proceedings or judgments which they may become subject to relating to or arising from:
12.1.1 the infringement or misappropriation or alleged infringement or misappropriation of any intellectual property right including without limitation copyrights trade secrets patents trademarks or other proprietary rights related to any hardware or software utilised by the Customer or otherwise in connection with any of the Services or Supplemental Services;
12.1.2 any breach or violation of or failure to comply with this Agreement or the Rules and Regulations or any other policies of GamCo of which the Customer has been given notice;
12.1.3 any violation of any applicable law rule or regulation; and
12.1.4 any third party claims related to any content provided by the Customer or customers or clients of the Customer.
13.1 At the end of the Initial Term either party to this Agreement may terminate this Agreement without cause by giving to the other not less than 30 days’ notice in writing to expire at the end of that period whereupon all Fees and Supplemental Fees due by the Customer up to and including the date of termination will become due and payable forthwith by the Customer to GamCo.
13.2 In addition to its rights under clause 5.7, GamCo may by notice in writing immediately terminate this Agreement if the Customer shall:
13.2.1 breach this Agreement and in the case of a breach capable of being remedied shall not have remedied the same within 7 days of receipt of a notice from GamCo identifying such breach and requiring its remedy; or
13.2.2 be unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of GamCo means that the Customer may be unable to pay its debts.
13.3 Termination of this Agreement for whatever reason shall be without prejudice to any rights or obligations which have accrued prior to termination.
13.4 On termination of this Agreement for any reason all information of a confidential nature documentation and items issued by GamCo and in the possession of the Customer shall be promptly returned to GamCo and the Customer shall further relinquish any internet protocol numbers addresses or address blocks assigned to the Customer by GamCo or its network services suppliers (but not the URL or top level domain connected with the same). GamCo reserves in its sole discretion the right to change or remove any and all such internet protocol numbers addresses or address blocks.
13.5 In the event that this Agreement is terminated by GamCo pursuant to clause 13.2 above then GamCo shall have no further obligation to provide Services to the Customer.
14. Force Majeure
14.1 GamCo shall not be deemed to be in default of any provision of this Agreement or be liable for any delay failure of performance or interruption of the provision of the Services to the Customer resulting directly or indirectly from any weather conditions, natural disasters, labour disputes, lockouts, overtime bars, wars or other acts of God, action of any government or military authority, failure caused by hacking or a telecommunications provider or other internet service provider or other force or occurrence beyond GamCo’s reasonable control including without limitation mechanical electronic communications or third party supplier failures.
15. Relationship of Parties
15.1 None of the provisions of this Agreement shall be deemed to constitute a partnership between the parties and neither party shall be responsible for any act or omission of the other or have the right or authority to bind the other in any way.
16. Governing Law
16.1 This Agreement shall be governed by and construed in accordance with South African law.
16.2 Each of the parties to this Agreement irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the Courts of South Africa.
17. Dispute Resolution
17.1 The Parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between their representatives.
17.2 If the matter is not resolved through negotiation and except for disputes relating to debt recovery, the parties will attempt in good faith to resolve the dispute or claim through an Arbitrator procedure.
17.3 The performance of obligations under the Agreement shall not cease or be delayed by the application of an arbitrator procedure pursuant to clause 17.2 above.
17.4 If the matter has not been resolved by an ARBITRATOR procedure within 2 months of the initiation of such procedure or if either Party will not participate in an ARBITRATOR procedure the dispute shall be referred to the Courts of England in accordance with clause 16.2 above.
18.1 This Agreement together with the Service Order Form and GamCo Rules and Regulations shall constitute the entire agreement and understanding between the parties in respect of the subject matter of this Agreement and supersedes any prior or contemporaneous agreement whether written or oral. Any changes modifications or amendments to this Agreement to be binding must be signed by an authorised officer of both parties. This Agreement does not supersede or terminate any non-disclosure or confidentiality agreement in existence between the parties
18.2 If any of the provisions of this Agreement are found to be void or unenforceable it shall be deemed to be deleted from this Agreement and the remaining provisions shall continue to apply. The parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision found to be void or unenforceable
18.3 The Customer may not sell assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of GamCo and any such attempted assignment or delegation without such consent will be void. GamCo may assign this Agreement in whole or in part and may also delegate the performance of certain Services or Supplemental Services to third parties including GamCo’s wholly owned subsidiaries. This Agreement will bind and inure to the benefit of each party’s successors and permitted assignees
18.4 Except as otherwise expressly provided within the Agreement no notice or other communication from one party to the other shall have any validity under the Agreement unless made in writing by or on behalf of the party concerned
18.5 Any notice or other communication which is to be given by either party to the other shall be given by letter or by facsimile transmission or electronic mail confirmed by letter. Such letter shall be delivered by hand or sent pre-paid by first class registered or recorded delivery post addressed to the other party. If the other party does not acknowledge receipt of such letter or item of electronic mail and the relevant letter or item of electronic mail is not returned as undelivered the notice or communication shall be deemed to have been given 3 working days after the day on which the letter was posted or item of electronic mail is sent. Facsimilie transmission shall be deemed to be made when sent provide it is properly address to the correct number and the sender obtains an error free transmission report.
18.6 If a party doesn’t enforce a right available to it under this Agreement in any particular instance, then that won’t prevent it from enforcing that right in future or in any other instance.
18.7 The Customer agrees that throughout the duration of this Agreement and for a period of 1 calendar year after its termination it will not and will further assure that its affiliates do not directly or indirectly solicit or attempt to solicit for employment any persons employed by GamCo or contracted by GamCo to provide Services or Supplemental Services to the Customer
18.8 All information, GamCo Technology, data, drawings, specifications, documentation, which GamCo may have imparted and may from time to time impart to the Customer relating to the Services is proprietary and confidential. The Customer agrees and acknowledges that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement, disclose the same, whether directly or indirectly, to any third part without GamCo’s prior written consent.
18.9 Clause 18.8 shall not prevent the disclosure or use by the Customer of any Information which is or through no fault of the Customer becomes public knowledge or to the extent permitted by law.
18.10 Each party gives the other its consent to publicise in a positive light only, the fact that the parties have a business relationship, but not to disclose the terms of this Agreement. For this purpose each party grants to the other a non-exclusive royalty free licence to use the logos and trademarks of the other party provided always that such use shall be for the purposes of publicising the relationship of the parties.
Thank you for reading GamCo’s Acceptable Use Policy (AUP). By accessing this website, or by contracting with us for service, you agree, without limitation or qualification, to be bound by this policy and the terms and conditions it contains, as well as any other additional terms, conditions, rules or policies which are displayed to you in connection with this service / website.
The purpose of this AUP is to comply with the relevant laws of the Republic; to specify to customers and users of our service / website what activities and online behaviour are considered an unacceptable use of the service / website; to protect the integrity of our network and to specify the consequences that may flow from undertaking such prohibited activities.
This document contains a number of legal obligations which you are presumed to be familiar with. As such, we encourage you to read this document thoroughly and direct any queries to our customer services department at (011) 312-0481.
GamCo respects the rights of our customers and users of our services to freedom of speech and expression; access to information; privacy; human dignity; religion, belief and opinion in accordance with our constitution. We undertake not to interfere with any of those rights unless required to do so by law; unless those rights are exercised for unlawful purposes; or unless the exercise of those rights threatens to cause harm to another person or affect the integrity of our network.
GamCo confirms that in compliance with section 72 of the Electronic Communications and Transactions Act 25 of 2002, GamCo is a member of the Internet Service Providers’ Association (ISPA) and has adopted and implemented the association’s official Code of Conduct, which can be viewed at www.ispa.org.za/code.
GamCo’s services / website may only be used for lawful purposes and activities. We prohibit any use of our website / network including the transmission, storage and distribution of any material or content using our network that violates any law or regulation of the Republic. This includes:
Where any user resides outside of the Republic, permanently or temporarily, such user will be subject to the laws of the country in which s/he is currently resident and which apply. On presentation of a legal order to do so, or under obligation through an order for mutual foreign legal assistance, GamCo will assist foreign law enforcement agencies (LEA) in the investigation and prosecution of a crime committed using GamCo’s resources, including the provisioning of all personal identifiable data.
The following sections outline activities that are considered an unacceptable use of GamCo’s services / network / website and also detail the guidelines for acceptable use ofcertain facilities / services, as the case may be.
Any activity which threatens the functioning, security and / or integrity of GamCo’s network is unacceptable. This includes:
In reading this AUP or in signing a service contract with GamCo, you acknowledge that GamCo has no power to control the content of the information passing over the Internet and its applications, including e-mail; chatrooms; news groups; or other similar fora, and that GamCo cannot be held responsible or liable, directly or indirectly, for any of the abovementioned content, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, any such content.
Our services also offer access to numerous third party webpages.?You acknowledge that we exercise absolutely no control over such third party content, or sites and in such cases, our network is merely a conduit or means of access and transmission. This includes, but is not limited to, third party content contained on or accessible through the GamCo network websites and web pages or sites displayed as search results or contained within a directory of links on the GamCo network. It remains your responsibility to review and evaluate any such content, and that any and all risk associated with the use of, or reliance on, such content rests with you.
Access to public Internet spaces, such as bulletin boards, Usenet groups, chat rooms and moderated forums is entirely voluntary and at your own risk.
GamCo employees do not moderate any of these services, or your communications, transmissions or use of these services. We do not undertake any responsibility for any content contained therein, or for any breaches of your right to privacy that you may experience as a result of accessing such spaces.
The customer is responsible for determining and familiarizing himself or herself with the written policies of a given newsgroup before posting to it.
The customer must comply with these guidelines at all times which can be obtained from other users of the newsgroup upon request, or from the group’s administrators / moderators.
The following are prohibited practices with regard to Usenet newsgroups and GamCo reserves the right to delete and / or cancel posts which violate the following conditions:
Spam and unsolicited bulk mail are highly problematic practices. They affect the use and enjoyment of services by others and often compromise network security. GamCo will take swift and firm action against any user engaging in any of the following unacceptable practices:
GamCo provides?virus filtering system to protect customers from viruses. The customer acknowledges and agrees that GamCo shall without limitation have no responsibility for, or liability in respect of any data lost as a result of this system.
Webmail and other web based email services made available by GamCo are provided on an “as is”basis without representations, warranties or conditions of any kind, and the customer acknowledges and agrees that GamCo shall have no responsibility for, or liability in respect of, any aspect of the Webmail services, including without limitation for any lost or damaged data or any acts or omissions of GamCo. As webmail storage space is limited, some Webmail messages may not be processed due to space constraints or message limitations.
Webmail is provided to individuals and for personal use only. Any unauthorised commercial use of the Webmail service, or resale of the Webmail service is expressly prohibited.
GamCo prohibits customers from using GamCo’s service to harm or attempt to harm a minor, including, but not limited to, by hosting, possessing, disseminating, distributing or transmitting material that is unlawful, including child pornography.
Customers are responsible for any misuse of GamCo’s services that occurs through the customer’s account. It is the customer’s responsibility to ensure that unauthorised persons do not gain access to or misuse GamCo’s service.
GamCo urges customers not to reply to unsolicited mail or “spam”, not to click on any suggested links provided in the unsolicited mail. Doing so remains the sole responsibility of the customer and GamCo cannot be held liable for the Customer being placed on any bulk mailing lists as a result.
Where the customer has authorised a minor to use any of the GamCo’s services or access its websites, you accept that as the parent / legal guardian of that minor, you are fully responsible for: the online conduct of such minor; controlling the minor’s access to and use of any services or websites; and the consequences of any misuse by the minor, including but not limited to transactions entered into by the minor using such access.
GamCo cannot be held liable for any business dealings you have with any third parties on the Internet, including any vendors, or advertisers found on, or through, the GamCo network. Further, GamCo assumes no responsibility whatsoever for any charges you or any user of your account incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable customs and exchange control laws in connection with any such transactions shall be the customer’s.
GamCo confirms that it has a procedure in place for the notice and take-down of illegal material. In compliance with section 77 of the Electronic Communications and Transactions Act (No. 25 of 2002)GamCo’s designated agent for this process can be reached at (011) 312-0481 or at email@example.com. The notice and take-down procedure can be viewed at gam.co.za/abuse.
Customers are also notified of the content and procedures of the ISPA Code of Conduct (www.ispa.org.za/code) which may be used against any Internet service provider who fails to comply with the code of conduct. We urge you to familiarise yourselves with this code.
It is the customer’s responsibility to familiarise himself or herself with the procedure set out below and report any cases of violation of this AUP to GamCo’s designated complaints handling agent.
Please note that GamCo cannot handle complaints concerning networks or users that do not have service contracts with us or our affiliates, or are outside of our control.
In order for GamCo to thoroughly investigate the complaint and take appropriate action, all complaints must be in writing, via fax or e-mail and contain as much information as possible, including, but not limited to:
GamCo discourages anonymous complaints being made via this service, and urges complainants to supply their name and contact details to us. Such information will not be released, except where required by law enforcement. Anonymous complaints will however be acted upon as long as sufficient detail as outlined above is supplied.
Upon receipt of a complaint, or having become aware of an incident, GamCo may take any of the following steps:
GamCo reserves the right to amend or alter this policy at any time, and without notice to you.
GamCo reserves the right to take action against any individuals, companies or organizations that violate any of the prohibited activities set out herein, or engage in any illegal or unlawful activity while accessing our services, to the fullest extent of the law.
GamCo reserves the right, at its sole discretion, to act against other types of abuse not listed in this document and to investigate or prevent illegal activities being committed over our network.
GamCo reserves the right to monitor user and network traffic for site security purposes and prevent any unauthorised attempts to tamper with our site or cause damage to our property.
GamCo reserves the right to suspend, revoke or cancel GamCo’s services to the customer / user if the safety and integrity of GamCo’s resources are placed at risk in continuing to provide service to the subscriber / user.
GamCo reserves the right to remove any information or materials in whole or in part, that, in GamCo’s sole discretion, is deemed to be offensive, indecent, or otherwise objectionable.
GamCo does not undertake to guarantee the security of any data passing through its networks. Although GamCo will provide a “best effort” service, including regular updates on computer viruses and other threats to security of data, it is the responsibility of the communicating parties to safeguard their data, and GamCo cannot be held liable for any loss or damage arising as result of the failure to do so.
The implementation of the ‘Connection Management’ policy allows us to protect our customers from potential abuse and theft of ADSL accounts.
This policy will enforce specific rules pertaining to concurrent sessions and data thresholds.
When the number of sessions per account exceeds two and the user is below the ‘subscribed to’ cap, a mail notification will be sent to GamCo flagging the account. No action will be taken against the account at this point.
If the user exceeds the ‘subscribed to’ cap and initiates more than two concurrent sessions, we will receive a daily notification for a period of five days. The notification will inform GamCo of the account’s activity and pending suspension. On the fifth day, the account will be suspended.
GamCo does not waive its right to enforcement of this AUP at any time, or prejudice its right to take subsequent action, should GamCo fail, neglect or elect not to enforce a breach of the AUP at any time.
GamCo may on occasion use your personal information to contact you about promotional offers; advise you of matters relevant to service provision and in some cases, solicit your feedback. However, GamCo will provide you with an option within every communication to opt out of receiving any communications of this nature or you can contact our customer services representatives to ensure that you do not receive such promotional information, at (011) 312-0481.
This Agreement is between GamCo (PTY) Ltd a South African company with it’s principal office located in Midrand, and the client named hereafter. GamCo agrees to provide, and Client agrees to accept through GamCo access to Web Hosting services according to the following terms and conditions:
Signing up for an account binds the clients to the above contract.
1. GamCo Business ADSL Terms and Conditions Description of Service
1.1 With effect from the Effective Date, GAMCO shall provide Customer with on-line access to the collection of local area networks and wide area networks that all use the same protocol (namely TCP/IP) to form a seamless, packet-switched network known colloquially as the “INTERNET”. Such access is gained via a dedicated permanent analogue line provided by the PSTS provider, utilising asymmetric digital subscriber line (ADSL) technology to connect to IS’ managed infrastructure.
1.2 GAMCO lets to Customer, which hereby takes on hire, the router equipment, as specified in Schedule AB1 hereto (“Router”)
1.3 The above services are hereinafter collectively referred to as the “Business ADSL Service”.
1.4 The Business ADSL Service enables Customer:-
1.4.1 In the case of a Business ADSL Service where the line-speed is limited (Line Speed Limit Business ADSL”), to access the above-described networks at the speed/s specified in Schedule AB1 above;
1.4.2 In the case of a Business ADSL Service where the aggregate data download capacity is limited (“Data Limit Business ADSL”) , to download data through the Business ADSL Service up to the limit/s specified in Schedule AB1 above. Insofar as the Line Speed Limit Business ADSL Service is concerned, no limit will be applied each month to the amount of data which a Customer may download (always subject however to the provisions of the GAMCO AUP, as specified in clause 4.1 of the Standard Terms and Conditions). Insofar as the Data Limit Business ADSL Service is concerned, no limit will be applied by IS to the line speed at which Customer shall be able to connect to the IS network (but such limit may be imposed by the PSTS provider through which Customer obtain its ADSL connectivity).
1.5 The provision of the Business ADSL Service is subject to the terms and conditions set out in this Schedule.
2. Duration and Effective Date
2.1 The Effective Date of this Schedule is the date when provision of the Business ADSL Service first commences. For purposes of this Schedule, and notwithstanding anything to the contrary in the Standard Terms and Conditions to which this Schedule is attached, provision of the Business ADSL Service shall be deemed to have commenced upon delivery of the Router to Customer by GAMCO, irrespective of whether or not Customer has activated the Router. Should the Effective Date occur after the date of signature of the Agreement, nothing herein contained shall be construed so as to give either party the right to cancel or rescind the Agreement before the Effective Date.
2.2 If at any time during the currency of the Agreement, Customer upgrades the Business ADSL Service, then the Effective Date in respect of the Business ADSL Service as upgraded, shall be the date when the upgraded Service first commences.
2.3 The Business ADSL Service shall endure for the Initial Period as specified in the Cost Schedule, commencing on and with effect from the Effective Date.
2.4 Either party hereto shall be entitled to terminate this Schedule by way of 90 (ninety) days prior written notice of termination to be effective at the end of the Initial Period. Failing such notice of termination, the duration of the Service shall thereafter automatically renew for successive periods of 12 (twelve) months each on the terms and conditions set out in the Schedules, subject to 90 (ninety) days prior written notice of termination effective at the end of the then-current 12 (twelve) month period, and subject to an escalation in fees per clause 3.7 of the Standard Terms and Conditions.
3. Fees and Charges
3.1 Customer shall pay the fees as specified in Schedule AB1 hereto.
3.2 Such fees exclude any fees payable for the ADSL line rental, for which Customer alone shall be directly liable to the PSTS provider. Insofar as the Incoming Fax value-added service specified in Schedule AB1 is concerned, only incoming faxes are bundled with the Business ADSL Service. Customer shall be liable for any out-going faxes at standard PSTS provider rates.
4. Ownership GAMCO shall at all times be and remain the owner of the Router and nothing in this Schedule shall be construed so as to confer any rights or interest therein to Customer other than as a hirer of the Router.
5. Return Of Router On termination of this Agreement in the manner envisaged in clause 2 of this Schedule, clause 8 of the Standard Terms and Conditions, or in any other circumstances, Customer shall forthwith return the Router to GAMCO in the same condition as it stands on the Effective Date, fair wear and tear excepted.
6. Risk All risk of loss and/or destruction of the Router shall be retained by Customer at all times. Customer shall be responsible for ensuring the safety of the Router and shall ensure that the Router is insured against loss and destruction for the usual causes arising, and shall be liable for the replacement costs of the Router in the event of any loss or destruction thereof.
7. Operation Of Router
7.1 GAMCO shall at all times operate and maintain the Router, and Customer shall permit GAMCO to have access to the Router at all reasonable times for purposes of such operation and maintenance as well as to inspect the state and condition of the Router when necessary.
7.2 Customer shall not have access to the Router configuration and shall not modify or attempt to modify the Router configuration.
7.3 Notwithstanding that the Router may have incorporated into it wireless and/or firewall and/or VPN functionality (hereinafter “Additional Functionality”), GAMCO will not in any circumstances activate or support such Additional Functionality. The prohibition in clause 7.2 above in respect of Customer modification of Router configuration shall also apply to activation of the Additional Functionality, which modification is likewise prohibited to Customer.
The information in this message is intended for the addressee(s) only.
It may contain information that is confidential and subject to copyright.
If you are not the intended recipient or have received this message in error, please notify the sender by return email at your earliest convenience and delete this email, do not use, peruse, disseminate, distribute or copy this message or any file attached to this message. Any such unauthorized use, is prohibited and may be unlawful.
GamCo does not make any representation or warrant that files attached to this e-mail are free from computer viruses or other defects. Any attached files are provided, and may only be used, on the basis that the user assumes all responsibility for any loss or damage resulting directly or indirectly from such use.
Furthermore, the information contained in this message, and any attachment(s) thereto, is for information purposes only and may contain the personal views and opinions of the author, which are not necessarily the views and opinions of GamCo or its subsidiaries and associated companies.
GamCo does not make any representations regarding any web sites that may be accessed through this message, and accordingly shall not be responsible for other content or use of such web sites.
GamCo shall not be responsible for any loss or damage of whatsoever nature (including consequential loss or damage) suffered or incurred, directly or indirectly, by the user or any other person as a result of relying on, or incidental to, or the use of, or any matter relating to, the information contained in this message.