By ordering, installing, connecting or making use of The Geek Factory’s goods or services from our website www.speedhost.co.za, or by indicating your acceptance of this Agreement in any other way, you agree to be bound by The Geek Factory’s Standard Terms as well as The Geek Factory’s Acceptable Use Policy and the specific Service Terms applicable to the good or service concerned.
Your attention is drawn in particular to clauses rendered in bold capitals in the TGF Standard Terms. What follows is a summary for your convenience and does not form part of the agreement between you and The Geek Factory. It is your responsibility to read the clauses referred to.
- You consent to a credit check and to credit record reporting (clause 7.1), if required.
- You are responsible for your own actions using the services provided by The Geek Factory (clause 9.1).
- You are responsible for all hardware and software required to make use of the services provided by The Geek Factory unless otherwise agreed (clause 9.2).
- You agree to comply with The Geek Factory’s Acceptable Use Policy (clause 9.4).
- You warrant that you have the right to use any material transmitted, accessed, stored, displayed or reproduced using the service provided by The Geek Factory (clause 11.7).
- You consent to The Geek Factory monitoring your traffic data for accounting purposes and to ensure that the TGF system is operating properly (clause 14.1).
- You consent to The Geek Factory using personal information that you provide to The Geek Factory only for the purpose of providing the service/s, and you warrant that if you provide a third party’s personal information to The Geek Factory you have the consent of that third party (clause 14.3).
- As soon as equipment provided by The Geek Factory leaves The Geek Factory possession, risk passes to you (clause 16).
- If any equipment owned by The Geek Factory is located on premises you do not own, you must reimburse The Geek Factory if the landlord attaches the equipment as part of a rental dispute (clause 18).
- The Geek Factory will not be liable to you if you suffer loss as a result of your use of the services provided by The Geek Factory or which arises from the agreement between you and The Geek Factory (clause 19).
- You indemnify The Geek Factory against any claim made against The Geek Factory as a result of any unlawful act that you may commit, or your use of the goods or services provided by The Geek Factory other than as allowed in the agreement (clause 20).
Contents
1. Parties
2. Definitions
3. How the Agreement Works
4. Service Orders
5. Term of Agreement and Renewal
6. Amendment of Terms
7. Initiation
8. Fees and Payment
9. Use of Services
10. Email accounts
11. Intellectual Property
12. Security
13. Suspension of Service
14. Data & Content
15. Statutory Compliance
16. Loss of License
17. Risk and Ownership in Equipment
18. Use and Maintenance of Equipment
19. Limitation of Liability
20. Indemnity
21. Warranties
22. Assignment, Subcontracting and Reselling
23. Relationship between the Parties
24. No Solicitation
25. Application of the Consumer Protection Act
26. Breach and Termination
27. Notices
28. Disputes
29. Force Majeure
30. Interpretation
31. General
32. Domain Registration, Renewal, Redemption, Deletion & Domain Parking
- Parties
1.1. " The Geek Factory " is The Geek Factory PTY(LTD) also known as https://speedhost.co.za, a company incorporated in terms of the company laws of the Republic of South Africa.
Address: Bornman cr 11, Fichardtpark, Bloemfontein, 9301 South Africa
Telephone: 079 035 7110
Email: accounts@speedhost.co.za/ support@speedhost.co.za /billing@speedhost.co.za
1.2. "The Customer” or "You" is the party described as such on any Service Order executed between you and The Geek Factory with contact details as entered on the Service Order. - Definitions
The terms listed below will have the following meanings in this Agreement:
2.1. "Acceptable Use Policy" or AUP means the document with that heading available on the The Geek Factory Website, as amended from time to time.
2.2. “Agreement" means these Standard Terms, as well as the relevant Service Order(s), Service Terms and any schedules or annexures relating to them or to this document, which all form part of the Agreement.
2.3. “Affiliate” means, in relation to a Party, the Party’s holding company, its subsidiaries, the subsidiaries of its holding company and any other companies which, directly or indirectly, is controlled by the Party, controls the Party or is under common control with the Party.
2.4. “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.
2.5. “Business Hour" means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
2.6. “Charges” means the rates to be paid by the Customer for the Services as set out in the Charges Schedule [is it possible to put these in a schedule so details may be updated once instead of in each document]
2.7. “Customer” is defined in section 1.2.
2.8. "Customer Data" means information collected for the purpose of identifying customers as well as photographs, websites, videos, data and e-mail messages that are transmitted via the TGF System.
2.9. "Customer Equipment" means any equipment owned by the Customer, including without limitation servers, peripherals, routers, switches, Software, Databases, data cables, hard drives and uninterruptible power supplies.
2.10. "Customer System" means the Customer Equipment and Software operated together by the Customer as a system.
2.11. “Customer Support Ticket Area” means the online account administration facility provided to Customers at the Speedhost Website .
2.12. “CPA” means the Consumer Protection Act, 68 of 2008.
2.13. "Data" means electronic representations of information in any form.
2.14. “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.
2.15. “The Geek Factory Equipment” means any equipment supplied to the Customer by The Geek Factory in terms of this Agreement but which the Customer does not own, or any equipment possessed by The Geek Factory.
2.16. " The Geek Factory Premises" means any premises where equipment used by The Geek Factory to provide the Services is located, and which is not owned or occupied by the Customer, and includes reference to data centres both in South Africa and elsewhere.
2.17. " The Geek Factory System" means equipment operated together as a system by The Geek Factory to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.
2.18. “The Geek Factory Website” means the Internet website published at the URL www.the-geek-factory.co.za or “www.speedhost.co.za” or another URL that The Geek Factory notifies the Customer of from time to time.
2.19. "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.
2.20. "Emergency Maintenance" means maintenance to the TGF System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Services, or substantial loss to The Geek Factory, the Customer or any third party.
2.21. “Fees” means the fees and / or charges due to The Geek Factory by the Customer in respect of Goods or Services provided by The Geek Factory to the Customer in terms of this Agreement.
2.22. “Goods” means any and all goods to be provided by The Geek Factory to the Customer in terms of this Agreement, including without limitation equipment, hardware and third party software.
2.23. “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.
2.24. “Hosting Service” means the type of hosting service selected by the Customer, either Website Hosting or Cloud Server Hosting as described in the Schedule and the Service Order.
2.25. “Intellectual Property Rights” means patents, registered designs, trade marks (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.
2.26. “Malicious Code” means anything that contains any computer software routine or code intended to:
2.26.1. allow unauthorised access or use of a computer system by any party, or
2.26.2. disable, damage, erase, disrupt or impair the normal operation of a computer system,
and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
2.27. “Party” means either of The Geek Factory or the Customer and “Parties” means both of them collectively. The term also includes their successors and anyone to whom their rights have been assigned (if this is permitted).
2.28. "Personnel" means any director, employee, agent, consultant, contractor or other representative of a Party.
2.29. “Personal Information” has the meaning set out in POPI.
2.30. “POPI” means the Protection of Personal Information Act, 4 of 2013.
2.31. “Privacy Policy” means the document with that heading available on The Geek Factory Website, as amended from time to time.
2.32. “Provider” means The Geek Factory or speedhost.co.za.
2.33. “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2003.
2.34. "Service" means a service provided by The Geek Factory to the Customer in terms of this Agreement.
2.35. "Service Level Availability" means a Service Schedule with that heading defining levels of service to be met by The Geek Factory under the Agreement.
2.36. “SLA Ticket” means the reporting of a service outage or complaint regarding a Service or the Service Level Availability either via the service provider’s online portal.
2.37. “Service Order / Order” means a goods, license, services and / or work order agreed to in writing or by subscription on website (which includes reference to email or via The Geek Factory Website) by both the Parties in terms of this Agreement and relevant Service Terms listing the specific Goods or Services to be provided by The Geek Factory to the particular Customer.
2.38. "Service Terms" means a schedule describing the terms on which The Geek Factory will provide a particular Good or Service, as amended from time to time, read with the General terms, such as the Hosting terms, Domains, Connectivity, AUP.
2.39. "Standard Terms" or “The Geek Factory Standard Terms” means this document.
2.40. "Software” means any computer programme (whether source- or object code), as well as 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.
2.41. “Supplier” means a supplier of goods and / or services to The Geek Factory.
2.42. “Time and Materials Rate” means The Geek Factory 's standard time and materials fees and charges applicable from time to time, including all expenses reasonably and actually incurred by The Geek Factory, including for travel, accommodation and subsistence. - How the Agreement Works
3.1. The Goods and Services that The Geek Factory will provide to the Customer will be described in Service Orders and specific Service Term(s) schedules.
3.2. These Standard Terms apply to all Service Orders.
3.3. More details of particular Goods or Services may be contained in Service Term(s) Schedules.
3.4. The Service Order(s), Service Terms, and this document together form the Agreement between The Geek Factory and the Customer. If the Parties enter into a Service Level Availability or agree to an annexure to any of these documents, these will also form part of the Agreement.
3.5. If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: Standard Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Availability, unless otherwise expressly stated in writing.
3.6. The meanings of any capitalised words in this document are found under the Glossary at the end of this document. - Service Orders / Orders
4.1. The Geek Factory will provide the Services to the Customer as described in Service Orders in terms of the Agreement.
4.2. A Service Order may be signed in hard copy (in counterparts or not), entered into via The Geek Factory Website, per email or by another method if confirmed by The Geek Factory.
4.3. Each Service Order (read with the other documents mentioned above) will be a separate contract between the Customer and The Geek Factory (unless the Service Order is amended or renewed by another Service Order).
4.4. The terms of one 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 Service Order. - Term of Agreement and Renewal
5.1. The Agreement will be in force from the date on which the Customer signs or indicates acceptance of a Service Order in some other way, and will continue in force for the period stated on the Service Order, where after it will automatically renew for further periods equal to the initial period until terminated as described in clause 5.3. If the Service Order does not specify a time period, the Agreement will operate on a month-to-month basis.
5.2. Where the commencement of a Service is delayed, the termination date of the Agreement will be calculated from the date that the Service commenced.
5.3. Unless otherwise stated in the Service Order, the Customer may terminate the Agreement on 1 (one) calendar months’ notice in writing to the other. Cancellations by the Customer must be confirmed by The Geek Factory to have effect. - Amendment of Terms
6.1. The Geek Factory may amend the Standard Terms and Service Terms at any time. The amended versions will be posted on The Geek Factory Website, and The Geek Factory will as soon as possible after posting the amendments make reasonable efforts to advise the Customer of them by email and via the Customer Support Ticket Area.
6.2. The Geek Factory must give at least 14 days or immediate notice under extreme conditions written notice of the amendments.
6.2.1. In the case of a fixed-term Agreement (which includes services renewed monthly), the amendments will become effective at the end of the then current contractual period.
6.2.2. In the case of an indefinite period, the amendments will become effective at the beginning of the first calendar month after the notice period has expired, and the Customer may terminate the Agreement before the end of the notice period if it objects to the amendments. The termination will take effect at the end of the notice period.
6.3. If The Geek Factory increases its Fees, notice of the change must take place as described in clause 6.2 - Initiation
7.1. THE CUSTOMER CONSENTS TO THE GEEK FACTORY CARRYING OUT A CREDIT CHECK ON THE CUSTOMER AT ANY APPLICABLE CREDIT BUREAU IF REQUIRED, AND MAY MAKE THE PROVISION OF THE GOODS OR SERVICES DEPENDANT ON ITS SATISFACTION WITH THE RESULTS. THE GEEK FACTORY MAY ALSO PROVIDE INFORMATION ON THE CUSTOMER’S PAYMENT RECORD TO A CREDIT BUREAU.
7.2. If the Customer is a juristic person, The Geek Factory may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, The Geek Factory may withhold providing the Services until the surety has been signed.
7.3. Depending upon the Service provided to the Customer, The Geek Factory may be obliged under RICA to obtain certain information from the Customer, and The Geek Factory may withhold or suspend provision of Services until the Customer has provided the necessary information to The Geek Factory.
7.4. If the Customer has not complied with a requirement of this clause 7, The Geek Factory may delay providing the Services until the Customer has complied. If the Customer does not comply within a reasonable period, The Geek Factory may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result. - Fees and Payment
8.1. The Customer will be liable for and will pay the Fees in respect of Services supplied in terms of this Agreement on the basis set out in the Service Orders, without deduction or set-off.
8.2. The Geek Factory may at its sole instance require the Customer to make payment by way of debit order.
8.3. Unless otherwise agreed:
8.3.1. Billing will commence on the date that Service provision commences.
8.3.2. Partial months (if applicable) will be charged pro rata, and this Fee may be included in the following month’s charge for convenience’ sake.
8.3.3. All other invoices must be paid by the Customer within ten (10) calendar days of the date of The Geek Factory’s invoice.
8.3.4. Pre-paid Fees must be paid by the 7th day of the relevant month.
8.3.5. All Fees and other amounts payable are quoted exclusive of VAT.
8.3.6. All transactions are processed in South African Rands (ZAR) unless otherwise agreed upon in writing from the Accounts department or Management.
8.3.7. Should the Customer elect to pay via Cash or Cheque payments, services shall only be activated once the proof of payment has been faxed through to the Provider and said amounts are cleared by the bank. The Provider is not responsible for domains being lost, or taken by a third party during the transition period between the registration and the receipt & clearing of the payment for said domains.
8.3.8. All cash / ATM and / Teller deposits will be subject to the bank fees as set out by the bank.
8.4. Interest will be charged on any amount that remains unpaid by the Customer beyond the due date of payment:
8.4.1. The interest rate will be 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month.
8.4.2. The prime overdraft rate will be as charged by The Geek Factory’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.
8.4.3. 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 Customer agrees and undertakes to pay the interest.
8.5. The Geek Factory may at its sole discretion suspend the provision of Services in respect of which any amount is outstanding:
8.5.1. immediately where a debit order fails due to incorrect information or insufficient funds (with a delay in reconnection of up to 72 hours in the case of multiple bounces), or
8.5.2. on 5 (five) Business Days written notice to the Customer in any other case,
8.5.3 unless the amount is the subject of a legitimate billing complaint by the Customer. Such suspension will not relieve the duty upon the Customer to make payment of subsequent Fees for that service or any other amounts due to The Geek Factory.
8.6. Reconnection of any Service suspended in terms of clause 8.4 will be subject to a reasonable reconnection fee which will be published on The Geek Factory Website from time to time.
8.7. Termination of any annual or bi-annual account before its pre-paid term ends will be subject to a reasonable administration fee which will be published on The Geek Factory Website from time to time.
8.8. Should any amount be outstanding by more than 60 Business Days, The Geek Factory may refer the matter to a debt collection agency or attorney for collection. Should it do so, the Customer will be liable for a reasonable administration fee which will be published on The Geek Factory Website from time to time, as well as any legal costs arising from collection of the debt.
8.9. If a particular Service is provided by calendar month, and the commencement date for that Service is not the beginning of a calendar month, the Fee for that first month will be reduced proportionately.
8.10. The Geek Factory may increase or decrease the Fee for any Service from time to time, and this will be done in the same way as an amendment of this Agreement (see clause 6).
8.11. The Customer will reimburse all reasonable expenses that are necessarily and actually incurred by The Geek Factory and The Geek Factory’s Personnel in fulfilling The Geek Factory’s obligations in terms of this Agreement. Such expenses include, but are not limited to, travelling, subsistence, goods and services purchased on the Customer’s behalf, communications, stationery, reports and presentation material. Travelling and subsistence expenses will be agreed between the parties from time to time.
8.12. The Parties agree that in the event of any dispute in respect of monies owing to The Geek Factory which have not been paid by the due date; The Geek Factory:
8.12.1. may retain any Customer Equipment which is in its possession in pursuance of any Service Order as security for payment of any disputed amount, and
8.12.2. will be entitled, but not obliged, to dispose of such Customer Equipment in order to recove
