a) "the Terratest website" means the website, owned and operated by Terratest available at http://www.terratest.co.za/, including any page, part or element thereof;
b) "Terratest" means Terratest (Pty) Ltd, reg. no. 1969/012354/07 of JG Afrika House, 37 Sunninghill Office Park, Peltier Drive, Sunninghill, 2191;
c) "User" means any person who enters or uses the Terratest website, notwithstanding the fact that such a person only visits the home page of the Terratest website;
d) References herein to the singular includes the plural and vice versa; and
e) Hyperlinks herein to legal documents should be deemed part of these terms and conditions in terms of section 11(3) of the ECT Act. The fact that some or all of the hyperlinks may, from time to time, be non-operational, shall not affect the validity and interpretation of these terms and conditions.
Established in 1990, Terratest now operates throughout Southern Africa and is well known for the quality and integrity of its work and for appropriate, sustainable and cost effective solutions
A professional team of engineers, environmental scientists, geohydrologists, geologists, project managers and GIS specialists provides a unique, integrated service to the industry. This integration of services allows Terratest to view each project holistically and provide optimal solutions to its clients and to the communities it serve's .
2. ALLOWED USE AND LICENSE
2.1 Terratest licenses the user to view, download and print the content of the Terratest website, provided that such content is used for private, personal, educational and/or non-commercial purposes only.
2.2 Content from the Terratest website may not be used or exploited by users for any commercial and non-private purposes without the prior written consent of Terratest.
2.3 Users may only access, browse and use the Terratest website for legitimate personal or commercial purposes and may not use the Terratest website or any Terratest services and/or products for:
2.3.1 Harmful purposes;
2.3.2 Illegal purposes
2.3.3 Disclosing, sharing or publishing material that may be offensive, defamatory, regulated, prohibited, infringing or damaging to any person; and/or
2.3.4 The creation, storage and sending of unsolicited commercial communications
2.4 The caching of the Terratest website shall only be allowed if:
2.4.1 The purpose of the caching is to make the onward transmission of the content from the Terratest website more efficient;
2.4.2 The cached content is not modified in any manner whatsoever;
2.4.3 The cached content is updated at least every 12 (twelve) hours; and
2.4.4 The cached content is removed or updated when so required by Terratest.
2.5 If any user uses content from the Terratest website in breach of the provision detailed herein:
2.5.1 Terratest reserves the right to claim damages from the user;
2.5.2 Terratest reserves the right to institute criminal proceedings against the user: and
2.5.3 Terratest shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the user or any third party who obtained any content from the user.
2.6 Hyperlinks to the Terratest website from any other source shall be directed at the home page of the Terratest website. Links beyond the Terratest home page may only be used with Terratest's prior written consent.
2.7 Terratest shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of content, products or services available from the Terratest website, if such content, products or services was accessed through a hyperlink not directed at the home page of the Terratest website. Persons that wish to link to pages beyond the home page of the Terratest website without Terratest's prior written consent shall do so at their own risk and indemnify Terratest against any loss, liability or damage that may result from the use of such hyperlinks. Terratest's non-liability for deep linking is based on the fact that deep links bypass these terms and conditions.
2.8 Users may quote small and reasonable amounts of content available from the Terratest website and only if such a quote is placed in inverted commas and acknowledged.
2.9 No person may, without the prior written consent of the Terratest, frame the Terratest website in any manner whatsoever.
2.10 Apart from bon-fide search engine operators and use of the search facility provided on the Terratest website by users, no person may use or attempt to use any technology or applications (including web crawlers, robots or web spiders) to search, collect or copy content from the Terratest website for any purpose whatsoever, without the prior written consent of the Terratest.
2.11 E-mail addresses, names, telephone numbers and fax numbers published on the Terratest website may not be incorporated into any database used for electronic marketing or similar purposes. No permission is given or should be implied that information on the Terratest website may be used to communicate unsolicited communications to Terratest and all rights detailed in 45 of the ECT Act are reserved.
2.12 All licenses and/or permissions granted in terms of this clause 2 are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Terratest at any time without prior notice or reasons.
3.1 All intellectual property on the Terratest website, including but not limited to content, trademarks (or any confusingly similar trademarks), logos, pictures, video, downloads, domain names, patents, design elements, software, source code, meta tags, databases, text, graphics, icons and hyperlinks are the property of or licensed to Terratest and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the user in clause 2, all other rights to intellectual property on the Terratest website are expressly reserved.
3.2 No person may use logos, icons or trade marks from the Terratest website as hyperlinks or other purposes without Terratest's prior written consent.
It is the responsibility of the user to acquire and maintain, at his/her own expense, the necessary computer hardware, software, communication lines and Internet access accounts required to access the Internet and the Terratest website and/or download content from the Terratest website.
These terms and conditions as well as product and / or service specific terms and conditions govern the sale of goods and / or the provision of services from or through the Terratest website.
Access to the services, content, software and downloads available from the Terratest website may be classified as "electronic transactions" as defined in terms of the ECT Act and therefore users have the rights detailed in chapter 7 of the ECT Act and Terratest has, amongst others, the duty to disclose the following information:
5.1 The full name and legal status of the website owner: Terratest (Pty) Ltd, reg. no. 1969/012354/07 of JG Afrika House, 37 Sunninghill Office Park, Peltier Drive, Sunninghill, 2191
5.2 Directors: P A Olivier and J C Norris
5.3 Street address: JG Afrika House, 37 Sunninghill Office Park, Peltier Drive, Sunninghill, 2191
5.4 Postal address: P.O. Box 1109, 1109, Sunninghill, 2157
5.5 Physical address for receipt of legal service: JG Afrika House, 37 Sunninghill Office Park, Peltier Drive, Sunninghill, 2191;
5.6 Telephone number: (011) 231 2200
5.7 Fax number: (011) 807 1607
5.8 Main business: Earth science consultancy specialising in environmental, geotechnical and geohydrological projects
5.9 The website address of the Terratest website is: http://www.terratest.co.za
5.10 The official e-mail address of the Terratest website is: [email protected]
5.11 Information manual published at: http://www.terratest.co.za/paia.php
5.12 Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:
5.12.1 access to the Terratest website;
5.12.2 the inability to access the Terratest website;
5.12.3 the services and content available from the Terratest website; or
5.12.4 these terms and conditions
shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Johannesburg in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client. The expedited rules of the Arbitration Foundation of South Africa may be downloaded from the following website: http://www.arbitration.co.za;
5.13 Users may lodge complaints concerning the Terratest website with Terratest at: [email protected].
Terratest reserves the right, in its sole and absolute discretion, to do any of the following, at any time without prior notice or justification:
6.1 change these terms and conditions
6.2 change the content and/or services available from the Terratest website;
6.3 discontinue any aspect of the Terratest website or service(s) available from the Terratest website; and/or
6.4 change the software and hardware required to access and use the Terratest website.
7.1 Terratest shall take all reasonable steps to protect the personal information of users and for the purpose of the clause, "personal information" shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA).
7.2 Terratest may electronically collect, store and use the following personal information of users:
7.2.1 name and surname;
7.2.2 area code;
7.2.3 street address;
7.2.4 postal address;
7.2.5 title;
7.2.6 contact numbers;
7.2.7 non-personal browsing habits and click patterns;
7.2.8 e-mail address; and/or
7.2.9 IP address.
7.3 Terratest collects, stores and uses the abovementioned information for the following purposes:
7.3.1 Communicate requested information to the user;
7.3.2 Provide services to the user as requested by the User;
7.3.3 Authenticate the user;
7.3.4 Provide the user with access to restricted pages on this website; and
7.3.5 Compile non-personal statistical information about browsing habits, click-patterns and access to the Terratest website.
7.4 Information detailed above is collected either electronically by using cookies or is provided voluntarily by the user. Users may determine cookie use independently through their browser settings.
7.5 Terratest may collect, maintain, save, compile, share, disclose and sell any information collected from users, subject to the following provisions:
7.5.1 Terratest shall not disclose personal information from users unless the user consents thereto;
7.5.2 Terratest shall disclose personal information without the user's consent only through due legal process; and7.5.3 Terratest may compile, use and share any information that does not relate to any specific individual.
7.6 Terratest owns and retains all rights to non-personal statistical information collected and compiled by the Terratest.
8.1 Terratest may provide hyperlinks to websites not controlled by Terratest ("target sites") and such hyperlinks do not imply any endorsement, agreement on or support of the content, products and/or services of such target sites.
8.2 Terratest does not editorially control the content, products and/or services on target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access, use, inability to use or content available on or through target sites.
9.1 Terratest shall take all reasonable steps to secure the content of the Terratest website and the information provided by and collected from users from unauthorised access and/or disclosure. However, Terratest does not make any warranties or representations that content shall be 100% safe or secure.
9.2 Subject to the provision of section 43(5) and 43(6) of the ECT Act, if applicable, Terratest is under no legal duty to encrypt any content or communications from and to users and is also under no legal duty to provide digital authentication of any pages on the Terratest website.
9.3 Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, robots or spy ware, to Terratest website or the server and computer network that support the Terratest website.
9.4 Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to Terratest website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Terratest harmless against any and all liabilities, damages, risks and losses that Terratest and its partners / affiliates may suffer as a result of such deliver, attempt or damaging code.
9.5 Users may not develop, distribute or use any device or programme designed to breach or overcome the security measures of the restricted pages, products and services on the Terratest website and Terratest reserves the right to claim damages from any and all persons involved, directly and indirectly, in the development, use and distribution of such devices or programmes.
9.6 Users who commit any of the offences detailed in section 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liabilities, losses, destruction or damages suffered and/or incurred by Terratest and its partners / affiliates due to or related to these illegal actions.
10.1 Subject to the provisions of section 43(5) and 43(6) of the ECT Act, if applicable, and as far as allowed by law, Terratest (including its owners, employees, suppliers, Internet service providers, partners, affiliates and agents) shall not be liable for any damage, loss or liability of any nature incurred by whomever and resulting from:
10.1.1 access to the Terratest website;
10.1.2 access to websites linked to the Terratest website;
10.1.3 inability to access the Terratest website;
10.1.4 inability to access websites linked to the Terratest website;
10.1.5 content available on the Terratest website;
10.1.6 services available from the Terratest website;
10.1.7 products available from the Terratest website;
10.1.8 downloads and use of content from the Terratest website; and/or
10.1.9 any other reason not directly related to Terratest's gross negligence.
10.2 The Terratest website is supplied on an "as is" basis and has not been compiled to meet the user's individual requirements. It is the responsibility of the user to satisfy himself or herself, prior to entering into this agreement with the Terratest, that the content available from and through the Terratest website meet the user's individual requirements and is compatible with the user's computer hardware and/or software.
10.3 Information, ideas and opinions expressed on the Terratest website should not be regarded as professional advice or the official opinion of Terratest and users are encouraged to consult professional advice before taking any course of action related to the information, ideas or opinions expressed on the Terratest website.
10.4 Terratest does not make any warranties or representation that content and services available from the Terratest website shall in all cases be true, correct or free from any errors. Terratest shall take all reasonable steps to ensure the quality and accuracy of content available from the Terratest website.
10.5 Terratest does not make any warranties or representation that the Terratest website shall be available at all times. Users acknowledge that the Terratest website may be unavailable due to updates or other causes beyond the reasonable control of the Terratest, including, but not limited to virus infection, unauthorised access (hacking), power failure or other "acts of God"
Terratest does not edit or scan comments posted by the user or e-mails from the user to Terratest or the Terratest website and shall not be liable for any defamatory, illegal, infringing, hateful, pornographic or harmful postings.
Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from the Terratest website to Terratest and Terratest undertakes to correct and/or remove such content or any part thereof if the person reporting such content provided reasonable grounds to prove the alleged nature of the content.
13.1 Subject to the provision of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the user agrees to the Terratest's right to intercept, block, filter, read, delete, disclose and use all communications (including all "data messages" as defined in the ECT Act) send or posted by the User to the Terratest website, its staff and employees. The RIC Act may be downloaded from: http:/www.info.gov.za/acts/2002/a70-02/.
13.2 The User agrees and acknowledges that the consent provided by the user in clause 13.1 satisfies the "writing" requirement as detailed in the ECT Act and the RIC Act.
14.1 These terms and conditions constitute the entire agreement between Terratest and the user and shall take precedent over any disclaimers and/or legal notices attached to any communications and/or postings received by Terratest from the user.
14.2 Any failure by Terratest to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision.
14.3 In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
The user and Terratest agree that:
15.1 the user shall be bound to these terms and conditions and such agreement is concluded in Pretoria (South Africa) at the time the user enters the Terratest website for the first time;
15.2 data messages (as defined in the ECT Act) addressed by the user to Terratest shall only be deemed to be received by the user as detailed in section 23(b) of the ECT Act;
15.3 data messages (as defined in the ECT Act) addressed to the user by Terratest shall be deemed to be received by the user as detailed in section 23(b) of the ECT Act;
15.4 date messages (as defined in the ECT Act) addressed by the user to Terratest shall be deemed to have been created and sent by the user from within the geographical boundaries of South Africa;
15.5 electronic signatures, encryption and/or authentication is not required for valid electronic communications between the user and the Terratest; and
15.6 the user agrees and warrants that data messages that are sent to Terratest from a computer, IP address or mobile device normally used by or owned by the user, was sent and/or authorised by the user personally.
The Terratest website is hosted, controlled and operated from the Republic of South Africa and therefore, subject to clause 5.12, the South African law enforced by the South African courts governs the use or inability to use the Terratest website, its content, services, products and these terms and conditions.
Terratest shall not be liable for costs incurred by users to obtain professional advice relating to these terms and conditions