TERMS AND CONDITIONS
THE CITY OF JOHANNESBURG WEBSITE TERMS AND CONDITIONS
Last updated: 11 February 2015
In these Website Terms, unless a contrary intention appears -
1.1 the clause headings in these Website Terms have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation;
1.2 any reference to (i) the singular includes the plural and vice versa, (ii) any gender includes the other genders and (iii) a natural person includes a juristic person and vice versa;
1.3 the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of these Website Terms, shall not apply to these Website Terms;
1.4 unless the context indicates a contrary intention, the words and expressions defined in clause 2 shall, throughout these Website Terms, bear the meanings assigned to them in that clause 2 and cognate expressions shall bear corresponding meanings;
1.5 any reference to "days" shall be construed as being a reference to calendar "days" unless qualified by the word "business" in which instance a "business day" shall be any day other than a Saturday and a Sunday and/or a public holiday as gazetted by the Government of the Republic of South Africa from time to time. Any reference to "business hours" shall be construed as being the hours between 08h00 and 17h00 on any business day;
1.6 the word "include" and "including" means "include without limitation" and "including without limitation". The use of the word "including" followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it;
1.7 terms other than those defined within these Website Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings;
1.8 defined terms appearing in these Website Terms in title case shall be given the meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with the ordinary meaning as qualified by clause 1.7 and shall, unless the context otherwise indicates, include the term as defined.
In these Website Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause:
2.2 "Consumer" means any natural person or juristic person who enters or intends entering into an electronic transaction with the CoJ as the end user of the Services;
2.3 "User Data" means the username, password or e-mail address provided to the CoJ by the User as part of the Services;
2.4 "Incorporated Entity" means any juristic person including a company, close corporation, trust, partnership;
2.5 "Intellectual Property Rights" means all patents, trademarks, service marks, design rights, copyright, trade or business name, know-how, concepts, ideas, methods, procedures, processes, techniques, models, reports, templates, software or any changes or additions thereto (if any) and other similar rights or obligations, whether or not registerable, registered or application for registration thereof has been made in any party of the world;
2.6 "the CoJ" means the City of Johannesburg;
2.7 "Marks" means any trademarks, logos, brand names, domain names or other marks of the CoJ;
2.8 "Order" means a request by a User for the supply of Services and shall have the meaning ascribed to it in clause 4.3;
2.9 "Party" and "Parties" means the CoJ and the User;
2.10 "Services" mean the eServices provided by the CoJ to the User from the Website from time to time as set forth in clause 16 under the heading "Description of Services";
2.11 "Specific Terms" mean the terms and conditions which supplement these Website Terms and govern the use of individual Services selected by the User;
2.12 "User" means any person who enters and uses the Website, including a Consumer, notwithstanding that such person does not register with the Website as provided for in clauses 4.1 and 4.2;
2.13 "Website" means the website from which the Services is provided, currently located at http://eservices.joburg.org.za;
2.14 "Website Terms" means these terms and conditions.
3. WEBSITE TERMS
3.2 These Website Terms apply specifically to the Services accessible from the Website and do not apply to the general City of Johannesburg Website located at www.joburg.org.za which is governed by its own website terms and conditions of use located at http://www.joburg.org.za/help/disclaimer.stm.
3.3 These Website Terms set forth the general terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms.
3.4 To the extent that:
3.4.1 any individual Service selected by the User is not dealt with in the Specific Terms, such individual Service shall be governed by the General Terms;
3.4.2 any Specific Terms are binding upon the User, those Specific Terms are deemed included in the Website Terms.
3.6 These Website Terms shall be deemed to have been accepted by the User at the time when the User first registers with the CoJ as contemplated in clause 4 and are thereafter confirmed each time the User uses the Services.
4. COMMENCEMENT AND DURATION
4.1 Before placing an Order, the User shall first have registered with the CoJ, which registration is restricted to Users who may legally enter into binding and enforceable agreements. Persons under the age of 18 years of age or who are not legally permitted to enter into binding and enforceable agreements may not register.
4.2 Should the CoJ accept the User's registration, the User will be e-mailed confirmation of its registration together with its User Data.
4.3 The placing of an Order will be treated as an offer by the User to make application for the Service/s. The User's offer shall only be deemed to have been received by the CoJ once this has been confirmed to the User by the CoJ. Although the Website is configured to confirm receipt of any offer ("Confirmation"), technical or other problems may delay or prevent such Confirmation. The User should contact the CoJ if it does not receive Confirmation from the CoJ shortly after having sent the offer. Confirmation shall not mean that a transaction has been concluded. It merely serves to confirm that the application has been received by the CoJ. Confirmation is deemed to have been sent by the CoJ as soon as this is reflected in the CoJ's log files.
4.4 These Website Terms shall commence and become binding on the User with effect from when the User accesses the Website.
4.5 These Website Terms shall endure for an indefinite period until terminated in terms of the provisions of clause 12 below.
4.6 Both Parties record and agree that Johannesburg, Gauteng shall be the place where acceptance of the Website Terms shall be deemed to have taken place.
5.1 A User will not be able to access and use the Services without its User Data. As such, the User agrees not to provide the User Data to any person or entity not a party to this Agreement and any unauthorised provision of a password by the User to a third party shall constitute a breach of this Agreement and the CoJ shall be entitled to exercise its rights under clause 19 until such time as the matter has been investigated and resolved to the satisfaction of both Parties.
5.2 If the User suspects that the confidentiality of the User Data has been compromised, the User shall immediately advise the CoJ of this fact using the procedure under clause 12. Upon receipt of the e-mail, telephone call or facsimile, the CoJ shall suspend access to the Website until such time as the matter has been resolved to the satisfaction of both Parties.
5.3 The User shall remain responsible for all Order's placed prior to the suspension of the User's registration.
6.1 Whilst the CoJ monitors the Services to determine that its facilities are operating satisfactorily, the CoJ does not, as a general practice, monitor its Users activities. Where the CoJ is required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication-Related Act, 70 of 2003 ("the Monitoring Act"), any interception of communications shall be strictly carried out in accordance with the requirements of the Monitoring Act, as and when required under the Monitoring Act.
6.2 The User specifically agrees that it shall have no recourse against the CoJ in the event of the CoJ acting in terms of clause 6.1 and accordingly waives its right to make any claim or demand or to institute any legal proceedings against the CoJ.
7.1 The CoJ has used its best efforts to ensure that proper security controls are in place around the Website.
7.2 Whilst the CoJ does facilitate the use of security features, processes and procedures on the Website which are in accordance with or higher than accepted industry standard, the CoJ cannot guarantee the security of the information that is transmitted by the User to the CoJ. Notwithstanding various precautions taken by the CoJ, the User accepts that by transmitting information over the Internet, such information may be subject to unlawful access or monitoring and that the CoJ is accordingly not liable for any loss, harm or damage which the User may suffer as a result of this.
7.3 The CoJ does not process any credit card transactions directly and instead makes use of the PayU solution and the User shall at all times be subject to PayU's Terms and Conditions located at https://www.payu.co.za/legal/payu-user-agreement. All credit card transactions are handled between PayU and the banks and never between the User and the CoJ. The credit card transaction take place in an environment well protected against security threats and PayU makes use of a double firewall security system, extensive use of SSL encryption for all transactions. Once a User begins the checkout process it will notice that the site URL will change from http to https and a small padlock will appear at the bottom of the User's screen. This is indicative of a secure Internet transaction.
7.4 All User Data allocated to the User is personal to the User and the User shall be liable for any loss or damage sustained by the User, the CoJ or any third party as a result of any actions by the User or any other person to whom the User has disclosed its User Data.
7.5 The User authorises the CoJ to act on any instruction given by and/or purporting to originate from the User, even if it transpires that both the CoJ and the User have been defrauded by someone else, unless the User has notified the CoJ in terms of clause 7.6 below prior to the CoJ acting on a fraudulent instruction.
7.6 If any security violations are reasonably believed to have occurred in connection with the User's account, the CoJ will investigate forthwith and, if necessary, change the relevant User data, including access codes and passwords and give the User immediate notification. A copy of the results of any investigation will be provided to the User at no cost.
7.7 The User shall advise the CoJ immediately should any other person gain access to its User Data following the CoJ procedures relating to reporting misuse outline in clause 5.2 above and to the Web Manager using the procedure under clause 12 and shall give its full co-operation to the CoJ in any investigation carried out by the CoJ.
7.8 The User hereby indemnifies the CoJ against any claim howsoever arising from (i) the User's disclosure of its User Data to a third person, (ii) the use of such User Data by a third person and/or (iii) any action by the User or third party as a result thereof.
7.9 The CoJ reserves the right to take whatever action it may deem necessary at any time to preserve the security and reliable operation of its infrastructure and the User undertakes that it will not do or permit anything to be done which will compromise the CoJ's security.
7.10 Although the CoJ applies reasonable endeavours to provide disaster recovery, the CoJ does not specify any recovery time, nor is the CoJ liable for any loss or damage of whatever nature incurred or suffered by the User arising from or in connection with any cause whatsoever as a result of its failure to provide, or delay in providing, or providing only partial disaster recovery.
8. LICENSING PROVISIONS
8.1 The CoJ grants the User a limited, non-exclusive license to access and make personal use of the Website. The User shall not be allowed to modify (other than by page caching) the Website or any portion thereof without the prior written consent of the CoJ.
8.2 The aforesaid license does not permit any resale or commercial use of the Website or its contents, any collection and any use of any Product listings, descriptions or prices, any derivative use of the Website or its contents, any downloading or copying of account information for the benefit of another merchant, or any use of data mining, robots or similar gathering and extraction tools.
8.3 The Website, or any portion thereof, may not be reproduced, duplicated, copied, sold or otherwise exploited for any commercial purpose without the prior written consent of the CoJ. The User shall furthermore not frame or utilise any framing techniques to enclose any Marks or other proprietary information (including images, text, page layout or form) without the CoJ's prior written consent.
8.4 Neither the User nor any third party shall use any meta tags or any other "hidden text" utilising the CoJ name or the Marks without the prior written consent of the CoJ.
8.5 The User is hereby granted a limited, revocable and non-exclusive right to create hyperlink to the homepage of the CoJ Website as long as the hyperlink does not portray the CoJ in a misleading, derogatory or otherwise offensive manner.
8.6 The CoJ may provide hyperlinks from the Website to other websites. The CoJ is not responsible for evaluating the content or offerings made on those websites nor does it endorse the offerings of the Websites to which hyperlinks may be provided or, that of any third party Websites which may be accessed through these hyperlinked websites. No liability shall be attributed to the CoJ for any dealings with any other websites accessed through hyperlinks provided by the CoJ and the User shall be solely responsible for assessing the terms and conditions of any of these websites.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The User is obliged to comply with all laws applicable to any Intellectual Property Rights in respect of any data and/or information accessed, retrieved or stored by the User through the User's use of the Services.
9.2 The User is prohibited from using any of the Marks without the prior written approval of the CoJ.
9.3 The CoJ will wholly and exclusively retain all existing, and become the exclusive and unencumbered owner of all Intellectual Property Rights employed in or otherwise related to its network infrastructure, business and the provision of any of the Services.
10. NO WARRANTIES
10.1 The CoJ warrants that it has the facilities, infrastructure, capacity and capability to provide these services.
10.2 Save for the aforegoing warranty, the Services are provided as is and as available.
10.3 The Services are accordingly provided "as is" and "as available" and without any warranty of any nature whatsoever, whether express or implied, including without limitation warranties of merchantability, fitness for purpose, title or non-infringement.
10.4 Under no circumstances shall any advice or information furnished by the CoJ, its agents or employees be construed as a warranty of any kind.
11. SUSPENSION OF THE SERVICES
11.1 The CoJ is entitled to temporarily suspend its obligations in terms of these Website Terms (i) in order to give effect to the provisions of clause 5.2 and (ii) in order to service, repair, maintain, upgrade, modify, alter, replace or improve the Services.
11.2 For purposes of clause 19.1(ii), where circumstances permit, the CoJ will use its best endeavours to provide prior notice of any such suspension to the User and the CoJ shall not be liable for any loss or damage of whatever nature incurred or suffered by the User arising from or in connection with or from any cause whatsoever as a result of such suspension.
12.1 Termination by CoJ: The CoJ may terminate these Website Terms and the Services, or individual Services, on thirty (30) days written notice to the User.
12.2 Breach: Should the User breach any of these Website Terms, then the CoJ shall be entitled, without prejudice to any other rights that the CoJ may have and without notice to the User, to (i) terminate or suspend the User's use of any or all of the Services, (ii) terminate its relationship with the User and/or (iii) list the User with any credit bureau which the User hereby expressly consents to. In all instances, the CoJ shall be entitled to recover all of its costs associated with the User's breach, including without limitation, legal costs on an attorney and own client scale, whether incurred prior to the institution of, or during legal proceedings, or if judgment has been granted, in connection with the satisfaction of such judgment.
12.3 Adjudication of disputes: All disputes shall be referred to arbitration and resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator. The arbitrator shall be agreed upon between the Parties and failing such agreement, and within a period of ten (10) days after the arbitration has been demanded by either the Parties, either of the Parties shall be entitled to request the chairperson for the time being of AFSA to make the appointment who, in making the appointment, shall have regard to the Party's requirement of speedy arbitration. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator. The arbitration shall be held (i) in Johannesburg at a venue agreed to between the Parties in writing, (ii) in English and (iii) as soon as practically possible and with a view to it being completed within twenty one (21) days after it has been demanded. The Parties irrevocably agree that any award that may be made by the arbitrator (i) shall be final and binding, (ii) will be carried into effect and (iii) may be made an Order of any Court to whose jurisdiction the Parties are subject. The provisions of this clause (i) constitute an irrevocably consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or to claim at any such proceedings that it is not bound by such provisions and (ii) are severable from the other provisions of these Website Terms and shall remain in effect notwithstanding the termination of or invalidity of a reason of any of these Website Terms.
13. FORCE MAJEURE
13.1 On the happening of a Force Majeure Event, any delay or failure in performance or breach by the CoJ occasioned thereby or resulting therefrom will not be deemed to be a breach of these Website Terms by the CoJ, nor shall it subject the CoJ to any liability whatsoever.
13.2 For purposes of clause 13.1, a "Force Majeure Event" means any act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot, blockage, embargo, sanctions, epidemics, act of any Government or other authority, compliance with Government orders, failure of any supplier of electricity, including Eskom, and telecommunications infrastructure and/or telecommunications lines provided by any third party, including, but not limited to, the Telkom Limited group of companies, or any circumstances of like or different nature beyond the CoJ's reasonable control.
14. EXCLUSION AND LIMITATION OF LIABILITY
14.1 Neither the CoJ, its employees, agents, consultants and advisers shall be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising, or may arise out of the Services under contract, delict or otherwise), sustained by the User, including but not limited to any loss of profits, loss of operation time, corruption or loss of information and/or loss of contracts and/or profits.
14.2 The CoJ's total liability to the User shall accordingly be limited to the payment of direct damages only, which direct damages shall be limited to a maximum amount of (i) 1 months of the User's service fees or (ii) R1 000,00 (One Thousand Rand), whichever is the lesser.
14.3 The limitation of liability under clause 14.2 shall apply notwithstanding the fact that the CoJ may have been advised of the possibility of such loss or damage being incurred prior to its occurrence.
15. AMENDMENTS TO WEBSITE TERMS
15.2 The User agrees that it is its responsibility as a diligent user to peruse any amended Website Terms posted on the Website and the User undertakes to regularly visit the Website so as to remain advised of such amended Website Terms. If the User objects to any amended Website Terms which are binding upon it or are to become binding upon it, the User is entitled to terminate its relationship with the CoJ.
15.3 Should the CoJ elect to give the User notice of any amendment to any of these Website Terms, the User hereby grants the CoJ the authority to issue such notification by e-mail. Any such notice so issued by the CoJ shall as far as it contains contractual terms pertaining to the Services, also form part of these Website Terms. A certificate signed by the CoJ Network Administrator responsible for the giving of notices by e-mail (whose authority it shall be necessary to prove) shall be prima facie proof of the first date of publication, withdrawal or content of a notification.
16. DISCLOSURES IN TERMS OF SECTION 43 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT
The following information is made available by the CoJ to the User in compliance with section 43 of the Electronic Communications and Transactions Act, 25 of 2002:
Full name and legal status of Website owner: The City of Johannesburg
Directors: Mr Richard Nene
Registered office: 222 Smit Street, 9th Floor, Braamfontein
Postal address: P O Box 1049, Johannesburg, 2000, Gauteng, South Africa
Website address: http://eservices.joburg.org.za
Address for service of all legal documents: 222 Smit Street, 9th Floor, Braamfontein
Main business: Local government service provider
Description of Services: (i) Ability to access water and lights invoices online and receive statements via e-mail or MMS every month, (ii) Viewing the progress of building plans online, (iii) Completing online valuations forms to assist the CoJ in evaluating the User's property correctly, (iv) and the Geographical Information Services: online mapping services (juristic persons only);
Terms and Conditions governing this Agreement: The full terms and conditions applicable to the Services available from the Website and any amendments thereto are located in these Website Terms and any applicable Specific Terms and are located at the Website.
Dispute resolution: The provisions governing dispute resolution are stipulated under clause 12.3.
Minimum duration of Agreement: There shall be no minimum duration of the Agreement/s entered into between the CoJ and registered Users. All Agreement/s shall endure indefinitely subject to either Parties rights to terminate the Agreement. The termination of the Agreement by either Party shall be without prejudice to any rights between the Parties existing at the time of termination, which shall endure beyond the date of termination;
Complaints: Users may lodge complaints concerning the Website with the CoJ at: City of Johannesburg, Information Technology, The Web Manager, 9th Floor, 222 Smit Street. Braamfontein, alternatively submit a query / message to the Web Manager by completing the Web Manager Feedback Form which is located on the left had side of the website under the link "Contact Us"
17.1 Whole Agreement: The Agreement constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in the Agreement.
17.2 No Variation: No variation or consensual cancellation of the Agreement and no addition to the Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives.
17.3 Waiver: No waiver of any of the terms and conditions of the Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
17.4 Severability: Should any of the terms and conditions of the Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions, which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.
17.5 Applicable Law: The Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
17.6 Survival: Notwithstanding termination of the Agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect. ?