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WEBSITE TERMS AND CONDITIONS
IN TERMS OF SECTION 11 OF THE ELECTRICAL COMMUNICATIONS AND TRANSACTIONS (ECT) ACT 25 OF 2002 (www.acts.co.za/ect_act/) AND THE COMMON LAW OF CONTRACT, THESE TERMS AND CONDITIONS ARE VALID, BINDING AND ENFORCEABLE AGAINST ALL PERSONS THAT ACCESS THE HITACHI POWER AFRICA WEBSITE, WEB PAGES OR ANY PART THEREOF.
IF YOU DO NOT AGREE TO BE BOUNDED BY THESE TERMS AND CONDITIONS YOU MUST LEAVE THE HITACHI POWER AFRICA WESITE WITHOUT DELAY, AS FURTHER USE WILL AUTOMATICALLY BIND YOU TO THESE TERMS AND CONDITIONS.
DEFINITIONS AND INTERPRETATIONS
a) “Hitachi Power Africa” means Hitachi Power Africa (Pty) Ltd (registration number: 2005/009154/07), a company incorporated in terms of the Company Law of the Republic of South Africa, with its physical office at Building 10, The Country Club Estate, 21 Woodlands Drive, Woodmead, Sandton.
b) “The Hitachi Power Africa website” means the websites, hosted and operated by Hitachi Power Europe GmbH, Germany and located at http://www.hitachi-power.co.za including services available on and through the websites, and furthermore including source code, meta tags, postings and any page, part or element thereof;
c) “User” means any person who enters or uses Hitachi Power Africa websites, notwithstanding the fact that such a person only visits the home page of the Hitachi Power Africa website;
d) References herein to the singular include 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 (www.acts.co.za/ect_act/). The fact that some or all the hyperlinks may, from time to time, be non-operational, shall not affect the validity and interpretation of these terms and conditions.
1 GENERAL
Hitachi Power Africa is South African based company with its main business in the power plant engineer and construction sector.
2 ALLOWED USE AND LICENCE
2.1 Hitachi Power Africa licenses the User to view, download and print the content of the Hitachi Power Africa website, provided that such content is used for private, personal, educational and/or non-commercial purposes only.
2.2 Content from the Hitachi Power Africa website may not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of Hitachi Power Africa.
2.3 Users may only access, brows and use the Hitachi Power Africa website for legitimate personal or commercial purposes and may not use the Hitachi Power Africa website or any Hitachi Power Africa 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 Hitachi Power Africa 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 Hitachi Power Africa 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 twelve hours; and
2.4.4 The cached content is removed or updated when so required by Hitachi Power Africa.
2.5 If any User uses content from the Hitachi Power Africa website is breach of the provisions detailed herein:
2.5.1 Hitachi Power Africa reserves the right to claim damages from the User;
2.5.2 Hitachi Power Africa reserves the right to institute criminal proceedings against the User; and
2.5.3 Hitachi Power Africa 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 Hitachi Power Africa website from any other source shall be directed at the home page of Hitachi Power Africa website. Hitachi Power Africa shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted form the use of content from the Hitachi Power Africa website, if such content was accessed through a hyperlink not directed at the home page of the Hitachi Power Africa website. Persons that wish to link to content beyond the home page of the Hitachi Power Africa website shall do so at their own risk and indemnify Hitachi Power Africa against any loss, liability or damage that may result from the use of content from the Hitachi Power Africa website, if such content was accessed through a hyperlink not directed at the home page of Hitachi Power Africa website;
2.7 No person may frame the Hitachi Power Africa website, in any manner whatsoever, without prior written consent of Hitachi Power Africa.
2.8 Users may quote small and reasonable amounts of content available from the Hitachi Power Africa website, in any format, subject to such a quote being placed in inverted commas and acknowledged.
2.9 No persons may, without the prior written consent of Hitachi Power Africa, frame the Hitachi Power Africa website in any manner whatsoever.
2.10 Apart from bona-fide search engine operators and use of the search facility provided on the Hitachi Power Africa website by Users, no person may use or attempt to use any technology or applications (including we crawlers, robots or web spiders) to search, collect or copy content from the Hitachi Power Africa website, for any purposes, without the prior written consent of Hitachi Power Africa.
2.11 Email addresses, names, telephone numbers and fax numbers published on the Hitachi Power Africa 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 the Hitachi Power Africa website may be used to communicate unsolicited communications to Hitachi Power Africa and all rights detailed in Section 45 of the ECT Act are reserved.
2.12 All licenses and/or permissions granted in terms of this clause are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Hitachi Power Africa at any time without prior notice or reasons.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 All intellectual property on the Hitachi Power Africa 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 Hitachi Power Africa and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the User in clause2, all other rights to intellectual property on the Hitachi Power Africa website are expressly reserved.
3.2 No person may use logos, icons or trade marks from the Hitachi Power Africa website as hyperlinks or other purposes without Hitachi Power Africa’s prior written consent.
4 SOFTWARE AND EQUIPMENT
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 account required to access the Internet and Hitachi Power Africa website and/or download content from the Hitachi Power Africa website.
5 DISCLOSURES REQUIRED BY SECTION 43 OF THE ECT ACT
Access to the services, content, software and downloads available from the Hitachi Power Africa website may be classified as “electronic transactions” as defined in terms of the ECT Act (www.acts.co.za/ect_act/) and therefore Users have the rights detailed in Chapter 7 of the ECT Act (www.acts.co.za/ect_act/) and amongst others, the duty to disclose the following information:
5.1 The full name and legal status of the website owner: Hitachi Power Africa;
5.2 Directors: J. Arendse, J. Musel, R.A. Duff, S.H. Chaba, H. Kaneda, Dr. T.R. Mokoena (Alternates: S.D. Peiser, M. Netsianda, R. Kiechl, P.R. Hofelich)
5.3 Street Address: Building 10, Country Club Estate, Woodmead Sandton;
5.4 Physical address for receipt of legal service: Building 10, Country Club Estate, Woodmead, Sandton;
5.5 Telephone number: +27 (0) 11 260 4300
5.6 Fax number: +27 (0) 11 656 3909
5.7 Main business: Hitachi Power Africa is a South-African company with its main business in the power plant engineering and construction sector
5.8 Code of Conduct: available upon request (g_klopper@hitachi-power.co.za or info@hitachi-power.co.za)
5.9 The website address of Hitachi Power Africa is: http://www.hitachi-power.co.za
5.10 The official email address of Hitachi Power Africa website is: info@hitachi-power.co.za
5.11 Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:
5.11.1 access to the Hitachi Power Africa website;
5.11.2 the inability to access the Hitachi Power Africa website;
5.11.3 the services and content available from the Hitachi Power Africa website;
5.11.4 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 won client. The expedited rules of the Arbitration Foundation of South Africa may be downloaded from the following website: http://www.arbitration.co.za;
5.12 Cooling-off period: In terms of the operation of section 42 (1)(d) of the ECT Act, the cooling-off period provision of the ECT does not apply to this Hitachi Power Africa website and;
5.13 Users may lodge complaints concerning the Hitachi Power Africa website with Hitachi Power Africa at:
+27 11 260 4300 or k_weber@hitachi-power.com or info@hitachi-power.co.za
6 CHANGES AND AMENDMENTS
Hitachi Power Africa 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 Hitachi Power Africa website;
6.3 discontinue any aspect of the Hitachi Power Africa website or service(s0 available from the Hitachi Power Africa website; and/or
6.4 change the software and hardware required to access and use the Hitachi Power Africa website.
7 PRIVACY
7.1 Hitachi Power Africa shall take all reasonable steps to protect the personal information of Users and for the purpose of this clause; “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA)
http://www.acts.co.za/promotion_of_access_to_information_act_2000.htm.
7.2 Hitachi Power Africa may electronically collect, store and use the following personal information of Users:
7.2.1 name and surname;
7.2.2 South African identity number;
7.2.3 area code;
7.2.4 street address;
7.2.5 postal address;
7.2.6 title;
7.2.7 contact numbers;
7.2.8 non-personal browsing habits and click patterns;
7.2.9 e-mail address; and/or
7.2.10 IP address
7.3 Hitachi Power Africa 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 Hitachi Power Africa 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 Hitachi Power Africa may collect, maintain, save, compile, share, disclose and sell any information collected from users, subject to the following provisions:
7.5.1 Hitachi Power Africa shall disclose personal information from Users unless the User consents thereto;
7.5.2 Hitachi Power Africa shall disclose personal information without the User’s consent only through due legal process; and
7.5.3 Hitachi Power Africa may compile, use and share any information that does not relate to any specific individual.
7.6 Hitachi Power Africa owns and retains all rights to non-personal statistical information collected and compiled by Hitachi Power Africa.
8 HYPERLINKS TO THIRD PARTY SITES
8.1 Hitachi Power Africa may provide hyperlinks to websites not controlled by Hitachi Power Africa (“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 Hitachi Power Africa does not editorially control the content, products and/or services on target sites and shall not be liable, in any manner whatsoever, the access to inability to access, use, and inability to use or content available on or through target sites.
9 SECURITY
9.1 Hitachi Power Africa shall take all reasonable steps to secure and/or prevent the content of the Hitachi Power Africa website and the information provided by and collected from Users, and unauthorized access and/or disclosure. However, Hitachi Power Africa does not make any warranties or representations that content shall be 100% safe or secure.
9.2 Subject to the provisions of sections 43(5) and 43(6) of the ECT Act (www.acts.co.za/ect_act/), if applicable, Hitachi Power Africa 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 Hitachi Power Africa 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 the Hitachi Power Africa website or the server and computer network that support the Hitachi Power Africa website.
9.4 Notwithstanding criminal prosecution, any person who delivers or attempts to deliver any damaging code to the Hitachi Power Africa website, whether on purpose or negligently shall without any limitation, indemnify and hold Hitachi Power Africa harmless against any and all liabilities, damages, risks and losses that Hitachi Power Africa and its partners / affiliates may suffer as a result of such delivery, 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 Hitachi Power Africa website and Hitachi Power Africa 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 sections 85 to 88 of the ECT Act (www.acts.co.za/ect_act/) shall, notwithstanding criminal prosecution be liable for all resulting liabilities, losses, destruction or damages suffered and/or incurred by Hitachi Power Africa and its partners/affiliates due to or related to these illegal actions.
10 DISCLAIMER AND LIMITATIONS OF LIABILITY
10.1 Subject to the provisions of sections 43(5) and 43(6) of the ECT Act (www.acts.co.za/ect_act/), if applicable, and as far as allowed by law, Hitachi Power Africa (including its subsidiaries, shareholders, business units, employees, suppliers, Internet service providers, partners, affiliates and agents) shall not be liable for any damage, loss, liability or expenses of any nature incurred by whomsoever and resulting from:
10.1.1 access to the Hitachi Power Africa website;
10.1.2 access to websites linked to the Hitachi Power Africa website;
10.1.3 inability to access websites linked to the Hitachi Power Africa websites;
10.1.4 inability to access the Hitachi Power Africa website;
10.1.5 content available on the Hitachi Power Africa website;
10.1.6 service available from the Hitachi Power Africa website;
10.1.7 communication mechanisms available from the Hitachi Power Africa website;
10.1.8 products available from the Hitachi Power Africa website;
10.1.9 downloads and use of content from the Hitachi Power Africa website; and
10.1.10 any other reason not directly related to Hitachi Power Africa’s gross negligence.
10.2 The Hitachi Power Africa 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 Hitachi Power Africa, that the content available from ant through the Hitachi Power Africa website meets the User’s individual requirements and is compatible with User’s computer hardware and/or software.
10.3 Information, ideas and opinions expressed on the Hitachi Power Africa website should not be regarded as professional advice or the official opinion of Hitachi Power Africa and Users are encouraged to obtain professional advice before taking any course of action related to the information, ideas or opinions expressed on the Hitachi Power Africa website.
10.4 Hitachi Power Africa does not make any warranties or representation that content and services available from the Hitachi Power Africa website shall in all cases be true, correct or free from any errors. Hitachi Power Africa shall take all reasonable steps to ensure the quality and accuracy of content available from the Hitachi Power Africa website.
10.5 Hitachi does not make any warranties or representations that the Hitachi Power Africawebsite shall be available at all times. Users acknowledge that the Hitachi Power Africa website may be unavailable due to updates or other causes beyond the reasonable control of Hitachi Power Africa, including but not limited to virus infection, unauthorized access (hacking), power failure or other “acts of God”
11 COMMENTS
Hitachi Power Africa does not edit or scan comments posted by the User or emails from the User to Hitachi Power Africa or Hitachi Power Africa website and shall not be liable for any defamatory, illegal, infringing, hateful, pornographic or harmful postings.
12 REMOVAL AND CORRECTION OF CONTENT
Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from the Hitachi Power Africa website to Hitachi Power Africa and undertake 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 INTERCEPTION OF COMMUNICATIONS
Subject to the provisions of the Regulations of Interception of Communications (RIC) Act 70 of 2002, the User agrees to Hitachi Power Africa’s right to intercept, block, filter, read, delete, disclose and use all communications (including all “data messages” as defined in the ECT Act (www.acts.co.za/ect_act/) sent or posted by the User to the Hitachi Power Africa website, its staff and employees. The RIC Act may be downloaded from: http://www.info.gov.za/acts/2002/a70-02/
14 ENTIRE AGREEMENT AND SEVERABILITY
14.1 These terms and conditions constitute the entire agreement between Hitachi Power Africa and the User and all shall take precedent over any disclaimers and/or legal notices attached to any communications and/or posting received by Hitachi Power Africa from the User.
14.2 Any failure by Hitachi Power Africa 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 terms or conditions shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
15 AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT
The User and Hitachi Power Africa agree that:
15.1 The User shall not be bound to these terms and conditions and such agreement is concluded in Johannesburg (South Africa) at the time the User enters the Hitachi Power Africa website for the first time;
15.2 data messages (as defined in the ECT Act (www.acts.co.za/ect_act/) addressed by the User to Hitachi Power Africa shall only be deemed to have been received if and when responded to. An auto-reply shall not constitute such “response” for the purposes of this clause;
15.3 data messages (as defined in the ECT Act (www.acts.co.za/ect_act/) addressed to the User by Hitachi Power Africa shall be deemed to be received by the User as detailed in section 23(b) of the ECT Act (www.acts.co.za/ect_act/);
15.4 data messages (as defined in the ECT Act (www.acts.co.za/ect_act/) addressed to the User by Hitachi Power Africa 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 Hitachi Power Africa; and
15.6 the User agrees and warrants that data messages that are sent to Hitachi Power Africa from a computer, IP address or mobile device normally used by or owned by the User, were sent and/or authorised by the User personally.
16 APPLICABLE AND GOVERNING LAW
These Terms and Conditions are subject to the laws of the Republic of South Africa.
17 LEGAL COSTS
Hitachi Power Africa shall not be liable for costs incurred by users to obtain professional advice relating these terms and conditions.
Version: July 2009