Master Service Terms
1.1. The Service Provider will provide the Services to the Customer in accordance with the terms and conditions set out in the following documents:
1.1.1. the Service Order Form submitted by the Customer;
1.1.2. the Service Annexure; and
1.1.3. these Master Service Terms.
1.2. Taken together the aforesaid documents make up the contract between the Customer and the Service Provider for the provision of the Service and shall be referred to herein as “the Agreement”.
1.3. In the event of any conflict between the provisions of the documents described in clause 1.1, the order of precedence shall be:
1.3.1. the Service Order Form; then
1.3.2. the Service Annexure; and then
1.3.3. the Master Service Terms.
1.4. The Customer agrees that, should any amendments be made to the Agreement or any part thereof, such amendments shall not be binding on either the Customer or the Service Provider unless and until such amendments are deemed to be accepted by the Customer, or its duly authorised representative, and if proposed by the Customer signed by a duly authorised representative of the Service Provider. Should an amendment be made to the Agreement by the Service Provider, the Customer shall within 5 (five) days’ from notification thereof raise his/her/its concern in writing in relation thereto. Failure to do so, will be taken as a deemed acceptance thereof and shall consequently be binding on the Customer.
2. DEFINITIONS AND INTERPRETATION
2.1. Unless the context indicates otherwise, in this Agreement the following expressions shall have the meanings given to them hereunder and similar or equivalent expressions shall have corresponding meanings:
2.1.1. Affiliate means in relation to a Party:
188.8.131.52. a person who directly or indirectly controls such Party;
184.108.40.206. a person who is directly or indirectly controlled by such Party;
220.127.116.11. a person who is controlled directly or indirectly by the parent company of such Party, and for the purposes of this clause 2.1.1 “control” means (i) ownership of 50% (fifty percent) or more of the voting rights of a company, or (ii) otherwise having the power to govern the financial and the operating policies of a company, or to appoint the management of a company; and includes a connected person as defined in section 1 of the Income Tax Act 58 of 1962;
2.1.2. Agreement means collectively, the Master Service Terms, the Service Annexure and the Service Order Form;
2.1.3. Acceptable Use Policy (AUP) means the Service Provider’s Acceptable Use Policy which is available on its website (https://www.herotel.com/acceptable-use-policy/) and which may be updated from time to time, as notified to the Customer;
2.1.4. Business Day means any day which is not a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
2.1.5. Calendar Month means any one of the 12 (twelve) months in the year according to the Gregorian calendar, from the first day to the last day of the respective month;
2.1.6. Charges means the charges payable by the Customer to the Service Provider as detailed in the Service Order Form;
2.1.7. Confidential Information means all information (in whatever format) which:
18.104.22.168. relates to the Agreement;
22.214.171.124. is designated as confidential by either Party;
126.96.36.199. relates to the business affairs, networks, customers, products, services, developments, trade secrets, know-how and employees of the Parties (including, in the case of the Customer, Personal Information); and/or
188.8.131.52. which may reasonably be regarded as being proprietary and confidential information of the Party disclosing such information;
2.1.8. Customer means the natural or juristic person described in the Service Order Form;
2.1.9. Customer Site means the site(s) specified in a Service Order Form at which a Service is to be provided;
2.1.10. Early Termination Charges means the charges, calculated in clause 20.3, which will be payable by the Customer to the Service Provider in terms of clause 20.2, should the Customer seek to terminate this Agreement during the Minimum Service Term for any reason other than breach or a Force Majeure Event;
2.1.11. Fair Use Policy (FUP) means the Service Provider’s Fair Use Policy, which is available on its website (https://www.herotel.com/fair-use-policy/) and which may be updated from time to time, as notified to the Customer;
2.1.12. Force Majeure Event means any event, the cause of which is beyond a Party’s reasonable control and which affects its ability to perform any or all of its obligations, including but is not limited to, fire, flood, lightning, explosion, power outages, war, acts of terrorism, strike, embargo, governmental requirement, civil or military authority, acts of God, epidemic, pandemic, quarantine, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of third party providers of telecommunications services;
2.1.13. Internet means the international interconnected system of networks using standardised communication protocols to exchange data communications;
2.1.14. Master Service Terms means this document excluding the Service Order Form and Service Annexure;
2.1.15. Minimum Service Term means the minimum period for which the Services will be provided by the Service Provider to the Customer, as specified in the Service Order Form;
2.1.16. Modify/Modification means to modify, alter, repair, attempt to repair, or in any way tamper with the Service Equipment;
2.1.17. Network means the IP Network and the Telecommunications Network and:
184.108.40.206. IP Network means the points of presence, network hubs and host computers owned, operated or used by the Service Provider in connection with the provision of an Internet Service; and
220.127.116.11. Telecommunications Network means the telecommunication system(s) that are owned, operated or used by the Service Provider from time to time;
2.1.18. Parties means the Service Provider and the Customer collectively and “Party” means either one of them as the context requires;
2.1.19. Personal Information means, in relation to POPI, information relating to a living natural person, or juristic person and includes, but is not limited to:
18.104.22.168. contact details such as email addresses, telephone numbers and business or residential addresses;
22.214.171.124. demographic information such as age, sex, marital status, race, birth date and ethnicity;
126.96.36.199. historical information such as employment, financial, educational, and criminal;
188.8.131.52. private correspondence; and
184.108.40.206. private activities such as data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions and other data necessary for the establishment, billing or maintenance of the transmission);
2.1.20. POPI means the Protection of Personal Information Act 4 of 2013, as amended from time to time;
2.1.21. Process or Processing means the handling of Personal Information (as contemplated in POPI) which includes the collection, use, storage, dissemination, modification or destruction thereof regardless of whether such Processing is automated or not;
2.1.22. Service means the Service to be provided by the Service Provider to the Customer as described in the relevant Service Order Form and Service Annexure;
2.1.23. Service Activation Date means the date on which the Service becomes available for use by the Customer;
2.1.24. Service Annexure means the document appended to the Master Service Terms which details the terms and conditions of the Service selected by the Customer and which the Service Provider undertakes to provide;
2.1.25. Service Equipment means the hardware, software, systems, cabling, and facilities owned and provided by the Service Provider at the Customer Site in order to make the Service available to the Customer. Service Equipment shall not include the Network or any hardware or software which fall under a separate supply contract between the Service Provider and a third party. The Customer Service Equipment may also be referred to as Customer Premises Equipment or CPE;
2.1.26. Service Levels means the levels or standards for performance of the Service and against which the Service Provider’s performance thereof may be measured;
2.1.27. Service Order Form means the request for supply of a Service as submitted by the Customer and accepted by the Service Provider in accordance with the procedure detailed in clause 4;
2.1.28. Service Provider means the party identified as such on the Service Order Form;
2.1.29. Termination Date means the date on which this Agreement is terminated;
2.1.30. Termination Notice means a notice given by either Party to the other to terminate this Agreement in accordance with the provisions of any of clauses 20, 21, 22 or 23; and
2.1.31. VAT means Value-Added Tax in terms of the Value-Added Tax Act, 1991, as amended.
2.2. Clause headings are for convenience only and shall not be used in the interpretation of this Agreement.
2.3. A reference to any one gender, whether masculine, feminine or neuter, includes the other genders.
2.4. References to persons shall include juristic as well as natural persons and, where the context so dictates, references to the singular shall include the plural and vice versa.
2.5. If any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
2.6. Subject to clause 6, reference to the Service Provider includes reference to any sub-contractor performing any obligation of the Service Provider in terms of this Agreement, on its behalf.
2.7. No provision of this Agreement is intended to contravene the applicable provisions of the Consumer Protection Act 68 of 2008, as amended or repealed from time to time (“the CPA”). All provisions of this Agreement, to the extent that they are governed by the CPA, are to be treated as qualified by the provisions of the CPA to the extent necessary, in order to ensure compliance therewith.
2.8. The rule of construction, namely that an agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
3. SERVICE PROVIDER CUSTOMER PORTAL
3.1. The Service Provider shall grant the Customer access to its online interface (the “Customer Portal”) through an approved user identification (“User ID”) or other authentication mechanism provided by the Service Provider to the Customer.
3.2. Any order for new Services or adjustments made by the Customer to existing Services on the Customer Portal are binding and the Customer assumes full responsibility for payment obligations arising there from.
4. SERVICES, PRODUCTS AND STANDARDS
4.1. The Customer has requested a Service by completing and submitting a Service Order Form to the Service Provider by way of either:
4.1.1. manually completing a Service Order Form, signing same and delivering it to the Service Provider;
4.1.2. by completing and submitting the Service Order Form through the Customer Portal; or
4.1.3. by applying online and submitting the Service Order Form via the Service Providers website.
4.2. The Service Provider is under no obligation to accept a Service Order Form received from a Customer.
4.3. The Agreement shall become binding on the Parties upon the Service Provider confirming its acceptance of the submitted Service Order Form by notifying the Customer thereof in writing.
4.4. Each Service Order Form signed by the Customer and accepted by the Service Provider, in accordance herewith, shall create a separate contract between the Parties pertaining to the Service ordered. The terms of such contract(s) shall be governed by the terms of this Agreement.
4.5. The Service Provider may amend its offering of Services and/or Products on written notice to the Customer. The Service Provider undertakes to provide the Customer with 30 (thirty) days written notice where a Service or Product is discontinued by the Service Provider. In such an instance, the Service Provider shall notify the Customer of alternative Service or Product offerings in line with the monthly Charges payable by the Customer for the discontinued Service or Product.
5. ACCEPTABLE USE AND FAIR USE POLICIES
By subscribing to a Service through means of a Service Order Form, the Customer agrees and undertakes to abide by the Service Provider’s Acceptable Use Policy and Fair Use Policy.
6.1. Subject to clause 6.2, the Service Provider may, in its sole discretion, employ sub-contractors for the execution of all or any portion of the Service.
6.2. The appointment of a sub-contractor shall not relieve the Service Provider of its obligations under this Agreement and accordingly the Service Provider shall:
6.2.1. ensure that all sub-contractors perform in accordance with the applicable provisions of this Agreement; and
6.2.2. remain liable for any act or omission undertaken on its behalf by such sub-contractors.
7. service activation
7.1. The Service Provider shall conduct such testing as it deems appropriate in order to determine that all necessary work has been done in order for the Service to be delivered to the Customer.
7.2. Upon successful completion of the testing the Service Provider will confirm with the Customer that the Service is ready for use by presenting the Customer with written confirmation of such.
8. service performance
8.1. In performing its obligations under this Agreement, the Service Provider shall at all times exercise the same reasonable skill and care as that of a competent provider of similar services.
8.2. The Service Provider shall use reasonable endeavours to ensure that the Service conforms to any service descriptions and/or the Service Levels as set out, or referred to, in the applicable Service Order Form and/or Service Annexure.
9. charges and payment terms
9.1. The Customer shall pay the Charges in accordance with the payment terms contained in the Service Annexure and Service Order Form.
9.2. All Charges and other amounts which may, from time to time, be owed by the Customer are stated inclusive of value added tax, unless clearly indicated otherwise.
9.3. In the event that the Customer defaults in making timeous payment of any amount owed to the Service Provider, it acknowledges and agrees that the Service Provider may suspend the Service(s) and/or report such Customer to a registered credit bureau in accordance with the rights and procedure prescribed in law.
10. OWNERSHIP AND RISK IN SERVICE EQUIPMENT
10.1. The Customer acknowledges that it has no right, title or interest in the Service Equipment (with the exception of a router which the Customer may elect to purchase upfront in terms of the Service Order Form), and that such right, title and interest shall at all times remain vested with the Service Provider.
10.2. Risk of loss or damage sustained to the Service Equipment transfers to the Customer once the Service Equipment has been delivered to the Customer Site, regardless of whether or not it has been fully installed.
10.3. The Customer shall be liable for all damage sustained to the Service Equipment and/or the Network which is the result of:
10.3.1. an act or omission on the part of the Customer, whether wilful or negligent;
10.3.2. the Customer's breach of any of the terms of this Agreement; or
10.3.3. a malfunction or failure of any equipment or facility, provided by the Customer or its agents, employees, or third party suppliers.
10.4. As a result of the aforementioned liability, the Customer is required to obtain sufficient insurance coverage in respect of the Service Equipment.
10.5. The Customer acknowledges and agrees that the Service Provider shall not be held liable for any costs incurred by the Customer which arise as a result of a malfunction or failure of any equipment or facility contemplated in clause 10.3.3.
10.6. The Customer shall return the Service Equipment to the Service Provider after the termination of this Agreement, as provided for in clause 23.2.
11. INTELLECTUAL PROPERTY AND IP ADDRESS
11.1. Any Internet Protocol (IP) addresses assigned to the Customer by the Service Provider, in connection with a Service, shall be used solely in connection with such Service.
11.2. Should the Service be discontinued for any reason, including but not limited to the termination of this Agreement, the Customer’s right to use the IP addresses, associated therewith, shall cease on the date of discontinuation. Upon discontinuation the IP addresses shall immediately be released by the Customer to Service Provider.
12. SERVICE UPGRADES
12.1. The Customer may request that the Service, provided in terms of this Agreement, be upgraded at any time via the Service Provider Portal or by contacting the Service Provider directly, subject to the following:
12.1.1. the operational feasibility of such upgrade, first being assessed and approved by the Service Provider;
12.1.2. the Customer’s account not being in arrears or having any amounts outstanding thereon;
12.1.3. the Customer accepting and paying for any once-off costs that must be incurred in order to implement the requested Service upgrade; and
12.1.4. the monthly Charges in respect of the existing Service will be pro-rated up to the date on which the Service upgrade is activated. The Charges for upgraded Service shall be pro-rated for the remainder of the Calendar Month, once activated.
12.2. The Customer may withdraw any request for a Service upgrade, subject to:
12.2.1. the Customer remaining liable and paying for the Charges applicable to the upgraded Service for the period during which the upgrade Service was provided; and
12.2.2. where the Customer has paid in advance, any refund due will being credited to the Customer’s account and not refunded in cash.
13. SERVICE downgrades
13.1. A Service downgrade may only be requested by the Customer after the expiry of the Minimum Service Term and provided that:
13.1.1. no notice of termination has been given to terminate this Agreement;
13.1.2. where the Service Provider has engaged a third party to provide the Service and there are costs payable to terminate or downgrade these, the Customer shall be liable for such costs and shall pay them on demand to the Service Provider;
13.1.3. where the Customer has paid in advance for the existing Service, any refund due as a result of the downgrade will be credited to the Customer’s account and not refunded in cash; and
13.1.4. where approved Service downgrade requests are received by the 14th day of the month, such downgrade requests will only take effect on the 1st day of the following month. Alternatively, where approved Service downgrade requests are received after the 14th day of the month, such downgrade request will only take effect on the 1st day of the second succeeding Calendar Month.
13.2. There is no charge or fee levied for processing and implementing a downgrade in Service.
14. service provider's warranty
14.1. The Service Provider warrants that:
14.1.1. it has the necessary consents, licences and/or agreements in place, required in order to lawfully provide the Service(s) to the Customer;
14.1.2. all Service Equipment provided will be in good working order, conform to any Service specifications stipulated in the Service Annexure and will be certified as ready for use by the Service Provider on the day of final installation; and
14.1.3. after the Service Activation Date, the Service Provider will, from time to time, make those adjustments and repairs to the Service Equipment as may be necessary in order to maintain the Service Equipment in working order to enable the continued provision of the Service.
14.2. The express warranties contained in clause 14.1 are the sole warranties given by the Service Provider and any and all other warranties, representations and guarantees of any kind (whether statutory, express or implied) are specifically excluded and disclaimed by the Service Provider.
14.3. Except as expressly set forth herein, the Service, all Service Equipment and any other materials are furnished by the Service Provider and accepted by the Customer “as is” and without any warranty. More specifically the Service Provider does not warrant that the Service, the Service Equipment and any other materials provided under this Agreement will meet the Customer’s requirements or that access thereto and/or use thereof will be uninterrupted, error free, or completely secure.
14.4. In all situations involving performance or non-performance of the Service Equipment the Customer's sole remedy shall be the repair or replacement thereof at the discretion of the Service Provider.
15. customer obligations
15.1. The Customer shall:
15.1.1. ensure that the Service Provider, or its authorised representative, is granted access to the Customer Site, for the purpose of, enforcing its rights and fulfilling its obligations in terms of this Agreement;
15.1.2. secure any necessary licences, waivers or consents which the Customer may require in order to enable the Service Provider to perform its obligations and to exercise its rights in terms of this Agreement;
15.1.3. advise the Service Provider in writing of all health and safety rules and regulations, as well as any other reasonable security requirements that must be adhered to at the Customer Site;
15.1.4. provide the Service Provider with such facilities and information as the Service Provider may reasonably require, in order to enable it to perform its obligations or to exercise its rights under this Agreement; and
15.1.5. Supply the Service Provider with all required Personal Information of its appointed authorised representative, should he/she/it not be present for the installation of the Equipment. The authorised representative will be required to be present to oversee the installation of the Equipment and to sign any associated documentation on the Customer’s behalf.
16. CUSTOMER WARRANTIES
16.1. The Customer warrants and undertakes that it shall:
16.1.1. not sell, charge, transfer or otherwise dispose of the Service Equipment (or any part thereof) to any third party;
16.1.2. use the Service Equipment only for the purpose of receiving the Service and in accordance with the Service Provider’s reasonable instructions issued from time to time. In addition thereto, the Customer warrants that it will adhere to any software licence requirements that may be provided with the Service Equipment;
16.1.3. not use the Service Equipment to retransmit the Service or make the Service available to anyone outside the Customer Site;
16.1.4. not move, Modify, relocate or in any way interfere with the Service Equipment (or any words or labels appearing on the Service Equipment) or the Network;
16.1.5. not cause the Service Equipment to be repaired or serviced except by an authorised representative of the Service Provider;
16.1.6. insure and maintain insurance held in respect of the Service Equipment, installed at each Customer Site, against theft and damage;
16.1.7. not create or allow any charges, liens, pledges or other encumbrances to be created over the Service Equipment;
16.1.8. permit the Service Provider to inspect, test, maintain and replace the Service Equipment at all reasonable times; and
16.1.9. upon termination of the Service, allow the Service Provider access to the Customer Site(s) in order to remove the Service Equipment located thereat. Should any construction or alteration to the Customer Site have occurred in order to facilitate the installation of any Service Equipment or the provisions of any Service, the Service Provider is not obliged to restore the Customer Site to the same condition or physical state that it was in prior to such construction or alteration having taken place.
16.2. The Customer further warrants and undertakes that when using the Service(s), it shall at all times:
16.2.1. comply with all relevant legislative and regulatory provisions;
16.2.2. refrain from using the Service for any unlawful, criminal or immoral purpose;
16.2.3. not retransmit the Service or make the Service available to anyone outside the Customer Site, whether by WiFi or any other method of transmission; and
16.2.4. comply with the Acceptable Use and Fair Use Policies, which the Customer undertakes to read, both prior to commencing its use of the Service and from time to time upon receiving notice of any updates thereto.
17. CUSTOMER INDEMNITY
Notwithstanding the provisions of clause 23, the Customer indemnifies the Service Provider, its shareholders, directors, officers and Affiliates against any and all losses, damages, costs, expenses or third party claims arising from any breach, committed by the Customer, of the warranties given in clause 16, without limitation.
18. SUSPENSION of service
18.1. The Service Provider may, at its sole discretion and without prejudice to any right which it might have to terminate this Agreement, elect to immediately suspend the provision of a Service in any of the following circumstances:
18.1.1. where the Customer fails to make payment of the Charges on or before the due date;
18.1.2. where the Service Provider is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulator authority;
18.1.3. where the Service Provider has reasonable grounds to consider that the Service is being used fraudulently or illegally;
18.1.4. where the Service Provider has reasonable grounds to consider that the Customer is, or has been, involved in or connected with any criminal activity; or
18.1.5. where the Service Provider needs to carry out emergency works to the Network or Service Equipment.
18.2. If the Service Provider exercises its right to suspend the Service(s) under clause 18.1.5 it shall, whenever reasonably possible, give prior notice of the suspension to the Customer, as well as the reason therefor and the expected duration thereof. The Service Provider shall in such circumstances use all of its reasonable endeavours to resume the Service(s) as soon as is practically possible.
18.3. If the Service is suspended as a consequence of the breach, fault, act or omission of the Customer, the Customer shall pay to the Service Provider all reasonable costs and expenses incurred by the implementation of such suspension and/or resumption of the provision of that Service.
18.4. If a Service has been suspended for 45 (forty-five) days, from date of invoice, due to non-payment of the Charges by the Customer, the Service shall be terminated and the provisions of clause 20 and clause 23 shall apply.
19.1. The Service shall commence on the Service Activation Date and, unless terminated prematurely as provided for in any of clauses 20, 22 or 25.2, shall endure for at least the Minimum Service Term.
19.2. After the expiry of the Minimum Service Term, and unless and until terminated by either Party as provided for in any of clauses 21, 22.1 or 25.2, the Service Provider shall continue to provide the Service to the Customer on a month-by-month basis.
20. TERMINATION during the minimum SERVICE term
20.1. During the Minimum Service Term:
20.1.1. either Party may terminate this Agreement and the Service provided in terms hereof, in the event of:
220.127.116.11. a breach, as provided for in clause 22.1; or
18.104.22.168. a Force Majeure Event, as provided for in clause 25.2; and
20.1.2. subject to the payment of Early Termination Charges, as detailed in clauses 20.2 and 20.3, the Customer may terminate this Agreement at any time by giving at least 1 (one) Calendar Month’s written notice to the Service Provider (at the address stipulated in the Service Order Form or via the Customer Portal) or, where applicable, such longer period as may be specified in the Service Annexure (“Notice Period”). For the avoidance of doubt, notice of cancellation must be given by no later than 5pm on the last day of the Calendar Month preceding the Notice Period.
20.2. Termination of this Agreement by the Customer in terms of clause 20.1.2 shall entitle the Service Provider to charge the Early Termination Charges.
20.3. The Early Termination Charges, which the Customer hereby irrevocably acknowledges to be reasonable and a genuine pre-estimate of the Service Provider’s damages, shall be calculated as the sum of the following:
20.3.1. 100% (one hundred percent) of the Charges that would have been payable by the Customer to the Service Provider for the remaining portion of the Minimum Service Term;
20.3.2. any termination charges or other costs or expenses incurred by the Service Provider for the cancellation of the local access circuits or related services, as well as, for any equipment provided to the Service Provider in connection with the Service provided to the Customer;
20.3.3. an amount equal to the promotional discount given to the Customer;
20.3.4. the cost of any promotional products or services provided to the Customer by the Service Provider, including, but not limited to, subsidized installation and/or supply of routers; and
20.3.5. the full balance owing under any installation payment plan.
21. termination on or after the expiry of the minimum term
Either Party may terminate this Agreement and the Service provided in terms hereof, by giving written notice to the other Party of at least 1 (one) Calendar Month or, where applicable, such longer period as may be specified in the Service Annexure (“Notice Period”). For the avoidance of doubt, notice of cancellation must be given by no later than 5pm on the last day of the Calendar Month preceding the Notice Period and must be sent to the Service Provider at the address specified on the Service Order Form.
22. termination for BREACH
22.1. Either Party may immediately terminate this Agreement and the Service offered hereunder, by giving written notice to the other Party (“Defaulting Party”), should:
22.1.1. the Defaulting Party commit a material breach of one or more provisions of this Agreement, which breach is incapable of remedy; or
22.1.2. the Defaulting Party has committed a material breach that is capable of remedy, but which it fails to remedy within 10 (ten) Business Days of having been notified thereof.
23. CONSEQUENCES OF TERMINATION
23.1. The expiry or termination of this Agreement shall not affect the provisions of this Agreement that expressly provide for their continued operation upon expiration or termination of the Agreement, or which of necessity must continue to have effect thereafter, notwithstanding that the provisions themselves do not expressly provide for this.
23.2. Upon receipt, by the Service Provider, of a Termination Notice from the Customer, or upon the issue of a Termination Notice by the Service Provider, the following shall occur:
23.2.1. all Charges up to the Termination Date, together with any Early Termination Charges shall immediately become due and payable by the Customer upon presentation of an invoice by the Service Provider;
23.2.2. the Customer shall permit the Service Provider to collect the Service Equipment, which has not been purchased by the Customer, from the Customer Site as soon as is reasonably possible on or after the Termination Date;
23.2.3. the Service Provider shall make a maximum of 3 (three) attempts to collect the Service Provider-owned Service Equipment from the Customer. The first attempt will not attract any fee, whereas the Customer shall be liable for, and shall pay on demand, a call out fee (plus VAT) for any second or third collection attempts, as applicable; and
23.2.4. in the event that the Service Provider is unable to retrieve any or all of the Service Equipment owned by it from the Customer, after 3 (three) attempts, the Customer shall be liable for and shall pay on demand, the full market-related replacement cost of such Service Equipment together with the call out fees (plus VAT) for the second and third unsuccessful collection attempts.
24. LIMITATION OF LIABILITY
24.1. The Parties agree that, in the event of a breach of any of the provisions of this Agreement, the defaulting Party shall be liable to the other Party for all losses which constitute direct and/or general damages. In addition to this, and where the Service Provider is liable to compensate for damages suffered, the extent of liability will be limited to the aggregate payments received by the Service Provider from the Customer in the 12 (twelve) Calendar Months preceding the date on which the claim arose.
24.2. Neither Party shall be liable to the other for any losses which constitute indirect, special or consequential damages.
24.3. The Customer acknowledges that the Service Provider is unable to exercise editorial or other control over any content uploaded or accessible through the Customer’s use of the Service. Consequently, the Service Provider shall have no liability as to the quality, content or accuracy of information received through or as a result of the use of the Service.
24.4. Nothing in this Agreement shall serve to limit either Party's liability in respect of death or personal injury caused by, or arising from, its gross negligence.
25. force majeure
25.1. Should a Party (“Affected Party”) be prevented from fulfilling any of its obligations in terms of this Agreement, as a result of a Force Majeure Event, then:
25.1.1. the affected obligations shall be deemed to have been suspended to the extent and for the duration that the Affected Party is prevented from fulfilling such obligations. As a consequence thereof, the corresponding obligations of the other Party (“Unaffected Party”) shall also be suspended to the corresponding extent;
25.1.2. the Affected Party shall promptly notify the Unaffected Party in writing of such Force Majeure Event. Such notice shall include an estimation of the approximate period for which the suspension, in terms of clause 25.1.1, will endure. Notwithstanding this, such estimate shall not be binding on the Affected Party; and
25.1.3. the duration of this Agreement, as well as, each period within which and each date by which any obligation is required to be performed shall be extended or postponed, as the case may be, by the period of suspension in terms of clause 25.1.1.
25.2. Should a Force Majeure Event continue for more than 30 (thirty) days after the receipt of a notice, referred to in clause 25.1.2, then either Party shall be entitled (but not obliged) to terminate this Agreement by giving not less than 30 (thirty) days written notice thereof to the other Party to that effect.
26.1. Subject to clause 26.2, each Party hereunder, shall:
26.1.1. only use Confidential Information for the purpose of exercising their rights and performing their obligations under this Agreement;
26.1.2. only disclose Confidential Information to a third party with the prior written consent of the Party who originally disclosed such information (except that either Party may disclose Confidential Information to its employees, agents, contractors, professional advisors and auditors (“Authorised Parties”), provided that this is done strictly on a need-to-know basis for the purpose of exercising its rights and fulfilling its obligations under this Agreement); and
26.1.3. ensure that any third party and Authorised Parties, to whom Confidential Information is disclosed, executes a confidentiality undertaking containing substantially similar terms to those contained in this clause 26.1.
26.2. The non-disclosure provisions of clause 26.1 shall not apply to any Confidential Information which:
26.2.1. is in or comes into the public domain other than by breach of clause 26.1;
26.2.2. is or has been independently generated by the recipient Party, as evidenced by written records; or
26.2.3. is properly disclosed pursuant to a separate written consent, statutory obligation, order of a court of competent jurisdiction or the requirement of a competent regulatory body.
27. dispute resolution
27.1. In the event of a dispute concerning this Agreement arising, each Party shall in the first instance promptly bring the dispute to the attention of a director or similar person in a management position.
27.2. If the Customer wishes to dispute any invoice or part of an invoice received from the Service Provider, the Customer shall, before payment for such invoice is due, deliver a notice in writing to the Service Provider setting out the nature of the dispute. Such notice must include:
27.2.1. the date and number of the disputed invoice;
27.2.2. the amount in dispute;
27.2.3. the reason for the dispute; and
27.2.4. supporting documentation, as deemed appropriate.
27.3. Notwithstanding the fact that the Customer may have given notice of a dispute in accordance with clause 27.2, the Customer shall remain liable to pay any undisputed portion of the disputed invoice.
27.4. The Parties shall use all reasonable endeavours to resolve disputes by way of negotiation and as soon as is reasonably practical.
27.5. Should any dispute not have been resolved within 30 (thirty) days of the dispute having been brought to the attention of the Parties, either Party may approach the courts for appropriate relief.
28. processing of personal information
28.1. In terms of POPI, the Service Provider has a legal duty to Process the Customer’s Personal Information in a lawful, legitimate and responsible manner. In order to do so, the Service Provider requires the Customer’s express and informed consent to Process his/her/its Personal Information.
28.2. The reason for the Service Provider collecting and processing the Customer’s Personal Information is to enable it and its appointed agents to:
28.2.1. verify the identity of the Customer;
28.2.2. perform appropriate checks and verifications of the Customer’s credit history and solvency status;
28.2.3. conclude the Agreement with the Customer, fulfil its obligations and exercise its rights in terms thereof, including but limited to, the functions of administering, provisioning, billing and reconciliation, maintenance and support required in terms of the Agreement;
28.2.4. conduct product and service development and improvements;
28.2.5. enable and facilitate fraud detection and prevention;
28.2.6. monitor sales and revenue;
28.2.7. perform market, customer and customer use analyses and to report thereon;
28.2.8. comply with the applicable tax and financial legislation applicable in the Republic of South Africa;
28.2.9. retain certain records and to report to regulatory authorities in accordance with applicable laws in the Republic of South Africa;
28.2.10. notify the Customer of the Service Provider’s existing and new services offered, subject to the Customer’s right at any time to opt out of such communication;
28.2.11. comply with legislation, including but not limited to the Regulation of Interception of Communication Act 2021; and
28.2.12. for any other justifiable reasons as catered for in POPI.
28.3. All Personal Information which the Customer provides to the Service Provider will be held and/ or stored in a secure manner for the purpose of enabling the Service Provider to deliver the Service to the Customer in accordance with the terms of this Agreement.
28.4. The Customer’s Personal Information will be stored electronically in a database. For the purpose of improving the overall quality of the Service and support thereof, the aforementioned database will be accessible to the Service Provider’s appointed agents and its Affiliates.
28.4.1. Such appointed agents and its Affiliates will be obliged to handle the Customer’s Personal Information in accordance with the same standards and security measures as those required and adopted by the Service Provider.
28.4.2. The Service Provider may be required to transfer the Customer’s Personal Information to an agent or its Affiliate, who operates in a foreign country, in order to deliver the Service to the Customer. In such instance, the Customer hereby consents to the transfer of his/her/its Personal Information.
28.4.3. Where the Customer’s Personal Information is required to be transferred to a foreign agent or its Affiliate, the Service Provider will ensure that such information is protected by law and in terms of a binding agreement that ensures adequate levels of protection are afforded to the Customer’s Personal Information.
28.5. Where appropriate or required by law, certain Personal Information may be retained in hard copy. Storage will be secured and audited regularly to ensure the safety and security of the information stored therein.
28.6. Once the Customer’s Personal Information is no longer required, it will be safely and securely archived for the minimum period permissible by law. Thereafter, all the Customer’s Personal Information will be permanently deleted or destroyed.
28.7. In terms of section 11(3) of POPI, the Customer has the right to object, within the prescribed manner, to the Processing of his/her/its Personal Information by the Service Provider. Section 11(1)(d) to (f) provides for reasonable grounds upon which such an objection may be raised unless legislation otherwise provides for such Processing. Upon receipt of a written objection, the Service Provider shall be prevented from Processing such Personal Information until such time as the objection raised has been resolved and/or withdrawn by the Customer.
28.9. The provisions of POPI require that the Personal Information and related details supplied by the Customer to the Service Provider be complete, accurate and up-to-date. It is the responsibility of the Customer to advise the Service Provider of any changes to his/her/its Personal Information, as and when such change arises.
28.10. Provided that a request complies with the procedural requirements stipulated in section 51 of the Promotion of Access to Information Act 2 of 2000, the Customer has the right to request that the Service Provider provide him/her/it with the following information:
28.10.1. the details of any Personal Information held by the Service Provider on the Customer’s behalf; and
28.10.2. the details of how the Service Provider has Processed the Customer’s Personal Information.
28.11. Personal Information will be Processed in accordance with the Service Provider’s privacy policies (located on its website), which will conform with the requirements imposed upon by it by POPI, as amendment from time to time.
29. INFORMED CONSENT GIVEN BY CUSTOMER
The Customer freely and voluntarily provides the Service Provider and its Affiliates with consent to Process its Personal Information, in accordance with the provisions of clauses 28 and 29 of this Agreement and of POPI. The Customer acknowledges that it understands the purposes for which such Personal Information is required and the manner in which it will be Processed, and consents to the Processing thereof.
30. CUSTOMER Declaration
30.1. The Customer declares that:
30.1.1. all Personal Information supplied to the Service Provider (for the purposes of enabling it to provide the Service to the Customer) and related legal and operational reasons are accurate, up-to-date and comprehensive;
30.1.2. he/she/it shall immediately advise the Service Provider of any changes to his/her/its Personal Information as and when this occurs;
30.1.3. he/she/it has the right to object to the Processing of his/her/its Personal Information as detailed in clause 28.7;
30.1.4. he/she/it has a right to access his/her/its Personal Information by giving notice to the Service Provider, as detailed in clause 28.9, and to have any errors in such Personal Information rectified;
30.1.5. he/she/it understands that he/she/it may, subject to clause 30.1.6, withdraw the consent given, in clause 29, by giving written notice to this effect to the Service Provider;
30.1.6. he/she/it understands that the withdrawal of consent contemplated in clause 30.1.5 will not affect the lawfulness of the Processing of Personal Information that occurred before such withdrawal. In addition, the following categories of Processing will not be affected:
22.214.171.124. Processing necessary to carry out actions for the conclusion or performance of this Agreement;
126.96.36.199. Processing that complies with an obligation imposed upon the Service Provider by law;
188.8.131.52. Processing that protects a legitimate interest of the Customer;
184.108.40.206. Processing that is necessary for the proper performance of a public duty by a public body; or
220.127.116.11. Processing that is necessary for pursuing the legitimate interest of the Service Provider or that of a third party to whom the information is supplied to.
30.1.7. while the Service Provider has developed and implemented internal policies and procedures, designed to protect the confidentiality of the Customer’s Personal Information, the Customer acknowledges that:
18.104.22.168. the Service Provider cannot be held responsible for the privacy policies and practices in use by any web or internet sites that may be accessed by the Customer through use of the Service; and
22.214.171.124. Internet communications are inherently vulnerable unless they have been appropriately encrypted. Accordingly, the Service Provider accepts no responsibility or liability of any nature, whatsoever, should the Customer’s Personal Information be intercepted or lost by causes beyond its reasonable control.
31.1. Neither Party may cede, assign, delegate, encumber, transfer or otherwise dispose of any of its rights or obligations, in whole or in part, under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or unduly delayed.
31.2. Notwithstanding a foregoing, the Customer agrees that Service Provider may assign any and all of its rights and obligations hereunder to:
31.2.1. any Affiliate of the Service Provider;
31.2.2. a third party pursuant to any sale or transfer of substantially all of the assets or business of the Service Provider or its Affiliate; or
31.2.3. a third party pursuant to any financing, merger or reorganisation of the Service Provider or its Affiliate.
32. legal notices
32.1. The Parties choose as their respective domicilia citandi et executandi (“Domicilium Address”) for the service of any legal notice or legal process, their respective addresses set out below.
As stipulated in the Service Order Form
32.1.2. Service Provider:
98 Dorp Street
For the attention of: Legal Advisor
32.2. Either Party shall be entitled, from time to time by written notice to the other, to vary its Domicilium Address to any other address within the Republic of South Africa, which is not a post office box or forwarding address.
32.3. Except as otherwise expressly provided for herein, any legal notice or legal process to be served in terms of this Agreement shall be delivered by hand or transmitted by email to the Domicilium Address of the addressee.
32.4. Unless the contrary is proven, any legal notice or legal process delivered in terms of clause 32.1 shall be deemed to have been served:
32.4.1. if delivered by hand, on the next Business Day; or
32.4.2. if sent by email and the message is not returned to sender, the next Business Day after transmission thereof.
32.5. Notwithstanding the provisions of clause 32.3, any notice that has been sent or transmitted and that has been actually received by the other Party, other than by the means stipulated herein, shall be deemed to have been delivered in accordance with this clause 32.
32.6. Any notice issued by the Service Provider for information purposes and which does not relate to a dispute between the Parties or constitutes a legal notice or legal process, may be sent by Short Message Service (“SMS”) to the cellular phone number specified by the Customer in the Service Order Form.
33. entire agreement
This Agreement sets out the entire agreement between the Service Provider and the Customer, superseding all prior or contemporaneous representations, agreements or understandings concerning the subject matter addressed herein.
No addition to, variation, or cancellation of this Agreement by the Customer shall be of any force or effect unless it is reduced to writing and signed by or on behalf of both of the Parties.
If any provision of this Agreement, including any limitation, is held by a court or any governmental agency or authority to be invalid, void or unenforceable, the remainder of this Agreement shall nevertheless remain legal, valid, and enforceable.
36. no waiver
Failure or delay by either Party to exercise or enforce any right or benefit conferred by the Agreement shall not be deemed to be a waiver of any such right or benefit nor shall it operate so as to bar the exercise or enforcement thereof, or of any other right or benefit, on any later occasion.
Nothing in this Agreement, and no action taken by the Parties pursuant thereto, shall constitute, or be deemed to constitute, a partnership, agency, association, joint venture or other co-operative entity between the Parties.
38. third party beneficiaries
Except as otherwise contemplated in this Agreement, nothing herein will create or confer any rights or benefits in favour of any person other than the Parties.
39. governing law and jurisdiction
39.1. This Agreement shall be governed and construed in accordance with the laws of the Republic of South Africa, and the Parties hereto irrevocably agree to the exclusive jurisdiction of the courts of the Republic of South Africa.
39.2. The Parties furthermore consent to the jurisdiction of the Magistrates’ Courts notwithstanding that the value of the claim in question exceeds the jurisdiction of such court. Such consent shall not preclude a Party from approaching any other court having the requisite jurisdiction.
SERVICE ANNEXURE: INTERNET SERVICES
THIS SERVICE ANNEXURE IS CONCLUDED IN CONJUNCTION WITH THE MASTER SERVICE TERMS AND APPLICABLE SERVICE ORDER FORM WHICH SHALL ALL BE READ AS ONE AGREEMENT.
- 1. DEFINITIONS AND INTERPRETATION
- 1.1. Capitalised terms not defined in the Service Annexure shall have the same meaning as defined in the Master Service Terms;
- 1.2. Unless inconsistent with the context, the words and phrases set out below shall mean as follows:
- 1.2.1. “Access Circuit” means a wired or wireless electronic network service provided by the Service Provider and which is installed at the Customer Site;
- 1.2.2. “Internet Service” is a Service that is layered over the Access Circuit and allows the Customer to send and receive data packets across the Internet.
- 2. SERVICE DESCRIPTION AND EXCLUSIONS
The Internet Service provides the Customer with access to the Internet for the transmission and delivery of data packets to and from other networks at the maximum rates set forth in the Service Order Form. An Internet Service does not include support of local area networks (including Customers’ Wi-Fi networks, security or any other ancillary services).
- 3. FEASABILITY STUDIES
- 3.1. The provision of an Access Circuit is subject to a feasibility study.
- 3.2. Desktop surveys are performed to conduct initial feasibility studies in order to assist with estimation of availability, lead times and costs.
- 4. INSTALLATION OF AN ACCESS CIRCUIT
- 4.1. The duration of time required to install an Access Circuit is subject to several factors that are outside the control of the Service Provider. These include, but are not limited to, obtaining approvals from municipalities, road agencies, utility providers, private landowners and landlords. Construction work may be affected by inclement weather conditions.
- 4.2. Installation times are therefore only estimates.
- 4.3. The Service Provider shall do everything reasonably and practically possible to meet installation times but shall not be held liable in any way whatsoever for any delays in the installation of an Access Circuit. Should the Customer terminate the Agreement before an Access Circuit is installed, the Customer shall be obliged to pay the Service Provider Early Termination Charges as set out in the Master Service Terms.
- 4.4. Where applicable, the Customer shall be responsible for making available, at no cost to the Service Provider, electrical power, space (including mast space), ducting and other facilities required for the purpose of housing the Service Equipment. The Customer shall ensure that the Customer’s Site is accessible at any reasonable time as may be required by the Service Provider in order to fulfil its obligations under this Agreement.
- 4.5. The Customer acknowledges that he/she/it is solely responsible for obtaining landlord approvals and consents necessary for the installation and use of the Service.
- 4.6. In the case of jointly used office buildings there is often a common entrance point for electronic communications providers. Any facilities and extra cabling necessary in such circumstances (in particular the connection between the telco entrance point / meet-me-room and Customer's Site) are not included in the provision of the Service and are the Customer's sole responsibility. Any costs associated to utilise the telco entrance / meet-me-room shall be for the Customer’s account.
- 4.7. After installation, the Service Provider supplies, configures and tests the Access Circuit.
- 4.8. If the installation is considered to be a non-standard installation by the Service Provider, the Customer shall be responsible for the costs of any facilities, extra cabling, additional trenching and other expenses that are necessary to install the Access Circuit.
- 5. THROUGHPUT RATES AND IP ACCESS
- 5.1. Access to and across the Service Provider’s IP network is at the maximum throughput rates specified in the Service Order Form.
- 5.2. Technical support should be requested only where the performance of the Access Circuit is consistently below the advertised maximum bandwidth speed.
- 5.3. Web-based speed-tests are not reliable and will not be accepted by the Service Provider as conclusive proof of non-performance or breach of the Agreement.
- 5.4. If a support call is logged with the Service Provider, it shall use industry accepted tests in a controlled test environment in order to verify the performance of the Access Circuit. The Service Provider’s tests shall be conclusive.
- 6. CUSTOMER PREMISES EQUIPMENT (“CPE”)
- 6.1. The CPE will be provisioned with a standard configuration in respect of the ordered Service.
- 6.2. The Customer must identify a suitable location for the CPE. The location must be dry, free from vibration and well ventilated. In order for the installation to be possible the distance from the termination point of the Access Circuit and a 220V energy supply to the position of the Network Coverage may not be greater than 2 (two) metres. Non-compliance with this clause may result in a degraded Service, for which the Service Provider cannot be held liable.
- 6.3. In the event of failure of any component making up the CPE, the Service Provider will repair or replace (at the Service Provider’s discretion) the affected component. Where such CPE is replaced, the Customer must return the affected CPE component to the Service Provider.
- 6.4. The Customer accepts liability for any costs incurred by the Service Provider as a result of the repair or replacement of CPE where the failure was caused by the Customer’s use, misuse or changes caused to the CPE.
- 7. SECURITY
- 7.1. The Customer acknowledges that it is solely responsible for all security measures required in respect of the Service and the Service Provider shall not be held liable for any losses arising out of any security breaches of the Customer’s Service.
- 7.2. The Service Provider shall not be liable to the Customer for any loss, of whatsoever nature, arising from malware, ransomware, phishing, vishing, or any similar malicious attack on the Customer.
- 8. RELOCATION
- 8.1. The Access Circuit is provided at the Customer’s Site in accordance with the address provided on the Service Order Form.
- 8.2. Unless specifically agreed in writing to the contrary, the Customer’s relocation will be processed as a termination of the current Service and a new Agreement for a Service at the new Customer Site.
- 8.3. To ensure minimum disruption to the Customer, the Service Provider will require at least 14 (fourteen) days’ notice of the Customer’s intention to relocate the Services, together with full details of the new Customer Site.
- 8.4. All requests received for the Access Circuit at the new premises shall be subject to a feasibility study as set out in clause 3.
- 8.5. If, after a feasibility study has been conducted, it is found that:
- 8.5.1 it is not feasible to provide the Services at the alternative Customer Site; or
- 8.5.2. a new Access Circuit will not be installed by the time the Customer moves to the new Customer Site;
then the Service Provider shall suggest an alternative Service to be provided to the Customer as a replacement service and, notwithstanding the provisions of clause 8.2, the Customer shall be obliged to procure from the Service Provider such replacement service as best meets the Customer’s requirements.
- 8.6 In the event that it is not possible to provide the Customer with an alternative Access Circuit or an alternative Service at the new premises, it shall be regarded as an early termination and dealt with in accordance with the termination provisions set out in the Master Service Terms. Payment of an Early Termination Charge shall be levied at the discretion of the Service Provider.
- 9. CHARGES
- 9.1. Upon installation, the once-off installation fee for the router delivery costs, administration fee as well as a pro-rated portion of the monthly Charges shall be due and payable within 5 (five) Business Days. Should payment not be received on the due date, the Service Provider shall be entitled to suspend the Service and a re- activation fee shall be applicable.
- 9.2. Monthly recurring Charges are debited monthly in advance from the Customer’s nominated bank account on either the 1st, 16th or 26th day of each Calendar Month, as specified on the Service Order Form. Customers must request in writing to pay by means of electronic funds transfer, approval thereof however remains at the discretion of the Service Provider. In the event that the Service Provider approves such payment method, the Customer must ensure that payment is made on or before the 1st day of each Calendar month.
- 9.3. The Service Provider shall be entitled to amend its debit order days, as specified in clause 9.2, on 30 (thirty) days’ written notice to the Customer.
- 9.4. The Service Provider shall be entitled to increase the Charges on 30 (thirty) days’ written notice to the Customer.
- 10. FIBRE TO THE HOME (“FTTH”) AND FIBRE TO THE BUSINESS (“FTTB”) SERVICES TERMS AND CONDITIONS
- 10.1 A free-to-use router, of the Service Provider’s specifications, shall be provided to all FTTH and FTTB Customers subject to the provisions of clause 20 of the Master Service Terms.
- 10.2. The Customer acknowledges that if it is moving from another service provider to the Service Provider it is the Customer’s sole responsibility to ensure that it has properly cancelled the services with the erstwhile service provider and that such cancellation has been processed and accepted by the erstwhile service provider. The Service Provider shall not be responsible for co-ordinating start and end dates of contracts with any other service provider. The risk in an overlap of service charges lies entirely with the Customer.
- 10.3. The Customer acknowledges that if he/she/it seeks to terminate his/her/its FTTB Service he/she/it is required to give the Service Provider at least 3 (three) Calendar Months’ written notice to that effect.
- 10.4. The Customer acknowledges that if he/she/it terminates a Service before the expiry of the Minimum Service Term he/she/it may be liable for Early Termination Charges as set out in clause 20 of the Master Service Terms.
- 11. WIRELESS SERVICES TERMS AND CONDITIONS
- 11.1. The standard installation fee includes a maximum cable run of 30 (thirty) metres and a standard bracket. A cable run in excess of 30 (thirty) metres and any additional non-standard equipment shall be subject to additional Charges.
- 11.2. The Installation shall include the provision of a router.
- 11.3. If an Access Circuit with the capacity equal to or exceeding 20Mbps is provisioned on a point-to-multipoint network architecture it may in unique instances be unstable when required to handle the required throughput. In such instances, the only viable technical solution is to change the network architecture of the Access Circuit to a dedicated point-to-point circuit. Point-to- point Access Circuits require additional network infrastructure and additional costs comprising of:
- 11.3.1 an equipment rental on a Service Provider tower;
- 11.3.2. high site rental on a Service Provider tower;
- 11.3.3. an additional once-off installation fee (subject to the installation taking place on a Business Day) at the respective Service Provider tower, based on the Minimum Service Term applicable, as specified in the relevant Service Order Form.
- 11.3.4. The Customer will be quoted for the additional charges at the prevailing rates.
- End of Service Annexure – Internet Access -
SERVICE ANNEXURE: VOIP SERVICES
THIS SERVICE ANNEXURE IS CONCLUDED IN CONJUNCTION WITH THE MASTER SERVICE TERMS AND APPLICABLE SERVICE ORDER FORM WHICH SHALL ALL BE READ AS ONE AGREEMENT.
- 1. DEFINITIONS AND INTERPRETATION
- 1.1Capitalised terms not defined in the Service Annexure shall have the same meaning as defined in the Master Service Terms;
- 1.2 Unless inconsistent with the context, the words and phrases set out below shall mean as follows:
- 1.2.1“ANI” means automatic number identification;
- 1.2.2 “IVR” or “Inter Active Voice Response” means the technology utilised to direct incoming caller(s) to an answering system for screening purposes prior to being referred to a human operator;
- 1.2.3 “Number Porting” means the process whereby an existing phone number is transferred from one service provider to another upon request by the Customer;
- 1.2.4“PBX” means private branch exchange;
- 1.2.5 “SIP Trunk” means the virtual version of an analogue phone line that creates a VoIP session between any two SIP enabled end-points (which can include PBX) thereby enabling a Customer to make local, long distance, and international calls via the Internet; and
- 1.2.6 “VoIP” means the technology that converts analogue voice signals into IP based digital coding, thereby permitting the Customer to make a telephone call via the Internet from any IP-enabled device, including VoIP phones, tablets and computers.
- 2. SERVICE DESCRIPTION AND EXCLUSIONS
- 2.1 VoIP enables the Customer to:
- 2.1.1. make local, long distance, and international calls via the Internet; and
- 2.1.2 keep a record of such calls for a period determined in the Service Order Form, unless otherwise agreed upon in writing.
- 2.2. ANI is a standard feature in all of the Service Provider’s VoIP Service(s).
- 2.3. The Customer is required to select the pre-determined credit limit approved by the Service Provider in the Service Order Form applicable to the VoIP Service(s). This credit limit will determine the extent to which the VoIP Service(s) selected will be made available to the Customer.
- 2.1 VoIP enables the Customer to:
- 3. CUSTOMER PREMISES EQUIPMENT (“CPE”)
- 3.1. The CPE will be provisioned with a standard configuration in order to enable for the Customer to make and receive calls via the Internet.
- 3.2. The Customer must identify a suitable location for the CPE. The location must be dry, free from vibration and well ventilated. In order for the installation to be rendered possible, the distance from a 220V energy supply to the position where the CPE will be installed may not be greater than 2 (two) metres.
- 3.3. In the event of failure of any component making up the CPE, the Service Provider will repair or replace (at the Service Provider’s discretion) the affected component. Where such CPE is replaced, the Customer must return the affected CPE component to the Service Provider without delay.
- 3.4. The Customer accepts liability for any costs incurred by the Service Provider as a result of the repair or replacement of CPE where the failure was caused by the Customer’s use, misuse or changes caused to the configuration of the CPE.
- 4. RELOCATION
- 4.1. The CPE is provided at the Customer’s Site in accordance with the address provided on the Service Order Form.
- 4.2. Unless specifically agreed in writing to the contrary, the Customer’s relocation will be processed as a termination of the VoIP Service(s) and a new Agreement for a such Service(s) at the new Customer Site.
- 4.3. To ensure minimum disruption to the Customer, the Service Provider will require at least 14 (fourteen) days’ notice of the Customer’s intention to relocate the VoIP Service(s), together with full details of the new Customer Site.
- 5. CHARGES
- 5.1. Upon installation, the once-off installation fee, VoIP telephone costs, administration fee as well as a pro-rated portion of the monthly Charges shall be due and payable within 5 (five) Business Days. Should payment not be received on the due date, the Service Provider shall be entitled to suspend the VoIP Service(s) and a re-activation fee shall be applicable.
- 5.2. Monthly recurring Charges are debited monthly in advance from the Customer’s nominated bank account on either the 1st, 16th or 26th day of each Calendar Month, as specified on the Service Order Form. Customers who elect to pay by electronic funds transfer must do so on or before the 1st day of each Calendar month.
- 5.3. The Service Provider shall be entitled to amend its deibt order days, as specified in clause 5.2, on 30 (thirty) days’ written notice to the Customer.
- 5.4 The Service Provider shall be entitled to increase the Charges on 30 (thirty) days’ written notice to the Customer.
- 6. NUMBER PORTING
- 6.1. The Customer acknowledges that if it is moving from another service provider to the Service Provider it is the Customer’s sole responsibility to ensure that it has properly cancelled the VoIP service(s) with the erstwhile service provider and that such cancellation has been processed and accepted by the erstwhile service provider. The Service Provider shall not be responsible for co-ordinating start and end dates of contracts with any other service provider. The risk in an overlap of service charges lies entirely with the Customer.
- 6.2. In addition to the above, the Customer further acknowledges that Number Porting could take between 7 (seven) and 14 (fourteen) days to complete and that any delay experienced in this regard, the costs thereof (if any) shall be for the Customer’s account.
- 6.3. The Customer acknowledges that if he/she/it terminates a VoIP Service before the expiry of the Minimum Service Term he/she/it may be liable for Early Termination Charges, as stipulated in clause 20 of the Master Service Terms.