These Master Service Terms between the Service Provider and the Customer are intended to facilitate the conclusion of individual contracts in the form of Service Order Forms between the Service Provider and the Customer. Each Service Order Form delivered and accepted in accordance with this Agreement forms an individual contract which incorporates the terms of these Master Services Terms and establishes the terms and conditions under which the Service Provider shall provide the Services to the Customer.
The Customer expressly acknowledges that any amendments effected by him/her/it to these Master Service Terms or any Service Order Form shall not, under any circumstances be accepted, nor shall such amended Master Service Terms or applicable Service Order Form establish any contractual relationship between the Parties unless such amendment is brought to the attention of the Service Provider and a duly authorised senior representative of the Service Provider signifies his or her acknowledgment and acceptance of the amendment by initialling alongside the amendment so effected by the Customer.
DEFINITIONS AND INTERPRETATION
- Unless the context indicates otherwise, the following expressions shall have the meanings given to them hereunder and cognate expressions shall have corresponding meanings:
- Agreement means these Master Services Terms and any Service Order Form(s) entered into between the Service Provider and the Customer;
- Business Day means any day which is not a Saturday, Sunday or public holiday in the Republic of South Africa;
- Charges means all applicable Call Charges, Usage Charges, Installation Charges, Start Up Charges, Rental Charges, Monthly Fees and any other charges or fees payable by the Customer to the Service Provider in respect of a Service, as set out or referred to in a Service Order Form and revised from time to time in accordance with clause 3.2 and/or clause 3.10;
- Call Charges shall mean the charges for circuit or packet switched telecommunications services payable in accordance with clause 0;
- Installation Charge or Start Up Charge shall mean a non-recurring charge for installation of a Service (including installation of Service Equipment) payable in accordance with clause 0;
- Rental Charge or Monthly Fee shall mean monthly recurring charges for a Service payable in accordance with clause 0;
- Usage Charges shall mean the usage-based charges for Internet Services payable in accordance with clause 0;
- Confidential Information means all information (in whatever format) which: (i) relates to the Agreement; (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks, customers, products, developments, trade secrets, know-how and personnel of either Party (including, in the case of the Customer, Customer Data) and which may reasonably be regarded as confidential information of the disclosing Party;
- Customer Data shall include, but not be limited to, 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), data containing personal and/or private information of the Customer, its employees or authorised users of the Services, and other data provided to or obtained by the Service Provider and their respective agents in connection with the provision of Services. Regulated Customer Data is that Customer Data of which the use, processing or transfer is regulated by law or regulation as “personal data” where the Service Provider or their respective agents come into possession of such Customer Data;
- Customer Site means a site or sites specified in a Service Order Form at which a Service is to be provided;
- Emergency Works means works, the execution of which at the time it is proposed, required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided by the Network or the network generated by a third party; (iii) substantial loss to the Service Provider or any third party; and such other works as in the circumstances is reasonable to execute along therewith;
- Force Majeure Event means any cause beyond a Party’s reasonable control affecting the performance of its obligations, including but not limited to, fire, flood, lightning, explosion, accident, war, acts of terrorism, power outages, strike, embargo, governmental requirement, civil or military authority, Act of God, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of other providers of telecommunications services;
- Internet shall mean the usage-based charges for Internet Services payable in accordance with clause 0;
- Modify/Modification means to modify, alter, repair, attempt to repair, or in any way tamper with the Service Equipment;
- Network means the Telecommunications Network and the IP Network;
- 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
- Telecommunications Network means the telecommunication system(s) that are owned, operated or used by the Service Provider from time to time.
- Party means the Service Provider or the Customer (as the context requires), and “Parties” shall be construed accordingly;
- Service means the specific Telecommunications Service or Internet Service provided by the Service Provider to the Customer, as may be further described in the relevant Service Order Form;
- Internet Service means a service providing access to the Internet across the IP Network together with any related Service Equipment or support services, and as more particularly described in the relevant Service Order Form;
- Telecommunications Service means a service providing telephony services utilising the IP Network and/or the Telecommunications Network;
- Service Activation Date means, in relation to a Service, the date the Service becomes available for use by the Customer;
- 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 the Customer;
- Service Levels means a level of service, standard for the performance of the services and against which the Service Provider’s performance of the Services shall be measured;
- Service Order Form means the request for a Service entered into between the Parties;
- Service Term means the total period for which the Service is provided to the Customer. The “Initial Service Term” means the service term commencing on the Activation Date and enduring for a period of either 1 (one), 12 (twelve) or 24 (twenty-four) months, as specified in the respective Service Order Form; and
- Signature Date means the date of signature of these Master Services Terms by the Customer.
- Reference to broadband terminology such as “contended” and “uncapped” have the meaning ascribed to such terms in the ISPA Guidelines and Recommendations on Broadband Technology.
- Clause headings are for convenience only and shall not be used in the interpretation of this Agreement.
- A natural person includes a juristic person and vice versa.
- 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.
- The rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement shall not apply.
- No provision of this Agreement is intended to contravene the applicable provisions of the Consumer Protection Act of 2008, and all provisions of this Agreement, to the extent that they are governed by the Consumer Protection Act of 2008, must be treated as qualified, to the extent necessary, to ensure that the applicable provisions of the Consumer Protection Act, 2008 are complied with.
SERVICES, PRODUCTS AND STANDARDS
- The Customer may request a Service by completing and submitting a Service Order Form to the Service Provider. The Service Order Form may be updated by the Service Provider from time to time at the Service Provider’s discretion. The terms of the Service Order Form must be read in conjunction with the terms and conditions of these Master Services Terms. The Service Provider is under no obligation to accept a Service Order Form received from a Customer.
- A Service Order Form shall be binding on both Parties only after it is accepted and signed by a duly authorised person in the employ of the Service Provider, and:
- on receipt of a Service Order Form the Service Provider may carry out a credit check against the Customer. The Customer hereby expressly consents to any such credit check being conducted;
- each Service Order Form issued and accepted in accordance with the terms of these Master Services Terms shall create an individual contractual relationship between the Service Provider and the Customer. That contractual relationship shall be governed by these Master Services Terms, together with the terms and conditions contained in the relevant Service Order Form;
- in addition to the terms and conditions of this Agreement the Services shall be subject to all mandatory legal requirements applicable in the jurisdiction where the Service is to be provided, including but not limited, to the regulatory and data protection requirements; and
- in the event of any conflict between the terms of the Service Order Form and the terms of these Master Services Terms, the terms of the Service Order Form shall take precedence.
- The Customer acknowledges that it is responsible for providing the Service Provider with electricity, space, including mast space (if applicable), ducting (if applicable) and other facilities deemed suitable by the Service Provider for the intended purpose, at no cost to the Service Provider, for the purposes of installing and housing the Equipment required for the provision of the Services to the Customer.
- The Customer will grant the Service Provider reasonable access to the Customer Site, during normal business hours, for the purpose of installation, inspection, maintenance, service, repair, replacement, relocation or removal of Equipment and for the purpose of performing any acts contemplated by this Agreement.
- The Service Provider shall provide the following standard Service Equipment, if required, for a standard installation:
- in respect of a wireless Service, the following:
- 1 (one) bracket;
- (four) sleeve anchors;
- 30 (thirty) metres of cable;
- 1 (one) wireless radio;
- 1 (one) access point with WiFi capabilities;
- 1 (one) 25 dBi dish/similar;
- 3 (hours) of labour;
- in respect of a fibre Service, the following:
- 1 (one) pigtail SM SC at 1 (one) metre length;
- a 4.2 mm drop cable;
- a 4.2 mm dead-end;
- 1 (one) eye bolt;
- 1 (one) access point with WiFi capabilities;
- a FO1 indoor enclosure;
- a mid-coupler SM SC simplex;
- a 1 (one) metre SM SC-SC lead;
- 1 (one) Optical Network Unit;
- 1 (one) Local Area Network fly-head.
- Without releasing it from any of its obligations, the Service Provider shall be entitled at any time, and without notice, to use subcontractors to perform some or all of its obligations under this Agreement.
- The Service Provider agrees to provide the Service Equipment and Services subject to the terms and conditions of this Agreement.
- The Service Provider reserves the right to control, direct and establish technical procedures for the use of the Service Equipment and Services and the Customer agrees to follow the reasonable instructions and procedures of the Service Provider with respect to the use thereof.
- The Service is a best-effort service, which means that the Service Provider does not provide any guarantees that data is delivered or that that the Customer will be provided a guaranteed quality of service level or a certain priority. All customers obtain best-effort service, meaning that they obtain unspecified variable bit rate and delivery time, depending on the current traffic load, WiFi coverage, atmospheric conditions and a range of factors. Accordingly, advertised and contracted bandwidth speeds are maximum speeds that are not guaranteed.
- Technical support should be requested only where the performance of the Service is consistently at least 25% (twenty-five percent) below the advertised maximum bandwidth speed. Web-based speed-tests are not reliable and will not be accepted by the Service Provider as conclusive proof of non-performance by the Service Provider. If a support call is logged with the Service Provider, the Service Provider shall use industry accepted tests in a controlled test environment to verify the performance of the Service.
- The Service Provider shall use commercially reasonable endeavours to remedy any failure to meet the Service Levels as prescribed in the End User Service and Subscriber Service Charter Regulations, 2016, provided that support for technical and billing issues must be logged with the Service Provider through its advertised channels.
- WiFi coverage is dependent on building structure and is not guaranteed to propagate to the entire structure. The Customer may add additional access points to extend the coverage area at his/her/its own cost.
- The terms and conditions of this Agreement and the Charges for a Service are agreed upon subject to the express condition that the Customer shall not resell, charge, transfer or otherwise dispose of the Service (or any part thereof) to any third party.
- The Service Provider reserves the right, from time to time, to change the configuration of the Network or the Service Equipment, or to change any applicable access code for receipt of a Service, provided always that such change does not materially affect the relevant Service. The Service Provider shall use reasonable endeavours to give the Customer a minimum of 1 (one) weeks’ notice of any such changes to access codes, where possible, notwithstanding that an emergency, such as a cyber-attack or breach of security may necessitate no notice be given. This clause does not include any changes to service attributes made by service providers from whom the Service Provider procures electronic communications network or other services.
CHARGES AND PAYMENT TERMS
- The Customer shall pay the Charges in accordance with this clause 0.
- The Service Provider shall be entitled to amend the Charges on 30 (thirty) days’ notice.
- Call Charges and/or Usage Charges shall accrue from the Service Activation Date and shall be invoiced by the Service Provider monthly in arrears.
- Installation Charges and/or Start Up Charges shall accrue immediately on the Service Provider’s acceptance of a Service Order Form and shall be payable on presentation of an invoice to the Customer.
- Any non-standard Service Equipment shall be for the cost of the Customer. The Customer will be advised of any non-standard requirements prior to installation.
- The Customer acknowledges that all invoices arising out of this Agreement will be emailed to the email address specified by the Customer on the respective Service Order Form.
- Rental Charges and/or Monthly Fees shall accrue from the Service Activation Date and may be invoiced by the Service Provider monthly in advance. A Service provided for part of a month will be charged on a pro-rata basis.
- Payment of any Charges shall be due on issue of an invoice and shall be paid by the Customer within 7 (seven) days of the date of the invoice.
- Interest shall accrue on any overdue invoice from the due date until payment (whether before or after judgement) at the maximum rate permissible under the provisions of the National Credit Act, 34 of 2005 in relation to incidental credit.
- All Charges or other sums which may, from time to time, be due by the Customer are stated inclusive of value added tax unless clearly indicated otherwise.
- The Customer agrees to comply with any Initial Service Term commitment and any failure of the Customer to do so shall, in addition to constituting a material breach of this Agreement, entitle the Service Provider to:
- levy an early termination charge against the Customer, calculated from the date of acceptance of a Service Order Form by the Service Provider to the expiry of the Initial Service Term (which early termination charge the Customer hereby acknowledges to be reasonable and a genuine pre-estimate of the Service Provider’s loss) equal to: (i) 100% (one hundred percent) of the remaining Rental Charges or Monthly Fees (not including any part relating to payment for local access circuits) payable by the Customer for the unexpired portion of the Initial Service Term;
- levy any termination charges or other costs or expenses incurred by the Service Provider for the cancellation of the local access circuits or related services or equipment provided to the Service Provider in connection with the Service;
- recover any promotional discount given to the Customer in respect of the cancelled Service and levy a charge therefor; and
- demand payment of the full balance owing under any installation payment plan in respect of the cancelled Service.
Prior to the provision of a Service, the Service Provider shall conduct such tests as it considers to be appropriate to determine that all necessary work has been done to provide the Service to the Customer and upon completion of the tests shall advise the Customer that the Service is ready for use.
- In performing its obligations under this Agreement, the Service Provider shall at all times exercise the reasonable skill and care of a competent provider of Internet related services.
- The Service Provider shall use reasonable endeavours to ensure that each Service will conform to any service descriptions and/or service levels as set out, or referred to, in the applicable Service Order Form.
- Except as expressly set out in this Agreement, all warranties, representations or agreements, with respect to the provision of a Service or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statute or otherwise, are excluded to the extent permitted by law.
- The Service Provider may, at its sole discretion and without prejudice to any right which it might have to terminate a Service and/or this Agreement, elect to immediately suspend the provision of a Service (or part of a Service) in any of the following circumstances:
- the Service Provider has reasonable grounds to consider it is entitled to terminate the Service and/or this Agreement in accordance with clause 10 below;
- 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 regulatory authority;
- the Service Provider needs to carry out Emergency Works to the Network or Service Equipment;
- the Service Provider has reasonable grounds to consider that the Service is being used fraudulently, illegally or in violation of clause 11.5;
- the Service Provider has reasonable grounds to consider that the Customer will not, or is unable to, make any payment which is due, or may fall due, to the Service Provider under this Agreement; or
- the Service Provider has reasonable grounds to consider that the Customer is, or has been involved in, or connected with, criminal activity or other activity which is, or may be, detrimental to the Service Provider.
- If the Service Provider exercises its right to suspend the Service (or part of the Service) under clauses 6.1.2 or 6.1.3 it shall, whenever reasonably practicable, give prior notice of the suspension, the reason therefor and the expected duration of the suspension, to the Customer. The Service Provider shall in such circumstances use all reasonable endeavours to resume the Service as soon as is practically possible.
- If the Service (or part of 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 the Service.
- The Service Provider shall not be liable for any loss, damage or inconvenience suffered by the Customer, as a result of any suspension made under clause 6.1, except to the extent that the suspension is a result of the Service Provider carrying out Emergency Works which were necessitated solely and directly as a result of the negligence of the Service Provider.
RISK, TITLE AND OWNERSHIP
- Unless the Service Equipment has been purchased by the Customer, the Customer hereby acknowledges that he/she/it has no right, title or interest in the Service Equipment, and that title to the Service Equipment shall at all times remain with the Service Provider.
- Risk of loss or damage to the Service Equipment transfers to the Customer once the Equipment has been properly installed at the Customer Site.
- The Customer acknowledges that he/she/it may not Modify or move the Equipment without the express written consent of the Service Provider.
- In the event of the Service Provider giving its express written consent to the Customer to perform a Modification of the Equipment, the Service Provider shall be completely released from any liability or obligation (including any warranty or indemnity obligation) for any costs or damages incurred by the Service Provider (including damage to the Service Provider’s Network) caused by such Modification.
- Further to clauses 8.1 and 8.2, it is recorded that the Customer shall be liable for any damage caused to the Service Provider’s Network arising out of any such Modification, whether or not prior express written consent has been obtained from the Service Provider.
SERVICE PROVIDER’S WARRANTIES
- The Service Provider warrants the it has the necessary consents, licences or agreements required for the provision of the Services.
- The Service Provider warrants that all Service Equipment and Services provided will be in good working order, confirm with Service specifications and be certified ready for use by the Service Provider on the day of installation.
- After the Service Activation Date, the Service Provider will make such necessary adjustment and repairs to maintain the Service Equipment in working order to ensure the provision of the Services.
- The express warranties contained in these Master Service Terms are in lieu of all other warranties, representations and guarantees of any kind by the Service Provider. Except as expressly set forth herein, all products, services and other materials (if any) are furnished by the Service Provider and accepted by the Customer “as is”. All other warranties, whether statutory, express or implied, are specifically excluded and disclaimed by the Service Provider.
- The Service Provider does not warrant that the Products, Services or any other materials provided under this Agreement will meet the Customer’s requirements or that they, or their access or use, will be uninterrupted, error free, or completely secure, except as expressly provided in this clause.
- In all situations involving performance or non-performance of Service Equipment and Services provided under this Agreement, the Customer’s sole remedy is adjustment or repair of the Service Equipment and/or Services.
SERVICE PROVIDER’S WARRANTIES
- The Service shall commence on the Service Activation Date and shall endure for the Initial Service Term specified in the Service Order Form. On expiry of the Initial Service Term the Service shall continue until terminated by either Party on a least 1 (one) calendar month’s written notice to the other.
- During the Initial Service Term, the Customer shall not be entitled to downgrade the Customer’s Services. A downgrade request during the Initial Service Term will be treated as a cancellation subject to an early termination charge and the downgraded services shall be dealt with as a new service being provisioned.
- After the Service Activation Date, the Service Provider will make such necessary adjustment and repairs to maintain the Service Equipment in working order to ensure the provision of the Services.
- If, after the expiry of the Initial Service Term, the Customer elects to cancel the Service he/she/it shall not be entitled to downgrade the cancelled Service during the cancellation notice period referred to in clause 10.1.
- During the Initial Service Term either Party may terminate a Service:
- immediately by notice if, in relation to that Service, the other Party has committed a material breach which is incapable of remedy;
- immediately by notice if, in relation to that Service, the other Party has committed a material breach capable of remedy, but which it fails to remedy within 10 (ten) Business Days of having been notified of such breach; or
- immediately by notice if, in relation to that Service, a Force Majeure Event subsists for a continuous period exceeding 3 (three) months.
- The Service Provider may terminate the Agreement (or a specific Service) immediately by way of notice if a suspension of a Service, pursuant to clauses 6.1.4, 6.1.5 or 6.1.6, has continued for a period of at least 2 (two) consecutive months.
- If the Service Provider has reasonable grounds to consider that there has been a violation of clause 11.5, the Service Provider may notify the Customer and require him/her/it to immediately remedy the violation in the event of an incident involving a violation of public law, regulation or where such incident poses an imminent threat to the IP Network; or in all other cases, within 48 (forty-eight) hours. If the Customer fails to notify the Service Provider within 24 (twenty-four) hours that the violation has been remedied, or if the Service Provider reasonably determines that the violation is continuing or is likely to occur again, the Service Provider may terminate this Agreement (or relevant Service) immediately by written notice to the Customer.
- Notwithstanding the provisions of clauses 10.4 and 10.5, the Service Provider may terminate the Service on 5 (five) Business Days’ notice if the Customer fails to make any payment, when due, in accordance with the terms of these Master Service Terms.
- Without prejudice to accrued rights or obligations, upon termination of a Service all accrued Charges not yet invoiced shall become due and shall be paid by the Customer immediately on presentation of an invoice.
- In the event of termination of a Service for any reason whatsoever, the Customer acknowledges that, in addition to any early termination charges that may be applicable (in the event of early termination of a Service), he/she/it shall be liable for the replacement costs of any Service Equipment not returned to the Service Provider once the cancellation notice period has run its course and termination of the Service has been effected. When providing the written notice to the Service Provider of the intention to terminate the Service, the Customer must arrange for the delivery or collection of any Service Equipment. Should the Customer fail to make delivery of the Service Equipment to the Service Provider with 7 (seven) days of the termination of the respective Service, the Service Provider shall be entitled to levy a charge against the Customer which charge shall be equal to the cost of replacing the Service Equipment.
- Termination of a Service shall not affect clauses of these Master Service Terms which necessarily, or by their context, require survival.
- The Customer shall ensure that the Service Provider, or its authorised representative, is granted access to each Customer Site. The Customer shall provide the Service Provider with any necessary licences, waivers or consents which may be required in order to enable it to perform its obligations or to exercise its rights under this Agreement. The Customer shall advise the Service Provider in writing of all health and safety rules and regulations and any other reasonable security requirements applicable to the Customer Site. The Service Provider shall use all reasonable endeavours to observe and ensure that its employees and/or authorised representatives observe such regulations and requirements whilst at the Customer Site.
- The Customer shall 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.
- The Customer warrants and undertakes that it shall:
- 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, and/or any software licence that may be provided with the Service Equipment;
- not move, modify, relocate, or in any way interfere with the Service Equipment (or any words or labels on the Service Equipment) or the Network;
- not cause the Service Equipment to be repaired or serviced except by an authorised representative of the Service Provider;
- insure and keep insured all Service Equipment installed at each Customer Site against theft and damage;
- not create or allow any charges, liens, pledges or other encumbrances to be created over the Service Equipment. Ownership title in relation to the Service Equipment shall at all times belong, and remain, with the Service Provider, a Service Provider affiliate or their subcontractors;
- permit the Service Provider to inspect, test, maintain and replace the Service Equipment at all reasonable times; and
- upon termination of a Service, allow the Service Provider access to each Customer Site to remove the Service Equipment. Should any construction or alteration to the Customer Site have occurred to facilitate any Service, the Service Provider is not obliged to restore the Customer Site to the same physical state it was in prior to such construction or alteration.
- The Customer shall be liable for all damage sustained by the Service Equipment or the Network which is caused by (i) an act or omission of the Customer; or (ii) the Customer’s breach of the terms of this Agreement; or (iii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees, or suppliers. The Service Provider shall not be liable for any costs incurred by Customer arising out of any malfunction or failure of any such equipment or facility.
- The Customer warrants and undertakes that when using the Services, it shall comply with:
- any relevant legislative and regulatory provisions and shall not use the Services for any illegal or immoral purpose;
- the then current version of the Service Provider Acceptable Use Policy (the “Policy”). The Policy shall be available on the Service Provider website. The Customer undertakes, prior to commencing its use of the Service(s), to read and understand the Policy; and
- the Service Provider is entitled to amend the Policy from time to time and shall notify the Customer of the availability of any such amended Policy on the Service Provider’s website.
- The Customer indemnifies the Service Provider and its affiliates against any and all losses, damages, costs, expenses or third party claims arising from any breach committed by the Customer of this clause 11.
- In addition to its obligations under clause 11 above, the Customer must give the Service Provider at least 1 (one) calendar month notice of its intention to move premises, together with full details of the new Customer Site
- Any request to move the Service to a new Customer Site shall be subject to a feasibility study. If after such feasibility study it is evident that it is:
- feasible to deliver the same Service at the new Customer Site, then the Customer shall be liable to the Service Provider for payment of a relocation fee equal to the then current prices for standard or non-standard installations, whichever is applicable, in addition to any other costs incurred by the Service Provider as a result of the relocation to a new Customer Site; or
- not feasible to deliver the same Service at the new Customer Site, then the Service Provider shall suggest an alternative Service to be provided to the Customer as a replacement Service and the Customer shall be obliged to procure from the Service Provider such replacement Service as best meets the Customer’s requirements.
- In the event that is not possible to provide the Customer with the same or an alternative Service at the new Customer Site, the Service shall be considered cancelled and the Service Provider shall be entitled to levy an early termination charge for the respective Service.
- In the event of clause 12.2.1, the Customer acknowledges that he/she/it shall also be liable for:
- a call-out fee/s should the Service Provider be required to attend on the old or the new Customer Site more than once in order to relocate the Service Equipment; and
- a Service Equipment replacement fee should the Service Provider, after 2 (two) attempts be unable to access the old Customer Site to relocate the Equipment to the new Customer Site.
UPGRADING / DOWNGRADING OF SERVICES
- The Customer may request an upgrade of his/her/its Service at any stage during the month subject to the following:
- the Customer must complete and submit a new Service Order Form to the Service Provider;
- the Customer shall be charged a pro-rated from the date the upgraded Service is activated; and
- in respect of a wireless Service, a feasibility study will be performed to establish whether or not the upgraded Service may be provided.
- After the Initial Service Term, the Customer may request a downgrade of his/her/its Service provided that:
- any such request must be submitted to the Service Provider on a Service Order Form after the expiration of the Initial Service Term;
- should the request be made before the 10th day of a calendar month, the downgrade shall only be effective at the end of the respective month;
- should the request be made after the 10th day of the calendar month, the downgrade shall only be effective at the end of the month following the month in which the request was made; and
- no request for a downgrade of a Service will be accepted under any circumstances when such request is made during the notice period where the Customer has already given notice of cancellation in accordance with clause 10 above.
- 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, provided that such liability for damages shall be limited to the actual payments made by Customer to Service Provider in the previous 12 (twelve) months.
- Neither Party shall be liable to the other for any losses which constitute indirect, special or consequential damages.
- The Customer acknowledges that the Service Provider is unable to exercise editorial or other control over any content placed on or accessible through the Customer’s use of the Services and 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 Services.
- 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 negligence.
Notwithstanding anything herein to the contrary, neither Party shall be liable to the other for any delay or failure in performance of any part of this Agreement (other than for payment obligations set out in clause 4) to the extent such delay or failure is attributable to a Force Majeure Event. Subject to clauses 10.4 and 10.5, any such delay or failure shall suspend the Agreement until the Force Majeure Event ceases and the affected Initial Service Term(s) shall be extended by the length of the suspension.
INTELLECTUAL PROPERTY, IP ADDRESSES AND DOMAIN NAMES
- The Customer warrants that any domain name registered or administered on its behalf will not contravene the trademark or other intellectual property rights of any third party and that it shall comply with the rules and procedures of the applicable domain name authorities, registries and registrars. The Customer shall indemnify the Service Provider in respect of any and all losses, damages, costs and expenses arising from or in connection with breach of this clause 16.1. The Customer irrevocably waives any claims against the Service Provider which may arise from the acts or omissions of domain name registries, registrars or other authorities.
- Any Internet Protocol (IP) addresses assigned to the Customer by the Service Provider, in connection with an Internet Service, shall be used solely in connection with the Internet Service. If such Internet Service is discontinued for any reason (including termination of the Agreement of the Internet Service), the Customer’s right to use the IP addresses shall immediately cease and the IP addresses shall be returned immediately to Service Provider.
- If the Customer does not move the domain name(s) registered by the Service Provider to another Internet provider within one month after termination of the Agreement and/or the Internet Service, the Service Provider reserves the right to terminate the domain name(s) registered by the Service Provider for the Customer with the applicable domain name authorities, registries and registrars.
- Subject to clause 17.2, each Party hereunder, shall:
- only use Confidential Information for the purposes of the Agreement;
- only disclose Confidential Information to a third party with the prior written consent of the other Party (except that either Party may disclose Confidential Information to its employees, agents or contractors, including professional advisors or auditors); and
- ensure that any third party, to whom Confidential Information is disclosed, executes a confidentiality undertaking substantially similar to the terms of this clause 17.
- The provisions of clause 17.1 shall not apply to any Confidential Information which: (i) is in or comes into the public domain other than by breach of this clause 17; or (ii) is or has been independently generated by the recipient Party; or (iii) is properly disclosed pursuant to a separate written consent or a statutory obligation, the order of a court of competent jurisdiction or the requirement of a competent regulatory body.
ACCEPTABLE USE AND FAIR USE POLICIES
By purchasing a Service, the Customer agreed to abide by the Service Provider’s Acceptable Use Policy and Fair Use Policy, as amended from time to time. The Service Provider’s AUP and FUP is available at https://www.herotel.com/.
Neither Party may assign, charge, transfer or otherwise dispose of these Master Services Terms, any Service Order Form, or any rights or obligations therein in whole or in part, without the written consent of the other Party (which consent shall not be unreasonably withheld or unduly delayed), except that the Service Provider may assign any and all of its rights and obligations hereunder: (i) to any Service Provider affiliate; (ii) to a third party pursuant to any sale or transfer of substantially all the assets or business of the Service Provider or a Service Provider affiliate; or (iii) to a third party pursuant to any financing, merger, or reorganisation of the Service Provider or a Service Provider affiliate.
- Severability. 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.
- No Waiver. Failure or delay by either Party to exercise or enforce any right or benefit conferred by the Agreement, including the Service Provider’s right to deliver invoices in accordance with clause 4, shall not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof, or of any other right or benefit, on any later occasion.
- Relationship. Nothing in this Agreement, and no action taken by the Parties pursuant to this Agreement, shall constitute, or be deemed to constitute between the Parties, a partnership, agency, association, joint venture or other co-operative entity.
- Third Party Beneficiaries. Except as otherwise contemplated in this Agreement, nothing herein will create or confer any rights or other benefits in favour of any person other than the Parties.
- Variation. This Agreement (or any part thereof) may not be amended by the Customer. Any modification to the Agreement (or part thereof) shall be modified only with the prior written consent of the Service Provider.
- Except as otherwise expressly provided for herein, any notice required or authorised to be given under the Agreement shall be delivered by hand, prepaid registered post or by email to the address stated on the first page of these Master Services Terms and shall be deemed to have been served (unless the contrary is proven):
- if delivered by hand, on the next Business Day;
- if sent by registered post, 10 (ten) Business Days after such posting; and
- if sent by email and the message is not returned, the next Business Day.
- Notwithstanding the provisions of this clause, any legal notice that has been sent or transmitted and that has been received by the other Party shall be deemed to have been delivered in accordance with the terms of this Agreement.
- Any notices that are sent to the Customer by the Service Provider purely for informational purposes and which do not relate to a dispute between the Parties may be sent by Short Message Service (“SMS”) to the cellular phone number specified by the Customer on the first page of these Master Services Terms. This clause 21.3 pertains only to informational notices and the notices referred to in clause 11.5.3 above, and expressly excludes legal notices.
This Agreement (being these Master Services Terms and all terms under active Service Order Forms) 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.
- In the event of a dispute concerning this Agreement, each Party shall in the first instance promptly bring the dispute to the attention of a director or similar person in a management position.
- If the Customer wishes to dispute any invoice or part of an invoice, falling due in accordance with clause 0, the Customer shall, before the invoice is due, deliver a notice in writing to the Service Provider setting out the nature of the dispute, including: (i) date and number of the disputed invoice; (ii) amount in dispute; (iii) reason for the dispute; and (iv) supporting documentation, as appropriate. Any undisputed part of a disputed invoice shall be paid by the Customer in accordance with clause 3.8.
- The Parties shall use all reasonable endeavours to resolve such payment disputes as soon as is reasonably practicable.
CUSTOMER DATA AND PRIVACY
- The Customer acknowledges that the Service Provider and its respective contractors will, by virtue of the provision of Services, come into possession of Customer Data.
- The Service Provider has implemented and maintains appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against other unlawful forms of processing. The Customer acknowledges that it has a right to access Regulated Customer Data upon written notice and have any agreed errors in such Regulated Customer Data rectified.
- The Customer acknowledges and agrees that the Service Provider and its respective sub-contractors may use or process Customer Data:
- in connection with the provision of Services;
- to communicate to the Customer information regarding the Service Provider’s products and services; and
- the Customer may withdraw consent for such use, processing or transfer of Customer Data, as set out above, by sending a written notice to the Service Provider to that effect. The withdrawal of consent does not apply to circumstances where the Service Provider is required to use or process Customer Data in order to (i) provision, manage, account and bill for the Services; (ii) carry out fraud detection; or (iii) comply with any statutory obligation, regulatory requirement, court or other public authority order.
- The Customer warrants that it has obtained, and will obtain, all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer Data as described in this clause 24.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed and construed in accordance with South African law, and the Parties hereto irrevocably agree to the exclusive jurisdiction of the South African courts.