Terms Of Service
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Acceptable Use Policy
This Acceptable Use Policy (“AUP”) specifies the actions prohibited to users of the network and systems (“infrastructure”) of Lighthouse Fibre (Pty) Ltd (“Go Connect”) and its subsidiaries. Users are required to adhere to this policy without exception.
The terms “User”, “Subscriber” and “Customer” are used interchangeably.
1. LAWS AND REGULATIONS
1.1. Go Connect’s infrastructure may be used only for lawful purposes. Users may not violate any applicable laws or regulations of South Africa within the territory of South Africa. Should the user reside outside of South Africa, the laws of the country in which the user resides shall apply.
1.2. Transmission, distribution or storage of any material on or through the infrastructure in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secrets or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
2. THE NETWORK
2.1. The user acknowledges that Go Connect is unable to exercise control over the content of the information passing over the infrastructure and the Internet, including any websites, electronic mail transmissions, news groups or other material created or accessible over its infrastructure. Therefore, Go Connect is not responsible for the content of any messages or other information transmitted over its infrastructure.
2.2. Go Connect’s infrastructure may be used to link into other networks worldwide and the user agrees to conform to the acceptable use policies of these networks.
2.3. The user may obtain and download any materials marked as available for download off the Internet but is not permitted to use its Internet access to distribute any copyrighted materials unless permission for such distribution is granted to the user by the owner of the materials.
2.4. The user is prohibited from obtaining and/or disseminating any unlawful materials, including but not limited to stolen intellectual property, child pornography, and/or any unlawful hate-speech materials.
3. SYSTEM AND NETWORK SECURITY
3.1. All references to systems and networks under this section includes the Internet (and all those systems and/or networks to which user is granted access through Go Connect) and includes but is not limited to the infrastructure of Go Connect itself.
3.2. The user may not circumvent user authentication or security of any host, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, host, or network (referred to as “denial of service attacks”).
3.3. Violations of system or network security by the user are prohibited and may result in civil or criminal liability. Go Connect will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
3.3.1. Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of Go Connect.
3.3.2. Unauthorised monitoring of data or traffic on the network or systems without express authorisation of Go Connect.
3.3.3. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
3.3.4. Forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting.
4. FAIR ACCESS POLICY
4.1. To help ensure that all users have fair and equal use of the service and to protect the integrity of the network, Go Connect reserves the right, and will take necessary steps, to prevent improper or excessive usage thereof, the action that Go Connect may take includes, but is not limited to:
4.1.1. Limiting throughput
4.1.2. Preventing or limiting service through specific ports or communication protocols; and/or
4.1.3. Complete termination of service to users who grossly abuse the network through improper or excessive usage.
4.2. This policy applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited usage.
4.3. Online activity will be subject to the available bandwidth, data storage and other limitations of the service provided, which Go Connect may, from time to time, revise at its own discretion and without prior notice to the customer. Acceptable Use Policy
5. EMAIL USE
5.1. It is explicitly prohibited to send unsolicited bulk mail messages (“junk mail” or “spam”) of any kind (commercial advertising, political tracts, announcements, etc.). This is strongly objected to by most Internet users and the repercussions against the offending party and Go Connect can often result in disruption of service to other users connected to Go Connect; forward or propagate chain letters nor malicious e-mail; send multiple unsolicited electronic mail messages or “mail-bombing” to one or more recipient; sending bulk electronic messages without identifying, within the message, a reasonable means of opting out from receiving additional messages from the sender; using redirect links in unsolicited commercial e-mail to advertise a website or service;
5.2. Maintaining of mailing lists by users of Go Connect is accepted only with the permission and approval of the list members, and at the members’ sole discretion. Should mailing lists contain invalid or undeliverable addresses or addresses of unwilling recipients those addresses must be promptly removed.
5.3. Public relay occurs when a mail server is accessed by a third party from another domain and utilised to deliver mails, without the authority or consent of the owner of the mail-server. Users’ mail servers must be secure against public relay as a protection to both themselves and the Internet at large. Mail servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection such delivery must be disallowed. Go Connect reserves the right to examine users’ mail servers to confirm that no mails are being sent from the mail server through public relay and the results of such checks can be made available to the user. Go Connect also reserves the right to examine the mail servers of any users using Go Connect mail servers for “smarthosting” (when the user relays its mail off a Go Connect mail server to a mail server of its own) or similar services at any time to ensure that the servers are properly secured against public relay. All relay checks will be done in strict accordance with Go Connect’s policy of preserving customer
6.1. Upon receipt of a complaint, or having become aware of an incident, Go Connect reserves the right to:
6.1.1. Inform the user’s network administrator of the incident and require the network administrator or network owner to deal with the incident according to this AUP.
6.1.2. In the case of individual users suspend the user’s account and withdraw the user’s network access privileges completely.
6.1.3. Charge the offending parties for administrative costs as well as for machine and human time lost due to the incident.
6.1.4. In severe cases suspend access of the user’s entire network until abuse can be prevented by appropriate means.
6.1.5. Share information concerning the incident with other Internet access providers, or publish the information, and/or make available the users’ details to law enforcement agencies. Any one or more of the steps listed above, insofar as they are deemed necessary by Go Connect in its absolute and sole discretion, may be taken by Go Connect against the offending party. All cases of violation of the above Acceptable Use Policy should be reported to firstname.lastname@example.org.
General Terms & Conditions
1. INTERPRETATION AND PRELIMINARY
Unless a contrary intention clearly appears –
1.1. the following terms shall have the following meanings –
1.1.1. “activation” means the enabling of a service at the supplier’s premises to operate on one or more networks;
1.1.2. “addendum” means a supplementary agreement signed by both the supplier and the customer that expands or modifies a current agreement and which endures for the duration of the current agreement;
1.1.3. “agreement” means the general terms and conditions, the terms and conditions, the proposal, the subscriber agreement and all addenda, if applicable, concluded by the customer and executed in terms hereof, including, in the case of Hosted Exchange services, a written instruction to the supplier to commence or cancel additional services;
1.1.4. “charges” or “rates” means the installation charges, monthly services charges, usage charges and any other charges pertaining to the provision of services by the supplier to the customer;
1.1.5. “commissioned” means the date on which the services are operational;
1.1.6. “CPA” means the Consumer Protection Act, 2008;
1.1.7. “CPA Regulations” means regulations promulgated pursuant to the CPA from time to time;
1.1.8. “customer“ means any person who has entered into an agreement with the supplier for the provision of services and/or the use of the equipment, or who has applied to the supplier for the provision of services and/or the use of the equipment, and is used interchangeably with the term “subscriber”;
1.1.9. “equipment” means all devices including software provided by the supplier to the customer in order to enable the supplier to provide the services;
1.1.10. “general terms and conditions” means this document excluding all proposals executed in terms hereof;
1.1.11. “initial period” means the duration of the first agreement signed by the customer in respect of the services as reflected in the subscriber agreement which period shall commence on the commissioned date; 1.1.12. “initial services” means the services that are provided by the supplier to the customer in terms of the first agreement signed by the customer in respect of the services;
1.1.13. “installation” means the installation of equipment at the customer’s premises
1.1.14. “managed services” means the on-going management and provision of services by the supplier in return for a monthly payment by the customer; 1.1.15. “month” shall mean a calendar month commencing at 0h00 on the relevant day of the relevant calendar month;
1.1.16. “monthly service charge” means the monthly fees levied by the supplier in consideration for the customer’s access to and use of the network services or other services provided by the supplier
1.1.17. “network provider” means any authorised supplier of telecommunications facilities;
1.1.18. “network services” means any services provided by any of the networks including but not limited to fixed line operators, cellular operators, wireless operators or any other operator that provides access and network services (including value added services) made accessible to the customer by the supplier in terms of this agreement;
1.1.19. “product” means any combination of equipment and services provided by the supplier to the customer;
1.1.20 “product specific terms and conditions” means the specific terms and conditions applicable to the specific product or services as reflected in the proposal;
1.1.21. “proposal” means the order form or proposal document submitted by the supplier to the customer and signed by the customer in respect of the provision of
the services and which incorporates the subscriber agreement, the product specific terms and conditions and the provisions of this agreement;
1.1.22. “renewal period” means, unless otherwise provided for terms and conditions or subscriber agreement:
220.127.116.11. if the customer is a juristic person, a period of 24 successive months commencing on the day immediately following the expiration of the initial period or each successive renewal period;
18.104.22.168. if the customer is a natural person, the period specified in clause 3.3.3;
1.1.23. “Republic” means the Republic of South Africa;
1.1.24. “services” means the services, managed or otherwise, and/or products provided by the supplier to the customer as set out in the proposal; 1.1.25. “service provider” means any Electronic Communications Networks Licensee or Electronics Communications Licensee licensed under the
Electronic Communications Act, 2005, or any service provider of an Electronic Communications Networks Licensee or Electronics Communications Licensee;
1.1.26. “software” means any computer programme that is either embedded or provided as a stand-alone application, or accessed via the internet or other web browsing method;
1.1.27. “subscriber agreement” means the summary of the agreement signed by the customer for the provision of services by the supplier to the customer; 1.1.28. “supplier” means Lighthouse Fibre (Proprietary) Limited;
1.1.29. “traffic type” means any specific type of calls carried by the supplier over the networks;
1.1.30. “usage charges” means the charges charged by the supplier to the customer for recorded usage of the network services;
1.2. when any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
1.3. the terms of the agreement shall prevail in the event of a proposal and this agreement; and
1.4. in circumstances of the CPA being applicable to the agreement, the provisions of the CPA shall prevail in the event of a conflict between any provision of the agreement and the provisions of the CPA.
2. APPOINTMENT AND AUTHORITY
2.1. The customer appoints the supplier to supply the services to the customer for the initial period in accordance with the terms and conditions set out in the agreement, although the parties will be bound by the terms and conditions of this agreement with effect from the date of signature hereof. 2.2. The customer hereby authorises the supplier to:
2.2.1. communicate with other service providers to enable the supplier to obtain all information which may be necessary in order for the supplier to render the services. Should the supplier so require, the customer shall sign a separate letter authorising the supplier to approach the service providers to request such information as aforesaid which can be furnished as proof that the supplier has been mandated by the customer to approach the service providers for the purposes set out in clause
2.2.2. to enter into agreements and arrangements with third parties as may be necessary for the supplier to render the services.
3.1. The supplier undertakes to supply the services to the customer subject to the succeeding terms of this agreement, for the duration of the initial period; provided that in the event that the initial services do not become commissioned as a result of the actions or omissions of customer, the supplier shall have the right to recover from the customer, the minimum monthly charge stipulated in the proposal (or pro rata portion thereof) payable by the customer for the period of the delay together with any reasonable wasted costs incurred by the supplier and customer hereby indemnifies the supplier accordingly.
3.2. If the customer is a juristic person, at the expiry of the initial period, unless otherwise notified in writing to the customer, the services and the agreement shall continue automatically on the terms contained in this agreement for an unlimited number of renewal periods, unless terminated by the customer, on expiration of the initial period or a renewal period, as the case may be, by giving the supplier a written notice of termination not less than 30 and not more than 90 days before the expiration of the initial period or renewal period, as the case may be.
3.3. If the customer is a natural person:
3.3.1. the customer may terminate the agreement:
22.214.171.124. on the expiry of the initial period, on written notice to the supplier; 126.96.36.199. during the initial period, on 20 business days’ written notice to the supplier, subject, however, to the provisions of clause 3.6;
3.3.2. the supplier may, during the initial period, terminate the agreement 20 business days’ after giving the customer written notice to remedy a material breach and the customer failing to remedy such breach within such period; 3.3.3. and the agreement is not terminated by either party in accordance with the aforegoing during the initial period, unless the customer agrees to a renewal of the agreement for a further fixed term, the agreement will continue, after the initial period, on a month to month basis (terminable by either the supplier or the customer on 1 month’s written notice to the other), subject to any material changes of which the supplier has given written notice pursuant to clause 3.3.4;
3.3.4. not more than 80 nor less than 40 business days before the expiry of the initial period, the supplier shall notify the customer in writing of the impending expiry of the agreement, which notice will include any material changes that would apply if the agreement were to be renewed and the customer’s right to terminate or continue with the agreement on the expiry of the initial period.
3.4. Notwithstanding the aforegoing, during any automatic renewal period the discounts applicable to the services provided for in the agreement shall not be available to the customer until the customer concludes a new written agreement with the supplier in respect of the services provided by the supplier for the term of the renewal period.
3.5. Unless the CPA applies to this agreement, the supplier shall furthermore be entitled to terminate this agreement at any time by giving 3 months’ written notice to this effect to the customer. Should the provision of any of the products or services by the supplier on the basis provided for in this agreement be finally declared illegal by an Act of Parliament, any regulatory body or court of law, the supplier shall be entitled to cancel this agreement on written notice to the customer.
3.6. Should the customer terminate this agreement prior to the expiry of the initial period or any renewal period for any reason other than expressly provided for in this agreement, the customer shall remain liable for all amounts owing to the supplier up until the date of termination and the supplier shall be entitled (unless the customer is entitled to terminate the agreement without penalty in accordance with the provisions of the CPA, if applicable) to levy a cancellation/early settlement fee provided for in the proposal, provided that where the customer is a natural person, such cancellation fee shall be limited to a reasonable fee determined in accordance with the guidelines set out in the CPA and, if applicable, the CPA Regulations.
3.7. Unless otherwise expressly stated in the agreement, upon expiry of the initial period or any renewal period, the supplier, in its sole discretion, but subject to clause 3.3.4, may remove or change any discounts that were applicable during the initial period or renewal period, as the case may be. 3.8. Any new or additional services or expansion of the initial services to be provided by the supplier to the customer from time to time shall be subject to the terms contained in the proposal or required to be agreed upon by the parties in writing in a new agreement (or in an addendum to the existing proposal) and such new services shall commence on the date on which such new services are commissioned.
3.9 The supplier may in its sole and absolute discretion after the routing of any traffic at any time in pursuit of the provision of services, such routing changes having no effect on the validity of the agreement.
3.10. The services provided by the supplier are subject to government or relevant authority regulated limitations and transmission limitations, and may be temporarily and/or permanently interrupted or curtailed as necessary or appropriate for the proper operation of the services.
3.11. If the conclusion of the agreement is the result of direct marketing and the provisions of the CPA are applicable hereto, the customer has the right to cancel the agreement without reason or penalty by written notice to the supplier within 5 business days after the later of the date on which the agreement was concluded or the services or equipment were delivered to the customer. Should the customer have opened the original packaging of the products prior to returning same to the supplier on cancellation of this agreement, the supplier shall be entitled to deduct from any reimbursement or refund which may be payable to the customer on cancellation, a reasonable amount for the use and/or depletion of the products.
4. SERVICES AND EQUIPMENT: DELIVERY AND INSTALLATION
4.1. The supplier shall deliver the equipment and the services to the customer at the address nominated by the customer on the subscriber agreement. The customer shall be obliged to pay the reasonable costs incurred by the supplier in delivering the equipment. If the supplier cannot deliver the equipment to such address through no fault of the supplier, the customer shall be obliged to pay all reasonable costs incurred by the supplier in making the attempted delivery. Subject always to the provisions of clause 11, the supplier shall use its reasonable endeavours to meet the stipulated dates and times for delivery of the equipment and the services. The supplier shall not be liable in any manner whatsoever to the customer for any loss arising from any failure or delay in performance or providing services and/or equipment resulting from any of the force majeure events referred to in clause 11 nor for any other reason unless such failure or delay is directly attributable to the gross negligence or fraudulent intent of the supplier.
4.2. Unless the customer proves otherwise and without limiting the rights of the customer pursuant to the CPA, if applicable, signature by the customer on any acceptance certificate provided by the supplier and/or its service providers upon the installation of the equipment or at the instance of a commissioned service, shall be deemed to be an acknowledgement by the customer that it has fully inspected and approved the equipment and all of its components and that the equipment and components have been received to the full satisfaction of the customer. Subject to the customer’s rights to have defective products returned, repaired or monies paid in respect thereof refunded pursuant to the CPA, insofar as the CPA is applicable to the agreement, the customer shall have no claim against the supplier of whatsoever nature should, after such acceptance by the customer, it transpire that the equipment and/or any component thereof is unacceptable to the customer for any reason.
4.3. The customer shall, at its own cost and expense, be responsible for: 4.3.1. ensuring that the communication services and facilities, including without limitation, telephone facilities and lines, installation area/s, electrical
outlet/s, connection requirements and access way/s are suitable for the installation, passage and electrical connection of the equipment and services when they are delivered for installation and thereafter; and
4.3.2. obtaining all necessary approvals and authorities imposed by any competent authority and required for the purpose of the supply, delivery and/or installation of the equipment and the services, including land owners consent, where the customer is not the landowner. The customer hereby indemnifies the supplier against any claim or liability suffered by the supplier by reason of such approval and authorities not having been obtained.
4.4. The installation of last mile access solutions may be subject to feasibility to be confirmed by a physical site survey, such survey only to be conducted after signature of the contract.
4.4.1. Additional installation charges may apply, subject to the results of the physical site survey. In such an instance, the customer will be notified before the service is installed.
4.4.2. Should a last mile access medium not be feasible to supply, the Supplier will endeavour to supply a similar and/or equal service, subject to the customers consent.
4.5. Once installation has been completed, any subsequent callouts of engineers shall be billed at the engineer’s charge out rate, with a minimum charge out of one hour plus travel expenses.
5.1. The customer shall use any software provided to it by the supplier, only for the purposes for which it is intended and licensed in terms hereof.
5.2. The customer shall not nor permit anyone else to reverse engineer, decompile, modify, tamper with, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the software or any part, variation, modification, release or enhancement thereof or have any software or any program written or developed for it based on the software.
5.3. All rights of whatever nature in and to the software and all upgrades, updates, modifications and variations thereto from time to time, shall vest in the supplier and no rights in and to the software, its upgrades, updates, modifications and variations thereto are granted or assigned to the customer. The customer shall not, at any time in any way, question or dispute the ownership of the software and undertakes not to infringe or prejudice any rights of the supplier in and to the software.
5.4. The supplier shall upgrade any software provided to the customer at its sole discretion and shall not be obliged to perform such upgrades at any time unless a specific provision has been included in the agreement requiring that the supplier performs such upgrade.
5.5. It is the customer’s responsibility to notify the supplier of its requirement to renew software licences.
6. USE AND STORAGE OF INFORMATION
6.1. The customer acknowledges that the supplier may establish general practices and limits concerning the use of the services (which it shall be entitled to modify from time to time in accordance with industry standards), including, the period of time that the customer’s email messages and other content uploaded on to the supplier’s server is retained, the quantity and size of content that may be sent from or received by the customer and that available disk space that will be allocated to the supplier’s servers on the customer’s behalf.
6.2. The supplier shall not be obliged in any way to delete or store any messages and/or other electronic communications or exchanges that the supplier maintains or transmits.
6.3. The supplier shall furthermore be entitled on written notice to the customer to terminate the provision of the services should the customer fail to use the services for a continuous period exceeding 12 months, or on termination of the contract.
7. CUSTOMER’S OBLIGATIONS IN RESPECT OF THE EQUIPMENT
7.1. The customer undertakes to use the equipment only for the purpose for which it is intended and to ensure that its employees, agents and/or sub- contractors comply with the instructions and recommendations of the supplier.
7.2. Upon delivery or collection of the equipment as the case may be, risk in the equipment shall pass to the customer who shall then be responsible for: 7.2.1. keeping the equipment in its possession and control, protected against loss and damage from whatsoever cause; free from any judicial attachment, hypothec or any other legal charge or process and shall not encumber the equipment;
7.2.2. providing clean power to the equipment;
7.2.3. exercising due care and diligence in respect of the equipment;
7.2.4. protecting all equipment against any form of lightning by means of installing a lightning protection, unless expressly provided by the supplier to the customer, and
7.2.5. obtaining adequate insurance for the equipment for the full replacement value thereof.
7.3. The customer furthermore agrees to ensure that the equipment is maintained in clean, serviceable and good working order. Upon the expiry of this agreement, the customer shall return all equipment in good working
order and in the same condition as at the date of installation, fair wear and tear excepted.
7.4. The customer agrees that any equipment supplied by the supplier and/ or its service providers pursuant to this agreement is movable property and that notwithstanding any installation thereof at the customer’s premises, unless the customer has purchased the equipment outright and has paid in full for such equipment, the equipment shall at all times remain the property of the supplier and/ or its service providers, as the case may be, who shall have the right to inspect the equipment at all reasonable times during the currency of this agreement and to remove the equipment on termination of the agreement for any reason. Accordingly, the customer undertakes forthwith upon the installation of the equipment, to notify the landlord of the premises where the equipment is to be installed of the supplier’s and/ or its service provider’s ownership of the equipment.
7.5. The customer shall provide:
7.5.1. the supplier with access to its premises, the equipment, software, telephone ports and/or network for the purposes of monitoring and correcting the equipment and/or software and monitoring the performance of the customer’s obligations hereunder;
7.5.2. the supplier with plans, organograms, structural, architectural and block diagrams, user lists, company procedures and any other form of information that the supplier deems necessary for the proper provision of the services;
7.5.3. its own security procedures so as to ensure the integrity of its systems, it being specifically recorded that, notwithstanding the provisions of 7.6 and 7.7, that the supplier shall not be liable for any loss suffered by the customer attributable to loss of integrity of its systems unless such loss is directly attributable to the gross negligence or fraudulent intent of the supplier.
7.6. In respect of any equipment provided to the customer by the supplier under a managed services agreement and in respect of equipment provided by the supplier at the supplier’s cost to the customer, where such equipment is covered by the supplier’s insurance:
7.6.1. the customer undertakes to comply fully with the terms and conditions of the insurance cover procured by the supplier, for all the equipment supplied to it by the supplier;
7.6.2. if the equipment or any part thereof is lost, stolen or damaged for any reason whatsoever and howsoever arising, the customer shall immediately notify the supplier in writing of such loss, theft or damage;
7.6.3. In the case of equipment that is damaged, and until such notification has been received by the supplier, the customer shall remain fully liable for all costs and charges pertaining to such equipment and to the services.
7.7. The supplier shall, as soon as reasonably possible after receipt of written notification of such theft, loss or damage for equipment supplied under a managed services agreement: 7.7.1. repair or replace equipment (other than equipment that has not been supplied by the supplier, the repair and/or replacement of which shall be for the customer’s entire responsibility); 7.7.2. bear the costs of such repair or replacement except where such repair or replacement is necessary as a result of an accident or force majeure event (as contemplated in clause 11) or through improper, malicious or negligent use by the customer of the equipment or use in breach of the terms and conditions hereof. The supplier shall in its sole discretion, using reasonable testing methods, determine whether such equipment has been subjected to improper, malicious or negligent use.
7.8. In respect of any theft, loss or damage of equipment that has been purchased outright by the customer from the supplier, and notwithstanding the provisions of clause 8.10, the customer shall be fully liable for all costs and charges pertaining to the replacement of such equipment. Such loss, theft of, or damage to and/ or the issue of replacement equipment shall in no way be deemed to constitute a termination of the agreement which shall continue to be of full force and effect.
7.9. The customer shall be obliged to ensure that the equipment and all components thereof at all times remain at the site of installation thereof. Should the customer wish to relocate any fixed or movable component(s) of the equipment to alternative premises, the customer shall be precluded from doing so unless it has made written application on 4 months’ notice to the supplier to such effect and the supplier has approved such relocation in writing. The customer will be charged for any site- relocation requirement (whether within the customer’s existing premises or to alternative premises) at the relevant rates stipulated by the supplier and/or its service providers at the time of such site re-location.
7.10. The supplier may at any time re-configure upgrade, and/or exchange any equipment at its sole and absolute discretion, to meet its obligations required to provide the services. The supplier shall not be obliged to effect any other upgrades or improvements unless it determines to do so in its sole and absolute discretion.
7.11. The customer shall not itself be entitled to nor permit any other party to repair, maintain, modify, alter or add to the equipment in any manner whatsoever without the supplier’s prior written consent.
7.12. Unless the prior written approval of the supplier is obtained, the customer shall ensure that only equipment and services marketed and sold by the supplier may be addition made to the equipment during the currency of this agreement shall become the property of the supplier without reimbursement or compensation to the customer.
8. CHARGES AND PAYMENT
8.1. Unless otherwise agreed to by the supplier in writing or provided for in the proposal or in the product specific terms and conditions, in consideration of the provision of the services and equipment by the supplier to the customer, the customer shall effect payment to the supplier, in full, without deduction or set off and free of bank charges, on date of invoice:
8.1.1. for the supply and delivery of services, equipment and installation; 8.1.2. for the monthly service charge and/or all other maintenance charges and insurance charges, if applicable, and of all other relevant periodic charges (including monthly and annual charges) in advance, as specified in the proposal;
8.1.3 for the usage charges, in arrears, as specified in the proposal;
8.1.4. at the supplier’s premises or at the supplier’s banker’s premises.
8.2. It is expressly recorded and agreed that the supplier shall be entitled, on 30 days’ written notice to the customer, to increase the charges payable by the customer in circumstances of either such increases being specifically provided for in the proposal or the direct costs to the supplier in providing the services (including, without limitation, the charges charged by the network provider(s) in respect of such services) being increased. In such event the increases to the charges shall be commensurate with the increased costs of providing the services. Furthermore, the supplier shall be entitled to vary any savings and/or rates guaranteed or implied to the customer in the event of a change in network tariffs or the regulatory environment which impacts on the services on the giving of 30 days’ written notice thereof to the customer.
8.3 Unless the customer notifies the supplier in writing within 3 days of receipt of an invoice to the contrary, the contents of such invoice shall be deemed to be correct.
8.4. Unless otherwise stipulated, all amounts payable by the customer to the supplier in terms of this agreement are exclusive of VAT and any other statutory levies, taxes and imposts as may be levied thereon from time to time. The customer shall accordingly be liable for VAT and all rates, taxes, government or statutory levies as may be imposed in respect of the services from time to time.
8.5. The supplier shall be entitled to insist that all amounts payable by the customer are made through a debit order on the terms and conditions stated in the proposal and the customer shall be obliged to execute and deliver such further instruments, contracts, forms and other documents (“additional documentation”) or perform such further acts as may be required by the supplier for the purposes of securing such debit order/s in favour of the supplier, copies of which additional documentation shall have been made available to the customer prior to the date of signature hereof. Where payment is made by the customer through a debit order, other electronic means or any other intermediary, the customer’s bankers or other intermediaries shall act as customer agents and the customer shall have discharged its obligations only upon payment being received by the supplier at the supplier’s premises or by the bankers of the supplier.
8.6. In terms of the debit order, the customer is aware of non-refundable setup fee, outright purchases and pro-rata amounts applicable to the services applied for, and accepts that these amounts will be debited from their account immediately when the service is activated.
8.7. Any cancellation of such a debit order without the prior written consent of the supplier shall constitute a breach by the customer of this agreement. 8.8. The supplier shall be entitled to charge the customer the greater of a monthly administration fee of R35 a month (escalated on an annual basis in accordance with annual increases in CPIX) and interest at an amount equal to prime plus 5% of any overdue sums from date of invoice.
8.9 A certificate by a director of the supplier as to the amount owing by the customer to the supplier at any time shall be sufficient proof thereof for provisional sentence or summary judgment.
8.10. In the event of an outright purchase of equipment, if such equipment has been delivered to the customer’s premises and is subsequently lost or stolen from the customer’s premises prior to it having been paid for either in part or in full, the customer shall be responsible for the full payment of such equipment to the supplier.
8.11. Unless otherwise specified in the agreement, in the case of an outright purchase of equipment, the customer shall pay the full amount of the total deal value
upon delivery of the equipment to the customer’s premises.
8.12. Unless otherwise specified in the agreement, in the case of an outright purchase of the equipment by the customer, where the customer cancels the order
after the supplier has ordered the equipment from its suppliers, the supplier shall be entitled to charge the customer an amount equal to 7% of the value of such ordered
equipment to the supplier, which the parties acknowledge and agree constitutes a reasonable charge within the meaning of section 17 of the CPA.
8.13. Where it is the customer’s responsibility to install lightning protection equipment, and the equipment has been damaged by lightning, it is the customer’s responsibility for the full payment of such repair or replacement to the supplier.
9.1. The supplier may upon 5 days’ written notice to the customer, suspend the customer’s use of the services in the event that –
9.1.1 any modification, maintenance or remedial work is required to be undertaken pertaining to the services; and/or
9.1.2. the customer fails to perform any of its obligations or breaches any term/s of this agreement; and/or
9.1.3. the customer at any time exceeds the credit limit which the supplier, in its absolute discretion, shall set and notify the customer of from time to time. 9.2. The supplier may require the customer to effect payment of any applicable reconnection charges pursuant to the restoration of the services suspended in the circumstances contemplated in clauses 9.1.
9.3. The customer remains liable for the applicable charges payable by it in terms of this agreement during any period of suspension in the circumstances contemplated in clauses 9.1.
10.1. Save where otherwise provided for in the proposal or elsewhere herein, should either party (“the defaulting party”) –
10.1.1. fail to pay any amount payable under this agreement within 7 days after receipt of written demand requiring such payment;
10.1.2. commit a breach of any provision (other than a payment obligation) of this agreement and, if such breach is capable of remedy, fail to remedy such breach within 14 days after receipt of written demand from the other party requiring it to do so;
10.1.3. becomes the subject of business rescue proceedings, is placed under liquidation, judicial management or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;
10.1.4. commit any act which if committed by a natural person would constitute an act of insolvency or become insolvent;
10.1.5. compromise or attempt to compromise generally with any of its creditors;
10.1.6. have a final judgement taken against it which is not satisfied within 30 days after the granting of such judgment, then the other party (“the aggrieved party”) shall be entitled, without prejudice to any of its other rights under this agreement and/or in law and by giving written notice, to immediately cancel this agreement or to claim immediate specific performance of all of the defaulting party’s obligations whether or not due for performance, in either event without prejudice to the aggrieved party’s right to claim damages. Furthermore, and without prejudice to the supplier’s rights pursuant to the aforegoing, should the supplier have suffered any damages as a result of interconnect bypass, the supplier shall be entitled to recover from the customer an amount equal to the interconnect rate applicable to the supplier plus 10% thereof.
11. FORCE MAJEURE
If either party is prevented or restricted from carrying out all or any of its obligations under this agreement by reason of any event constituting force majeure (being any cause beyond the reasonable control of either party, including without limitation adverse weather conditions, unpredictable delays caused by traffic congestion,
diversion or road works, the unavailability of raw materials, strikes, power outages, industrial disputes, regulatory interference or the unavailability of any communications lines and/or network operator facilities), then that party shall be relieved of its obligations under this agreement during the period that such event
continues, and shall not be liable for any delay and/or failure in the performance of such obligations during such period, provided that if the force majeure event continues for a period longer than 14 days, either party may cancel this agreement on written notice.
12. ABUSE OF SERVICES
The customer hereby warrants and undertakes in favour of the supplier that the customer –
12.1. shall not use nor allow the services to be used for any improper, immoral or unlawful purpose, including, without limitation, attempting to utilise the services to route (or assist another party route) transit traffic from other networks to the supplier, nor in any way which may cause injury or damage to persons or property or an impairment or interruption of the services;12.2. shall comply with all relevant legislation and regulations imposed by any competent authority and all directives issued by the supplier relating to the services including its Acceptable Use Policy available on the supplier’s website, and hereby indemnifies the supplier for any losses, expenses, damages, harm or amount for which the supplier may become liable arising from or relating to the use of the services in any manner whatsoever which violates the terms of this agreement, the supplier’s Acceptable Use Policy or any law, legislation or regulations; and/or any claims made by any third party arising from the customer’s use of the services unless such losses, expenses, damages, harm or liability were directly attributable to the gross negligence or fraudulent intent of the supplier.
13. OBLIGATIONS ON TERMINATION AND/ORSUSPENSION
13.1. The customer is liable for any obligation accrued at the date of termination or suspension of the services, including the payment of any costs or charges that may arise in connection with such termination (including, without limitation, the cancellation fees referred to in clause 3.6) or suspension, and the payment of all outstanding fees for the use of the services prior to said termination or suspension.
13.2. The payment obligations of the customer in terms of this agreement are not suspended, stayed, delayed or otherwise affected by any suspension of access to the services where such suspension arises from the customer’s failure to comply with, or violation of, the terms and conditions of this agreement or any law or legal obligation of the customer.
13.3. The supplier shall be entitled to immediately deactivate the service on the date of termination or cancellation and further, has no obligation to the customer after any termination or cancellation of this agreement.
14. WARRANTIES, EXCLUSION AND LIMITATION OF LIABILITY
14.1. The supplier shall use all reasonable endeavours to ensure that the equipment supplied by it and/or its service providers is in accordance with the agreement and is otherwise correct in terms of the customer’s requirements. Subject to any warranties that may be implied by the CPA to the extent that the CPA is applicable to the agreement, the supplier does not, however, make any representations nor, unless expressly given in writing, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the services or the equipment including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose.
14.2. Subject to the provisions of the CPA to the extent that the CPA is applicable to the agreement, the supplier shall not be liable to the customer or any third party for any loss or damage which the customer or such third party may suffer or incur as a consequence of utilising the services and/or software and/or equipment, irrespective of whether such loss or damage is direct, special, incidental, consequential or otherwise unless such loss or damage was directly attributable to the gross negligence or fraudulent intent of the supplier.
14.3. Without limiting the generality of the aforegoing, the supplier shall not (other than in circumstances of the supplier’s gross negligence or fraudulent intent) be liable for any damage or loss suffered by the customer caused by and/or attributable to –
14.3.1. the services being interrupted, suspended or terminated, for whatsoever reason; and/or
14.3.2. the supplier’s failure to suspend the provision of the services to the customer in terms of an arrangement between the supplier and the customer or after the customer has specifically requested the supplier to do so in order to limit the applicable charges; and/or
14.3.3. communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever; and/or
14.3.4. circumstances that constitute a force majeure event (as contemplated in 11); and/or
14.3.5. the customer’s failure to perform its obligations under this agreement; and/or
14.3.6. changes made to the customer’s operating environment which were not communicated to the supplier; and/or
14.3.7. a power failure or power interruptions at any site from where the services or any component of the services are rendered; and/or
14.3.8. any failure or delay by the customer to report problems or queries to the supplier’s call centre; and/or
14.3.9. the server and/or equipment of any recipient party being non- functioning for any reason whatsoever; and/or
14.3.10. the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the supplier and/or the customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the services;
14.3.11. the unavailability of the supplier’s website for any reason whatever; and/or
14.3.12. the customer using the service for any unlawful, improper or immoral purpose; and/or
14.3.13. the unlawful or fraudulent accessing by a third party of the customer’s telecommunication lines, PBX or other telecommunication equipment. In such circumstances, the customer shall remain liable for all charges incurred pursuant to such unlawful or fraudulent access and hereby indemnifies the supplier against all loss, liability, damage or expense which the supplier may suffer as a result thereof.
14.4. Notwithstanding any other provisions of this agreement, the supplier’s liability to the subscriber and/or any third p
Terms of Service - Business
Business Terms & Conditions
In this Agreement, unless the context requires otherwise, each of the following words and expressions shall have the meaning stated opposite it and cognate expressions shall have a corresponding meaning, namely:
“Business Hours” means Mondays to Fridays 08H00 to 17H00 excluding Public Holidays;
‘’After Hours’’ means Monday to Friday 17H00 to 22H00. Saturday, Sunday and Public Holidays 08H00 to 22H00.
“Maintenance Plan” means the optional maintenance plan sold by the service provider to cover damage to the CPE, including rain/water, lightning and other accidental damage to the CPE but excluding theft and malicious damage “inclusive of” will always be read as “inclusive of but limited< to”
“Client” means the subscriber on any subscription agreement, service application or service order;
“Client Data” means the data transmitted and received using the Go Connect network;
“CPE” means Client Premises Equipment, the radio antenna that is installed at client’s premises for the delivery of the service;
“Parties” means the parties to this Agreement, being the Provider and the Client, and “Party” shall mean either one of them, as the context may require; and
“Service provider” means Go Communications Network (Pty) Ltd, a close corporation duly incorporated in terms of the Close Corporation Act of South Africa (as amended), with its main place of business at 36 Zenith Road, Solheim, Germiston, Gauteng, 1401 including any and all of its successors in title; IE: Go Connect.
“ZAR” or “Rand” means the lawful currency of the Republic of South Africa.
In this Agreement, unless the context clearly indicates otherwise:
words importing any one gender shall include the other gender; the singular shall include the plural and vice versa; an expression which denotes a natural person includes a juristic person and vice versa; the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it; and any reference in this Agreement to “days” shall be construed as calendar days.
The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
If any provision in clause 1 is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that such provision is contained in such clauses, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.
Save where clearly indicated to the contrary, expressions defined in this Agreement shall bear the same meanings in any schedule hereto unless such schedule contains an alternative definition for the expression.
Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
When any number of days are prescribed in this Agreement (including Business Days), same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
When any number of Business Days is prescribed in this Agreement, same shall be reckoned inclusively of the first and exclusively of the last Business Day.
Should the day for the performance of any obligation in terms of this Agreement fall on a day which is not a Business Day, then such obligation shall be performed on the immediately succeeding Business Day.
This Agreement shall be binding on and enforceable by the successors-in-title, administrators, trustees, permitted (in terms of this Agreement) assigns or liquidators of the parties as fully and effectually as if they had signed this
Agreement in the first instance and reference to any Party shall be deemed to include such Party’s successors, administrators, trustees, permitted assigns or liquidators, as the case may be.
The expiration or termination of this Agreement shall not affect such provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the applicable clauses do not expressly provide for such continued effect.
Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or re-enacted from time to time.
Any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be.
Should this Agreement be signed on a date that results in the use of any tenses herein being inappropriate, the terms shall be read in the appropriate tense.
2. INTRODUCTION OF SERVICE
Access to www via the Go Connect Network, wired or wireless, referred to “the service or this service”, subject to the full terms and conditions as contained in this document.
These terms and conditions may be altered from time to time without notice, client responsible to revisit these terms and conditions from time to time to familiarize with content by using this service, you agree with the full terms and conditions as set out.
3. CONDITIONS OF USE
The service provider agrees to provide the client access to the service as subscribed to on the full terms and conditions of this agreement. By using the service, you agree that you will not circumvent the user authentication process and service speed limiters or attempt to access the service provider’s network. Should the client fail to comply with the full terms and conditions of this agreement and/or breach any of the provisions specified, the client agrees to pay the service provider, on demand all costs, loss or damages incurred or suffered by the service provider as a result of such breach.
4. SERVICE AVAILABILITY
The service provider will use the best possible endeavours to ensure that the service is available at all times. The client however indemnifies the service provider from any losses whatsoever, be it loss of business information, loss of data or any other direct or indirect financial losses resulting from unavailability or interruption of the service regardless of whether such a claim is based on breach of contract, intentional/negligent breach of duty of care that inflicts loss or harm that triggers legal liability, implied warranties or even if the service provider or its employees were negligent.
5. COMMUNICATION WITH THE SERVICE PROVIDER AND STAFF
Clients can be held accountable for their conduct towards the staff of Go Connect, including conduct pertaining to allegations or malicious conduct directed towards Go Connect or its staff.
Any abusive behaviour including but not limited to threats, offensive language, aggressive conduct or any type of intimidation on a public forum directed at Go Connect or its staff will not be tolerated. Should such conduct occur, Go Connect reserves the right to suspend or terminate all services to a client with immediate effect.
Any client that uses public platforms such as forums or social media to spread false allegations, defamation or cause any action that diminish the reputation or public perception of Go Connect could have their services suspended or terminated with immediate effect. Go Connect also reserves the right to institute appropriate action against such a client to remedy any such perception.
6. SECURITY & PRIVACY
Go Connect reserves the right to intercept and monitor all usage and flow of communication through the service provided and take any other action required to ensure that the security and reliability of its network is not compromised.
All customer information required for providing the service including personal information such as address, telephone numbers and banking details will be kept in the strictest confidence by Go Connect and will not be distributed or sold to third parties.
The client may not use the service of Go Connect in any way that can compromise the security of its
network and may not tamper with the network or service in any way.
The client is solely responsible for the protection of their data on any personal computing devices (Computers, Laptops, Tablets, Smartphones) when using the Go Connect service. Devices should be adequately protected with the required anti-virus, spyware, firewall and encryption where required. Go Connect cannot be held responsible for any breach of security that occurs on client devices.
The client may not use the service provided by Go Connect for any illegal or unlawful activity.
This includes (but is not limited to) gathering or email addresses or names for political, commercial, charitable or any other use as well as gathering personal information of third parties without their consent. In addition, the client may not violate or allow the violation the privacy of any person or attempt to gain unauthorised access to the Go Connect network or any other network by hacking, phishing, password mining or any other action that compromises the privacy of any person or network.
If any client is found to engage in any of the above actions, Go Connect reserves the right, without prejudice to any other rights to without notice and immediate effect, suspend or terminate any client service and/or agreement without refunding any paid service as any such action is deemed a breach of contract. Furthermore, Go Connect reserves the right to invoice the client with any costs incurred inclusive of bandwidth, administrative fees, possible downtime caused and any other costs incurred to rectify the breach of security. Although the client’s personal information is protected by a confidentiality clause, client information may be made available to any person or entity affected by these actions.
Go Connect does not keep a record of any passwords to access client premises Wi-Fi routers. It is the responsibility of the client to ensure that access to premises equipment is secured by not providing outside parties with the access code to connect to these routers.
7. SUBSCRIPTION OPTIONS AND NOTICE PERIODS
Business Fibre ISP services rendered by Go Connect are rendered on a twenty-four (24) month contract of agreement, in accordance with the package selected by the specific client.
Should a client opt to cancel the agreement at any time, the client is obliged to give Go Connect two (2) calendar months’ written notice. This will not conclude the agreement until Go Connect has accepted cancellation based on agreement of term left within the contract. The proposed cancellation by the client, will mean the balance or remainder thereof this contract agreement is payable by you the client. The duration of this agreement would be supplied to you in the form of a final invoice. Payment for the final invoice would constitute the acceptance of the two (2) calendar month notice.
8. BREACH OF CONTRACT
The following conduct will constitute breach of contract by the subscriber
Using the internet service for any illegal activities.
Bypassing any authentication methods and/or speed or data limitation methods used by the service provider.
Accessing or attempting to access any part of the service provider’s network infrastructure.
Failing to make payment for provision of services within the stipulated time frame.
Abusive behaviour including but not limited to threats, offensive language, aggressive conduct or any type of intimidation on a public forum directed at Go Connect or its staff.
Where a client is in breach of contract, Go Connect reserves the right to cancel any subscription agreement with the client by giving 24 hours’ notice of cancellation of services. In addition to terminating an account, the service provider can take any action deemed necessary to collect any monies outstanding from the subscriber in lieu of his subscription agreement and may collect all equipment deemed part of the subscription agreement from the premises of the subscriber. Failure by the subscriber to allow access to the service provider to remove the CPE device from the subscription address may result in legal action to remedy the situation.
9. REFUNDS AND HANDLING FEES
All installation fees and subscription fees are payable in advance. When a client requests an installation the service provider will invoice the requested work and payment must be received prior to scheduling the requested work. The following stipulated terms will be in effect depending on the matter that arises.
Cancellation of installation by the Client
Should a client have requested an installation and payment have been received it will be deemed a binding agreement between the client and the service provider to undertake the installation and provide the service as selected by the client. Where a client then decides to cancel the installation (when installation has not taken place) the service provider will refund the client for the equipment and subscription paid less a 15% (fifteen percent) administration fee.
Should the client cancel the service after the installation was completed, no refund will be made to client for the installation undertaken. Where such installation was part of a subsidised subscriber agreement, the service provider will also take possession of the CPE device as per normal cancellation of subsidised agreements.
Cancellation of installation by Service Provider
Where an installation was paid for by a client and subsequently the service provider determines that service cannot be provided to a client as a result of the client falling outside the service provider’s coverage area or other factors such as poor reception area will hinder a stable service to the client the service provider will deem the subscription agreement as null and void and will refund the client the full amount received without penalty. No refund will be made by the service provider for any bank charges billed to the client.
Payments received in lieu of Internet installations and/or monthly subscriptions that is received by way of a cash deposit to the bank will attract bank charges. Should the client request cancellation and refund of said deposit, Go Connect will refund the client the net amount deposited less bank charges relating to the transaction in addition to the 15% administration fee.
10. SERVICE PROVIDERS’ RIGHT FOR COLLECTION OF SUBSCRIPTIONS
Should a matter arise where the service provider billed an amount less than the agreed subscription fee the service provider reserves the right to bill the client for any amount that should have been billed as per the subscriber agreement. The service provider does not give up its rights for the collection of the amount that has become in arrears as a result of such an error or omission. The client undertakes to make payment of any such arrear amount that resulted from incorrect billing by the service provider notwithstanding payment of the revised subscription as per the original subscription agreement which will become due on the next billing cycle.
11. SUSPENSION OF SERVICES
Where a subscriber fails to make payment on the date of the subscription fee becoming due, the service provider has the right to suspend the service to any subscriber without providing further notice. All subscriptions are payable in advance and payment for services for the month is payable on or before the 1st day of the month for the service to be delivered in the forthcoming month. Where a client has signed a debit order with the service provider and the debit order is not honoured by the subscriber’s bank, the account will be deemed not paid and will be suspended without notice to the subscriber.
12. RECONNECTION FEES
Where a subscriber’s service has been suspended due to late or non-payment before the 1st of the month the service provider will bill a reconnection fee of R200.00 inclusive of VAT to the account of the subscriber. The subscriber must pay this reconnection fee as well as the normal subscription amount and any other fees such as interest before the account will be re-activated. At present the service provider allows a grace period up to the 7th day of the month before suspending accounts. This grace period can be revised at any time without notification.
All related subscription fees and any other penalty fees not paid on due date by the subscriber will be subject to interest payable at a rate of 1.25% per month.
13. REDUCED SUBSCRIPTIONS IN PROMOTIONAL PERIODS
From time to time the service provider may offer discounted subscription and/or installation fees as a promotion for new clients.
Notwithstanding the prices offered in these promotional periods, subscribers remain bound by their original subscription agreements and the rate of subscriptions as contained in said agreements. Existing subscribers will not automatically qualify for the reduced subscriptions and in no way will such promotions constitute a change in the original subscriber agreement. Go Connect reserves the right to offer promotional subscription periods without notification to existing subscribers nor is Go Connect obliged to offer these reduced subscriptions to existing subscribers.
In the event of a dispute arising out of this agreement, the Seller consents to the jurisdiction of the Magistrates Court in regard to any proceedings which may be instituted. The Purchaser shall, however, be entitled to proceed in any division of the Supreme Court having jurisdiction should it so elect.
15. NOTICES AND DOMICILIA
The Parties select as their respective domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this Agreement, the following addresses – THE SERVICE PROVIDER chooses its domicilium citandi et executandi at 36 Zenith Rd, Solheim, Germiston, 1401.
THE CLIENT chooses its domicilium citandi et executandi at the address inserted on the application form duly competed by the client, or such other address or telefax number as may be substituted by notice given as required. Each of the Parties will be entitled from time to time to vary its domicilium by written notice to the other to any other address within the Republic of South Africa which is not a post office box or poste restante.
Any notice addressed to a Party at its physical or postal address will be sent by prepaid registered post, or delivered by hand, sent by telefax, or sent by email.
A notice will be presumed, unless the contrary is proved, to have been given – if posted by prepaid registered post, 5 (five) days after the date of posting thereof; if hand delivered during business hours on a business day, on the day of delivery; if sent by telefax or email, on the first business day following the date of sending of such telefax or email.
16. EFFECT OF INVALID OR UNENFORCEABLE CLAUSES
If any provision of this agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this agreement shall continue to be valid as to its other provisions and the remainder of the affected provision, unless it can be concluded from the circumstances that, in the absence of the provision found to be null and void, the Parties would not have concluded this agreement. The Parties shall use all reasonable efforts to replace all provisions found to be null and void by provisions that are valid under the applicable law and come closest to their original intention.
17. ENTIRE AGREEMENT
This agreement sets out the entire agreement between the Parties. No Party has entered into this agreement in reliance upon any representation, warranty or undertaking of the other Party that is not expressly set out or referred to in this agreement. This clause shall not exclude any liability for fraudulent misrepresentation. This agreement supersedes any previous agreement or understanding relating to its subject matter; This agreement may not be varied except by an agreement of the Parties and reduced to writing.
No waiver of any of the terms and conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
No indulgences allowed by the Purchaser to the Seller from time to time in respect of the latter’s obligations herein shall prejudice the Purchaser in any way from subsequently strictly enforcing any term, condition or provision of this agreement and / or no delay or failure on the part of the Purchaser in the exercise of any right herein shall operate as a waiver thereof and no waiver whatsoever shall be valid unless set out in writing and signed by the Seller and then only to the extent therein expressly set forth.
19. LEGAL COSTS AS A RESULT OF BREACH
If as a result of the breach of any one of the provision of this Agreement by any of the Parties to this Agreement, then the Party so in breach will be liable for all legal costs and disbursements so incurred on a scale as between Attorney and Client, on the High Court Scale.
20. LANGUAGE OF AGREEMENT
This agreement has been negotiated and concluded in English. It may be translated into any other language for practical purposes, but the version shall prevail in the event of any doubt.
21. APPLICABLE LAW
The proper law of this agreement is the law of the Republic of South Africa, and accordingly any dispute relating to this agreement, including any dispute about its validity, existence, interpretation, rectification, breach or termination or any dispute about any matter arising out of this agreement, its avoidance, interpretation, rectification, breach or termination shall be determined according to the laws of the Republic of South Africa.
By virtue of the client signature duly appended to the Provider’s Application form, the client agrees to be bound by these said terms and conditions recorded herein.