1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following expressions, words or phrases, shall bear the meanings assigned to them below:
1.1.1. “Agreement” shall mean the agreement as set out herein together with the Subscriber order form.
1.1.2. “Commencement Date” shall mean the date of activation of the Services.
1.1.3. “Effective Date” shall mean the date of signature of this Agreement by the Supplier.
1.1.4. “Early Termination Penalty” shall mean 10% (ten percent) of the remaining Agreement term’s monthly fees;
1.1.5. “Equipment” shall mean the voice and/or data apparatus, together with all additions or accessories thereto including hardware, software and intellectual property, as specified in this Agreement and its schedules, if applicable.
1.1.6. “Monthly Access Charge” shall mean the monthly charge for being connected to the System as specified in the Tariffs.
1.1.7. “Pre-paid Basis” shall mean monies paid in advance for services rendered by the Supplier.
1.1.8. “Services” shall mean the basic communication service providing speech and data communication via the system and any other such service the Supplier may at its option choose to make available to the Subscriber.
1.1.9. “System” shall mean the radio interface, fixed line, or any other means by which telecommunication services are provided by the Supplier.
1.1.10. “Subscriber” shall mean the entity/person identified as such on the front page of the Subscriber Agreement;
1.1.11. “Supplier” shall mean the entity identified as such on the front page of the Subscriber Agreement;
1.1.12. “Tariff” shall mean the tariff of charges as published and amended from time to time by the Supplier in its sole discretion.
1.2. Words that have not been defined in this Agreement but have a generally and commonly understood meaning and context in the Information Technology and Telecommunications sector will be interpreted as having that meaning and context.
2. CONNECTION TO THE SYSTEM AND PROVISIONS OF THE SERVICE
2.1. Subscriber acknowledges that he will be liable for all charges for the Services rendered through the system at the Tariffs as specified in the Agreement, the Subscriber acknowledges and agrees that the Supplier can only guarantee the Service if the Equipment, including but not limited to telephone sets, modems, routers, switches and hubs, connected to the System is approved by the Supplier.
3.1. Data Services
3.1.1. All monthly payments to be made in terms of this Agreement shall be made by the Subscriber to the Supplier by way of Debit Order on the 1st day of the month, predating the month in which the Service is to be rendered;
3.1.2. All top up payments to be made via the website portal as provided for on the Subscriber Order Form;
3.2. Voice Services
3.2.1. All monthly payments to be made in terms of this Agreement shall be made by the Subscriber to the Supplier by way of Debit Order on the 1st day of the month, postdating the month in which the Services was rendered;
3.2.2. The Supplier reserves the right to utilize the deposit as indicated on the Subscriber Order Form to settle any amounts overdue by the Subscriber to the Supplier;
3.3. The Supplier reserves the right to suspend, withdraw all or part of any Service at any time should any debit order be returned unpaid or stopped or should any charge card account or credit card account of the Subscriber be rejected for whatsoever reason.
3.4. Where the Supplier has suspended Services in terms of above the Supplier may require the Subscriber to pay a reconnection fee in advance as a condition to making the Service available again.
4.1. Subject at all times to the provisions of clause 9 (termination clause), this Agreement shall commence on the Commencement date and shall continue for 24 (twenty-four) months.
4.2. Notwithstanding 4.1. above the Subscriber may cancel this Agreement at any time by giving the Supplier 60 (sixty) day’s written notice.
5. EARLY TERMINATION COSTS
5.1 . The termination fee shall be calculated on the outstanding fees and charges for each of the Terminating Services as at the Termination Date and will be determined as follows:
5.1.1 in the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, the Customer shall be liable for the lower of the actual costs incurred by BCSNet in implementing the Service or the “NRC”, plus 3 (three) months of the MRC;
5.1.2 In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Contract Term for the Terminating Services is 12 (twelve) months or less; 20% of the fees and charges for the remainder of the Contract Term of the Terminating Services;
5.1.3 In the event that the Terminating Services are terminating subsequent to the Commencement Date thereof and the Contract Term for the Terminating Services is greater than 12 (twelve) months; 20% of the fees and charges for the Terminating Services for the remainder of the first 12 (twelve) months (if any) and 10% of the fees and charges for the Terminating Services for each month thereafter.
5.2 The amounts referred to in clause 17.1 above shall be in addition to all fees and charges payable in the ordinary course in respect of the applicable COF for the Terminating Services, plus any other Services that continue unchanged, as at the Termination Date.
6. INSTALLATION OF EQUIPMENT
6.1. The Subscriber shall allow the Supplier or its approved representative to carry out such work at the Subscriber’s premises as is necessary to effect implementation of the Service and indemnifies, the Suppliers, its directors, employees, agents or approved representatives against all damages, costs and expenses incurred in performing such implementation and as a result of such implementation.
6.2. Should the Equipment installed at the Subscribers premises be damaged, lost, stolen, un-operational or undergoing repair, the Subscriber agrees that this Agreement is not conditional upon such availability or operation of the Equipment and this Agreement shall continue in full force and effect and the Subscriber shall continue to pay all amounts due in terms hereof.
6.3. The Subscriber shall provide the necessary space, electricity supply and environmental conditions required for the Equipment; all at the Subscriber’s cost.
6.4. Nothing in the Agreement confers, or shall be deemed to confer, on the Subscriber any rights in, or license to use, any intellectual property of the Supplier.
6.5. The Subscriber accepts that all copyright and other intellectual property rights in specifications, computer programs, manuals and other material written provided by The Supplier for, or in connection with, the services shall remain vested in the Supplier. The Subscriber shall make no copies of manuals, documentation, computer programs etc without the prior written consent of The Supplier.
7. LIMITATION OF LIABILITY
7.1. The Supplier gives no warranties, representations, guarantees or undertakings express or implied, concerning the Equipment and/or the Services.
7.2. Neither the Supplier nor its holding company, nor any of its subsidiaries, subcontractors, employees, affiliates or agents shall be liable or responsible for any loss or damage of whatsoever nature or howsoever arising in consequence of any act or omission by the Supplier, its holding company, its subsidiaries, sub-contractors, employees, affiliates or agents in the supply or failure of the Equipment and/or the Services or otherwise, irrespective of whether such loss or damage is attributable to the fault or negligence of the Supplier, its holding company, its subsidiaries, sub-contractors, employees, affiliates or agents.
7.3. The Supplier shall not be liable (including liability for negligence) for any loss or damage or injury to the Subscriber whatsoever no matter when or how, arising out to the provision of the Services or otherwise, whether direct or indirect, consequential or contingent and whether foreseeable or not and in particular not be liable for financial loss of profits, contract, business anticipated, savings use or goodwill.
7.4. The Subscriber acknowledges and agrees that the service quality and coverage available to the Subscriber shall be limited to that provided by the data, fixed line, wireless or GSM Network Providers and the services may from time to time be adversely affected by physical features such as buildings and underpass as well as atmospheric conditions and other causes of interference.
7.5. Although all reasonable effort is made, the Supplier makes no guarantee that services will be rendered and transmitted error free or without virus, and further that the services are secure from unlawful access.
8. USE OF THE SERVICE, STATUTORY AND REGULATORY PROVISIONS AND SUBSCRIBER APPARATUS
8.1 The Subscriber shall at all times comply with all statutory or other regulatory provisions relating to wireless telegraphy and telecommunications Services applying to the provision and use of the services, from to time. In addition, the Subscriber shall:
8.1.1. Comply with any instructions issued by The Supplier which concern the Subscriber’s use of the services or connected matters; and
8.1.2. Provide the Supplier with all such necessary information that the Supplier may reasonably require; and
8.1.3. Only use apparatus which is approved for use with the system by the Supplier in writing.
8.2. The Supplier warrants that it is a registered service provider who is licensed with the relevant South African authorities to render all the Services as outlined in this Agreement.
9.1. The Supplier may terminate this Agreement by notice if;
9.1.1. Any license to operate or use the system is revoke, terminated or modified for any reason either in whole or in part; or
9.1.2. The Subscriber is in breach of any of the terms of this Agreement and has failed to remedy the breach within 7 (seven) days of written notice by the Supplier; or
9.1.3. a receiver or liquidator is appointed in relation to the Subscriber or an application for the sequestration or the winding-up of the Subscriber is made or any warrant of execution is issued against the Subscriber.
9.1.4. If any license to operate or use the system is revoked, terminated or modified for any reason either in whole or in part.
9.2. It is agreed that the Subscriber may cancel this Agreement by giving 7 (seven) days prior written notice if the Supplier can no longer perform its duties under this Agreement by way of Legislation being passed by an Act of Parliament or a court ruling, after final appeals have been heard ordering the termination of the services.
10. ASSIGNMENT AND CESSION
The Subscriber shall not cede, assign, transfer, encumber or delegate any of its rights or obligations in terms of this Agreement to any third party without The Supplier’s prior written consent.
11. VARIATION OF CHARGES
The Supplier may vary all or any of its charges (including but not limited to the charges described in the Subscriber Order Form of this Agreement, any charges in respect of benefits provided to Subscribers and in respect of value added services) by publishing an amended tariff, such variation to take effect after 30 (thirty) days written notice.