BSC ICT Group Terms and Conditions
Registration – Hosting – Content
Definitions “Client” includes the person purchasing the services or any agent or representative thereof. “Registrant” includes the person applying for a domain name or any party acting on their behalf. “Registry” means the relevant domain names Registry. “Services” means domain name registration, website hosting, email and any other service or facility provided by the BSC ICT Group to the client. “Server” means the computer server equipment operated by the BSC ICT Group in connection with the provision of the Services. “Website” means the area on the Server allocated by the BSC ICT Group to the client for use by the client as a site on the Internet. “BSC ICT Group” includes any party acting on The BSC ICT Group’s explicit instructions. BSC ICT Group will be referred to as BSC in short on this and all our pages.
Domain Name Registration
BSC is not a domain registrant. Instead, we register domains for our clients via a third party. We do not have any control over the availability of new domains. In registering domains, we may use information that our client has provided to us, such as the business profile. It is the client’s responsibility to supply us with the correct information. When purchasing a South African domain, such as .co.za or .com, it is also the client’s responsibility to ensure that the domain name has a close relationship to their name or business name. Most domains are registered for 1 year. Invoice terms for domain name registrations and renewals are paid on registration. The cost of domain name registration is non‐refundable and is paid annually. We inform our clients during the first week of November with a renewal notice payable before 15th December annually for the following annual cycle starting on 1st January for the new year. Domains not renewed will be suspended and eventually terminated. Upon receiving this notification, the client must advise us whether or not they would like to renew the domain. If the client advises us to renew, we will do so and send an invoice. If the client do not respond to any of our contact methods we reserve the right to suspend, and eventually terminate the domain. Re-Connection fees are payable for all domains re-connected after suspension.
BSC is not responsible for any downtime, loss or damage suffered as a result of non‐renewal or expiry of a domain name. It is the responsibility of the client to advise us to renew before the end of November, annually. You must also keep your contact details up to date so that we can advise you in a timely manner.
BSC contact details will be listed as the domain registrant because the domain was registered under our account with the third party supplier. However, we recognize the client as the owner of the domain. If at any time the client wants to transfer the domain to another registrant, they can do so. However, all accounts to BSC must be paid in full before we will facilitate such a transfer. Upon registration, we send the client the information necessary to manage the domain if they need to.
A domain will be suspended if ANY fees are due on the account. ANY fees include service or support fees. Suspended domains carries a re-connection fee payable before the domain services are re-instated. Re-instated domains takes up to 48 hours for all services to re-connect to the servers. IF domains are not re-instated within 7 days the termination rule applies. Terminated domains carries a re-registration FEE.
We will endeavor to avoid down‐time. If down‐time is required for the purposes of maintenance or repair, we will inform the client in a timely manner. Unforeseen circumstances may result in service down‐time. If this occurs, we will use our best endeavors to notify the client within 48 hours. We reserve the right to end the service if the account is unpaid. Please see ‘Termination’ for more information. BSC subscribes to Cloudbric who offers extra security services in the event of Hacking, clients have the option to include the additional services at an additional fee. BSC will not accept any liability for security of the client contents as Cloubric is offered on all our platforms and services.
The client is responsible for the content and data stored in their web hosting space. All content and data belongs to the client unless BSC provided said content then content copyright belongs to BSC. All licenses, consents, authorizations and approval are the responsibility of the client. Intellectual property rights belong with the client, unless BSC created such content. Copyright belongs with the client, unless BSC provided content which will belong to BSC. We will respect the privacy of our client’s information and will endeavor to protect their confidentiality to our best ability. Both the client (via single FTP on request) and the BSC Group will have access to the content and data at all times.
BSC may suspend or terminate access to the hosting services if we deem it necessary. BSC will inform the client of the said termination with 30 days’ notice. Hosting packages will be reviewed annually before renewal, BSC reserves the right not to renew any hosting services without reason. In the event of the termination of the hosting package BSC will allow access to the domain via FTP services so the clients NEW service provider can copy all content from the server. This access will be available for a period up to 7 days or one week. Relating to fees; If ANY fees are due on the account, the services will be suspended if we become aware of any unlawful content or activity within the hosting space. If any services fees are outstanding or not paid within the prescribe period of notification, we reserve the right to suspend and ultimately terminate the domain. We may also terminate or suspend the services if the client’s account becomes overdue. Our hosting services are provided on seven day terms. If an account remains unpaid after 7 days, we will send the client a notification of suspension. If the account is not paid in a timely manner, we will end the hosting service. We will put a notice on the website saying that it is currently unavailable. We will keep the data on file for 30 days. After 30 days (1 month), it will be deleted. BSC will not be responsible for any loss or damage to the client or any other party as a result of such suspension or termination. If BSC is informed of illegal content stored under a domain name or hosting space, we will immediately request the client remove the data. If the data is not removed within 24 hours, BSC will be entitled to immediately suspend the website and terminate this agreement. Illegal content will not be stored. We will put a notice on the website saying that it is currently unavailable. We will keep data – other than illegal content – on file for 30 days. After 1 month, it will be deleted. BSC is not responsible, nor will we backup a client’s domain unless requested do so in writing. Client remains responsible to backup their own content and data via REQUESTED FTP Access.
The client agrees to indemnify and hold harmless BSC and its employees, contractors, agents and directors in full against any and all liabilities, claims, losses, damages, penalties, actions, judgments, suits, costs or expenses of any kind arising under this agreement, including from the use of any intellectual property rights of any third party and the registration or use of domain names. Limitation of Liability The client will not, under any circumstances, seek to hold BSC responsible or liable for any loss or damage whatsoever either under this agreement or in relation to the provision of the hosting and domain services, including but not limited to: (a) Loss of profits arising out of, or in connection with, this agreement; (b) Use, misuse, suspension and or loss of any client domain registrations; (c) Interruption to the business and operations of the client; (d) Access delays or interruptions to any website accessed by registered domain name of the client; (e) Non‐delivery, mis‐delivery, corruption, destruction, or modification of data and or information; (f) Events beyond the control of BSC; and or (g) Processing of an application for domain name registration. BSC shall not, under any circumstances, be liable for any acts or omissions relating to domain name registration. This applies to the actions of the client and any third parties, including domain name registration suppliers. In using our hosting services, the client agrees to these limitations of liability.
The client acknowledges that all rules and regulations that apply to domain name registration must be strictly construed and applied. The client accepts sole responsibility for ensuring compliance with all relevant laws, rules and regulations in this respect. The client agrees that it is solely liable for ensuring that all client details on registered domain records remain current. BSC will not be held liable for any loss or damage arising from interruption to the hosting services that occur as a result of client non‐compliance with the matters referred to above, including obsolete contact details. BSC will not reimburse or otherwise compensate the client for payments made to third parties for domain name renewals or transfers. BSC standard hosting support times are between 9:00 am and 4:00 pm Monday to Friday, CAT (Central African Time) in South Africa. BSC standard hosting support includes ensuring that the server is online whenever reasonably possible and that domains hosted by BSC are visible on the internet.
Advance Invoice Payment (December & January)
Annually, On the 15th Day of November the client will receive an invoice for the upcoming months of December & January. This invoice will include the subscription payments for the months of December & January. This payment period covers the client during the holiday period when offices will closed for business.
Annual Domain Hosting Payment
The client agrees to pay annual hosting fees on / before 31st July annually. Failure to pay the annual hosting fee will result in suspension and eventually termination of the domain.
Annual Domain Renewal Payment
The client agrees to pay annual domain renewal fees on / before 15 December annually. Failure to pay the annual fee will result in suspension and eventually termination of the domain.
BSC will review each domain before annual hosting renewal and will inform the client of said renewal or cancellation of services. The client may cancel an order for web hosting services without reason within seven days from the date of the order by written notice to BSC. Upon receipt of such notice BSC shall refund any monies paid by the client in full within 30 days of the notice. This does not apply to domain name registration services. Domain names are non‐refundable. Upon receipt of a cancellation notice or otherwise upon the expiry or termination of this agreement BSC will be entitled to delete and not retain any records, data, programs or other content.
The client may lodge a complaint under this agreement to BSC by phone, mail or email.
This agreement shall be governed by and construed in accordance with South African Law, and the parties hereto hereby submit to the non‐exclusive jurisdiction of South African courts.
BSC ICT Group email@example.com
National Contact Centre – 087 012 5373
New Accounts – 013 312 0000
VOIP Terms & Conditions
Terms & Conditions
Entered into by and between BSC ICT Group (BSC), (the Service Provider) and The Customer. This document applies to all BSC subscribers and can not be customized.
1.1 BSC ICT Group
A company with limited liability duly incorporated in terms of the Companies Act of South Africa, 71 of 2008, hereinafter referred to as “the Service Provider””BSC”; and
1.2 “The Customer” with the details as submitted via the Service Provider’s website by the Customer, or as otherwise submitted by the Customer to the Service Provider in the form and on the documents as prescribed by the Service Provider from time to time.
2.1 In this Agreement, unless inconsistent with or otherwise indicated by the context, the following words and expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:
2.1.1 “Ancillary Equipment” shall include the following:
- Voice over Internet Protocol (VoIP) phones; and
- Network routers, switches and modems
Shall mean the legal governing body, which is relevant in the specific instance. (Examples would include the Independent Communications Authority of South Africa (“ICASA”).
2.1.3 “Customer Order Form”
Shall mean any record and/or document in the manner and form as prescribed by the Service Provider from time to time, with the purpose of recording the Customer’s order and shall be deemed instruction the Service Provider of the services and goods required by the Customer on the Customer’s special insistence and request, whether such order is to be duly completed manually, digitally, telephonically or otherwise by the Customer. This definition specifically includes “data message” as defined in Chapter 1 of the ECT.
2.1.4 “ECT” Shall mean the Electronic Communications and Transactions Act, 25 of 2002.
2.1.5 “Good Industry Practice”
Shall mean the exercise of the degree of skill, care and diligence, which would reasonably and ordinarily be expected from a skilled and experienced person engaging in services in the nature of the Services.
2.1.6 “Service Fees”
Shall mean the monies due to the Service Provider by the Customer as published on the Service Provider’s website (www.bscgroup.co.za), and shall include the initial installation and set- up charge and any other introductory or commencement charges, and/or as otherwise communicated to the Customer in writing from time to time, and which may be amended by the Service Provider from time to time upon notice to the Customer.
Shall mean any one of the following or both the provision of cloud-based (hosted) PBX and Voice over IP services.
Shall include a handwritten signature or mark; an electronic signature as defined in the ECT, which shall include but not be limited to any method used to identify the person and to indicate the person’s approval of the information; any biometric signature including but not limited to any method used in respect of a voice automated transactions to identify the person and to indicate the person’s approval of the information.
2.1.9 “Signature Date”
Shall mean the date on which the Service Provider receives the signed agreement from the Customer.
Shall include but not be limited to hand written and data messages. Any requirement in this Agreement that a document or information must be in writing is met if the document or information is in the form of a data message; and accessible in a manner usable for subsequent reference.
3.1 Unless the context indicates a contrary intention, any reference to:
3.1.1 any gender shall include a reference to the other genders, and 3.1.2 the singular shall include the plural and vice versa, and
3.1.3 a natural person shall include a reference to a legal person/juristic entity, whether incorporated or unincorporated and vice versa.
3.2 Paragraph headings are inserted for reference purposes only, and shall not modify or vary the interpretation of this Agreement, or any paragraph or provision thereof, nor shall same be used in interpreting or construing the tenor or import of this Agreement, or any provision thereof.
3.3 Words and phrases defined in any legislation relevant to the Business and the transactions herein set out, shall bear the meanings ascribed thereto when referred to in this Agreement.
3.4 Where the consent of any Party is required for any purpose, same shall, unless the context indicates otherwise:
3.4.1 refer to the prior written consent of such Party (“the grantor”); and
3.4.2 the consent shall not be unreasonably withheld; and
3.4.3 in the event of the refusal or withholding of such consent, the onus shall be on the Party seeking same(“the grantee”) to prove that the refusal or withholding of the consent was unreasonable in all the circumstances; and
3.4.4 the grantee shall not be entitled to disregard such withholding of consent until it has satisfied such onus of proof of unreasonableness; and
3.4.5 reference to “consent” shall be deemed to include a reference to any consent, approval or permission which may be required of the grantor.
3.5 Where in any definition rights and/or obligations are conferred and/or imposed on any party, same shall be regarded and effect given thereto as a substantive provision of this Agreement.
3.6 For the sake of convenience a reference to any “provision” or “provisions” shall be a reference to any provision, term, condition, obligation, right, covenant and undertaking in this Agreement.
3.7 The annexures, addenda and documents attached hereto (“the addenda”) form an integral part of this Agreement as if specifically incorporated herein. In the event of any conflict between the main part of this Agreement and the addenda, preference shall be given to the main part of this Agreement and the provisions shall be construed and interpreted in such a way as to give effect to the main part of this Agreement.
3.8 Where any reference is made to a number of days for any purpose, the calculation shall exclude the first day, and shall include the last day; and
3.8.1 any reference to a number of days shall be a reference to a continuous period, and shall not be deemed to be a reference to Business Days unless the context indicates otherwise; and
3.8.2 any reference to months shall be a reference to calendar months as a continuous period.
3.9 Where there is a conflict between any amounts referred to in numerals and words, the amount referred to in words shall prevail.
3.10 The contra preferentum rule whereby this Agreement shall be construed against the Party, at whose instance same has been drawn, or against the Party in whose favour a provision is drafted, is expressly excluded.
3.11 Where any word, phrase or expression is followed by the words “and”, and “and/or” or “or”, or “including”, the use of such words shall not be deemed to restrict the meaning of the relevant preceding word, phrase or expression.
3.12 The eiusdem generis rule shall not apply, and accordingly where any provision of this Agreement is followed by a specific example or reference is made to any specific matter, such reference shall not affect the generality of the foregoing provision.
4.1 WHEREAS the Service Provider provides voice over IP and related telecom services; and
4.2 WHEREAS the Customer is desirous to procure the services of the Service Provider;
NOW THEREFORE the Parties agree as follows:
The provisions of the ECT shall be applicable to this Agreement and this Agreement shall be construed in such a way as to give effect to the definitions and enable and provisions of the Act.
- COMMENCEMENT AND DURATION
This Agreement shall commence on the signature date and continue thereafter subject to either Party’s right to cancel the Agreement in terms of clause 14 hereof.
- SERVICES AND SERVICE PROVIDER UNDERTAKINGS
7.1 The Service Provider shall provide the Services and Ancillary Equipment and/or Products to the Customer in accordance with the terms and conditions hereof.
7.2 The Services shall commence on the date(s) stated in the Customer Order Form and will continue to be provided thereafter for the duration of the Agreement.
7.3 The Service Provider undertakes to render the Services in accordance with Good Industry Practice.
7.4 The Service Provider shall further perform the Services in a proper and professional manner by suitably qualified personnel.
7.5 The Service Provider undertakes to use its reasonable endeavours to keep the Services available at all times.
7.6 Unless otherwise agreed by the Parties in writing, the Service Provider shall not provide any services other than the Services as defined herein and listed in the Customer Order Form.
- EQUIPMENT, DELIVERY AND RISK
8.1 Risk shall pass to the Customer upon delivery of the equipment, notwithstanding the equipment being the property of Customer or remaining the property of the Service Provider, as the case may be in the circumstances.
8.2 Delivery of equipment takes place upon collection, either by the Client; Client’s designated Courier Company or a courier company designated by BSC at the Client’s request. In instances where installation is necessary by BSC’s technicians/approved technicians, delivery takes place upon completion of installation.
8.3 The Service Provider uses external service providers for the transportation and delivery of goods, the cost of which shall be for the Customer’s account.
8.4 The company delivery notes signed or countersigned by the customer or the employee of the customer shall for all purposes be deemed to be accurate in all respects and binding on the customer.
8.5 The Service Provider may require the Customer to make the equipment for inspection at a time and place to be arranged by the Service Provider or its nominee. Should The Service Provider accept the equipment for repairs and maintenance it shall be deemed to do so as agent on behalf of the manufacturer or local supplier of the equipment and The Service Provider shall not be liable for any loss, damage, destruction, theft or negligent workmanship howsoever or by whomsoever caused.
8.6 Should the Customer fail to pay any monies due in respect of equipment or accessories purchased, leased or loaned from The Service Provider then the Service Provider shall be entitled without prejudice to any other rights it may have at law forthwith and without notice to suspend, interrupt or disconnect the Services or any part thereof.
8.7 Should the Service Provider borrow equipment to the Customer whilst the Customer’s owned or leased equipment is being repaired, then the Customer shall upon demand return the equipment to the Service Provider at the Customer’s own cost. Should the Customer fail to return the equipment to the Service Provider when asked to, then the Service Provider shall be entitled to charge and recover from the Customer (who shall pay such charges upon demand) a rental of R1 000 (one thousand rand) per day reckoned from the due date of return or demand, whichever is the earlier, until the date that the loaned equipment is returned to the Service Provider. The provisions of this Agreement shall mutatis mutandis apply to such loaned equipment and its use.
- CUSTOMER’S UNDERTAKINGS AND OBLIGATIONS
9.1 The Customer agrees that it will use the Services lawfully and that it will comply with all applicable laws and with BSC s’ acceptable use policies as published on www.bscgroup.co.za.
9.2 The Customer is wholly responsible for the safety and security of their BSC VOIP account and the equipment used by them to access the BSC network and services and must put in place such safeguards as necessary to prevent unauthorised use. The Customer is responsible for all persons who use their username and password to access the service, whether authorised or not. BSC accepts no responsibility and will not be held accountable for costs incurred from the unauthorised use of a Customer’s account.
9.3 The Customer indemnifies the Service Provider and holds it harmless against any claims by third parties in respect of prohibited or unlawful activities conducted by the Customer.
9.4 The Customer shall not take any steps or fail to take any steps which directly or indirectly damages the Service Provider’s or its suppliers’ networks (or any networks interconnected to these networks) or any part thereof or impairs or precludes them (and any person with whom it interconnects or shares facilities) from being able to provide its Services in a professional manner; or constitutes an abuse of the Services
9.5 The Customer acknowledges that the Service Provider’s suppliers’ may, if it is of their reasonable opinion that the Customer is abusing the Services or using the Services unlawfully, suspend the provision of the Services without liability on the part of themselves or on the part of BSC Telecom Services.
9.6 The Customer acknowledges that the Service Provider may, if it is of the reasonable opinion that the Customer is abusing the Services or using the Services unlawfully, suspend the provision of the Services without liability on the part of the Service Provider.
9.7 The Customer warrants that information supplied by him/her/it is true and correct and acknowledges that such information is material to this Agreement. In the event that the information is not true and correct in all regards then the Service Provider shall be entitled to, immediately and without prejudice to any other rights that it may have, cancel this Agreement summarily upon 48 hours written notice.
9.8 Any subsequent changes that affect the information supplied to the Service Provider, without limiting the generality of the aforegoing but by way of example – bank account details, must be brought to the immediate attention of the Service Provider. The Customer shall give written notice to the Service Provider of any changes to the information in the manner and form as required by the Service Provider and communicated to the Customer from time to time.
10.1 In consideration of the Services provided, the Customer shall pay the Service Provider the Service Fees, on the Payment Date(s) on or before the last working day of every month, in the Currency, to its Nominated Account via electronic transfer.
10.2 In the event where the Currency is another currency that that in which the Provider normally does its business, then the exchange rate applicable to any amount due by either of the Parties to the other shall be the exchange rate between those two currencies on the date on which the amount becomes due.
10.3 Invoices in respect of the Service Fees shall be rendered monthly in arrears. Invoices shall be due and payable upon receipt.
10.4 The Service Provider may in its sole discretion, demand a deposit as security from the Customer prior to rendering the Services, which deposit shall not bear interest. The Service Provider may utilise this deposit at any time towards payment of any portion of the Service Fees or other monies due and owing to the Service Provider by the Customer.
10.5 Any accounting document provided by the Service Provider (monthly account statements, invoices, or other) shall be deemed prima facie proof of the amounts due and owing by the Customer and shall be sufficient documentary evidence to obtain judgment to that effect.
10.6 The customer is liable to pay for all calls made from his account whether authorised or unauthorised. This includes, but is not limited to, calls made from fraudulent use of the account caused by hacking or any other form of unauthorised intrusion or use.
10.7 Unless expressly otherwise agreed to in writing, all payments shall be made via electronic transfer to the Service Provider’s nominated bank account, the details of which shall be forwarded to the Customer, and shall be made free of exchange, taxes, fees and charges.
10.8 In the event of any debit order returned unpaid or should any charge or credit card of the Customer be rejected for whatever reason, then the Customer shall be liable for an administration charge as may be levied by the Service Provider in respect of each such non-payment, including any bank charges incurred by the Service Provider as a result of the non-payment.
10.9 The Customer shall not be entitled, for any reason whatsoever, to withhold payment or any part thereof of any monies due in terms hereof.
10.10 The Service Fees, as well as any other funds due by the Customer to the Service Provider, shall exclude any taxes and/or levies due as a result of a requirement by any governmental organization (which shall include but not be limited to any VAT, importation tax, withholding tax and general sales tax) and all these taxes and/or levies, shall be paid by the Customer. The Service Provider is a registered VAT vendor in terms of the Value Added Tax Act, 1991. All invoices rendered shall include VAT at the standard rate.
10.11 The Customer acknowledges and agrees that it shall be liable for the transactional cost of any third party payment system provider in respect of payment of the Service Fees by way of electronic debit order. The Customer further acknowledges and agrees that any such instruction to a third party payment system provider shall constitute a separate transaction and agreement from this Agreement.
- PRIVACY CONSENT AND CREDIT LIMIT
11.1 The Customer provides his/her/its express consent to the Service Provider to process the personal information as defined in legislation, including identity verification in terms of the RICA Act, for purposes of preventing fraud and to send the personal information to third parties in order to provide a services to the Customer, and also to send such information to foreign countries, when necessary, by electronic or other means for processing. The Customer acknowledges and understands that such countries may not have specific data privacy laws.
11.2 The Service Provider undertakes to treat the personal information confidentially and will not make disclosure thereof unless:
11.2.1 It is legally compelled to do so; and/or
11.2.2 It is in the public interest to disclose the personal information; and/or
11.2.3 The Customer has given consent thereto.
11.3 Requests for Services are subject to the Service Provider’s approval. Prior to entering into any agreement with the Customer, the Service Provider may investigate the Customer and may conduct such reasonably necessary checks to verify any information provided by the Customer. The Customer consents thereto and authorizes the Service Provider to conduct all reasonable credit checks and searches to establish his/her/its creditworthiness. The Customer agrees that the Service Provider may send and receive positive and negative information as may be required from time to time, to or from any credit bureau, government or similar agency.
11.4 The Service Provider may in its sole discretion set a credit limit in respect of the monthly Service Fees that the Customer may accrue. The Parties acknowledge that this does not constitute a credit facility in terms of section 8(3) of the National Credit Act, 34 of 2005, and no interest or charges in respect of the deferral, will accrue on the deferred amount.
11.5 The Service Provider may amend or vary this credit limit in its sole discretion from time to time, which amendment shall only take effect for the following billing period, and the Service Provider shall give the Customer 7 days’ written notice of such amendment. The Service Provider shall be entitled to suspend the Services in the event that the Customer reaches the credit limit.
- SURETY AND CO-PRINCIPAL CUSTOMER
12.1 In the event that the Customer is a juristic entity, then the natural person signing this Agreement on behalf of the Customer (the “Signatory”) hereby confirms as follows:
12.2 The Signatory binds himself/herself hereto as surety and co-principal debtor, jointly and severally, in solidium with the Customer for the due and punctual payment by the Customer to the Service Provider of all amounts payable or to become payable or to become payable in terms hereof, and for the due and faithful performance by the Customer of all the terms, covenants and stipulations imposed upon the Customer in terms of this Agreement (herein after referred to as the “Surety”);
12.3 The surety agrees and declares that all admissions and acknowledgements of indebtedness by the Customer shall be binding on the Surety, that the Service Provider shall be at liberty, without affecting its rights hereunder, to release securities and to give time to or compound or make any other arrangements with the Customer without reference to the Surety, and that in the event of liquidation, judicial management or compromise and no dividend(s) or payment(s) which the Service Provider may receive from the Customer or any other person or persons, company or companies, or from the Surety shall prejudice the rights of the Service Provider to recover from me the full extent of this Suretyship any sum which after the receipt of such dividend(s) or payment(s) may remain owing by the Customer.
12.4 The Surety declares that he/she shall not be entitled to prove any claim, either contingent or otherwise, against the Estate of the Customer in respect of any payment(s) made by him/her to the Service Provider in terms of this Suretyship, which will complete with any other claim which the Service Provider may have against the estate of the Customer, save with the consent of the Service Provider first had and obtained.
12.5 The Surety hereby agrees that the Service Provider is hereby authorised and empowered to cede, assign and transfer this Suretyship in its discretion, and on such cession his/her liability shall continue in favour of the cessionary for both the existing liability at the date of the cession and also in respect of any further liability incurred by the Customer with the cessionary arising from a breach of this Agreement;
12.6 The Surety hereby warrant that this Agreement binds the Customer in all respects and that all resolutions and signatures with regard to hereto have been taken and executed properly and should there be any breach of these warranties, the Surety shall assume all liability and every obligation to the Service Provider which this Agreement purported to impose on the Customer;
12.7 The Surety agrees that notwithstanding any part payment by him/her or his/her behalf, he/she shall have no right to any cession or action in respect of such part payment and shall not be entitled to take any action against the Customer in respect thereof unless and until the indebtedness of the Service Provider shall have been discharged in full;
12.8 The Surety agrees that no waiver or release made at any time by the Service Provider of any of its rights hereunder nor any leniency which may be granted by the Service Provider nor the failure by the Service Provider to enforce against the Surety or the Customer any of the undertakings set out in this Suretyship, shall in any way affect the validity of this Suretyship, which shall nevertheless remain in full force and effect;
12.9 For the purposes of enabling the Service Provider to exercise its rights under this Suretyship, the Surety hereby irrevocably nominate, constitute and appoint the Service Provider to be his agent, with power to sign all such documents and do all such other acts, matters and things as may be necessary to give due and proper effect to the terms of this Suretyship.
13.1 In the event that the Customer breaches any provision of this Agreement and fails to remedy such breach within 3 (three) days’ from written notice to this effect, including failure to make due payment in terms hereof, then the Service Provider shall be entitled, without prejudice to any of its other rights, to suspend the Services in whole or in part and/or to disconnect the Customer from the Services and/or render the equipment inoperable by whatever means.
13.2 In the event that the Customer fails to remedy such breach within three (3) days after receipt of notice as such, the Service Provider shall be entitled to cancel this Agreement with immediate effect and without any further notice.
The Service Provider shall be entitled to cancel this Agreement by providing the Customer with thirty (30) days prior written notice to that effect. The Customer shall be entitled to cancel this Agreement by providing the Service Provider with twenty-four (24) hour prior written notice to that effect.
- LIMITATIONS OF LIABILITY AND INDEMNIFICATIONS
15.1 The Service Provider shall not be liable to the Customer, its employees, agents or sub-contractors or any third party for any consequential, indirect, punitive, special or incidental loss or damage of whatsoever nature and howsoever arising which shall include but shall not be limited to loss of property or loss of profit, business, goodwill, revenue or anticipated savings or any costs, claims or demands of whatsoever nature and howsoever arising, whether out of breach of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability, in delict, law, contract or otherwise, whether asserted against the Service Provider or against the Customer by any third party, any Services performed or undertaken under or in connection with this Agreement, the rendering or non-rendering of the Services, their withdrawal or suspension, or otherwise.
15.2 Without limiting the provisions of clause 18.1 in any way, the Service Provider shall expressly not be liable to the Customer for:
15.2.1 loss or damage arising as a result of lost, damaged or corrupted data; and/or
15.2.2 the failure for any reason whatsoever to supply and/or deliver and/or provide installation of any hardware on a specified date; and/or
15.2.3 Porting the Customer’s phone number in accordance with its request; and/or
15.2.4 any delays in or failures to implement a request to port; and/or
15.2.5 any variation of the Customer’s phone number; and/or
15.2.6 Rights of the Customer’s phone number terminating.
15.3 Nothing contained in this clause shall limit the Customer’s liability in respect of charges incurred for the Services.
15.4 The Service Provider depends on third party providers, directly or indirectly, to provide its Services. To the extent permitted by law, the Customer agrees not to hold any third party service provider liable for damages, losses, costs or expenses for any consequential, incidental or indirect losses or for any loss of profits, business, income or interest, or in respect of any claims by third parties arising from or in connection with any act, omission, neglect or default of a third party provider, or the Service Provider where this is a direct result of the third party provider’s act or omission, neglect or default.
- DOMICILIA AND NOTICES
16.1 The Parties choose as their respective domicilia citandi et executandi for all purposes under this Agreement, whether in respect of notices in terms of this Agreement, court process, or other documents or communications of whatsoever nature (including the exercise of any option) the following addresses:
16.1.1 SERVICE PROVIDER:
Physical & Postal address: 64 Bester Street, Nelspruit 1200. Email: firstname.lastname@example.org
As completed on the Customer Order Form
16.2 Either of the Parties may change its domicilium citandi et executandi to another address within the same country, by way of a notice to the other party to this Agreement, provided that such a notice is received by the addressee, at least 7 (seven) calendar days prior to such a change taking effect.
16.3 Any notice addressed to either of the Parties and sent by registered post to it at its chosen address on the fifth (5th) calendar day after posting. In the case of hand delivery at the Party’s chosen address to a responsible person on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, shall be deemed to have been received, unless the contrary is proved, on the day of delivery.
16.4 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
16.5 Any notice sent by fax or e-mail to either of the Parties shall be deemed, unless the contrary is proved, to have been received:
16.5.1 if it is transmitted on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, within two (2) hours of transmission;
16.5.2 if it is transmitted outside of these times, within two (2) hours of the commencement any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, after it has been transmitted.
16.6 Proof of e-mail delivery shall be sufficient proof of service in the event that a notice is sent via e-mail.
- LEGAL COSTS
In the event that the Service Provider has to enforce any of its rights in terms hereof against the Customer, or collect any monies due in terms hereof from the Customer or any third party, or institute or defend any action against any third party which litigation is caused by any breach by the Customer, then Customer shall be liable for and hereby consents to the Service Provider’s legal expenses being: attorney’s fees as calculated on a scale between attorney and own client; disbursements; the cost of counsel on an increased tariff; and collection commission.
- FORCE MAJEUR
18.1 Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves:
18.1.1 that the failure was due to an impediment beyond its control;
18.1.2 that it could not reasonably be expected to have taken the impediment and its effects upon the party’s ability to perform into account at the time of the conclusion of this Agreement; and
18.1.3 that it could not reasonably have avoided or overcome the impediment or at least its effects.
18.1.4 An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive:
22.214.171.124 war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage; natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning; explosions, fires, destruction of machines, factories and any kind of installations; boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and premises and word stoppages; acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of this Agreement.
18.2 For the purposes of this clause “impediment” does not include lack of authorizations, of licenses, of permits or of approvals necessary for the performance of this Agreement and to be issued by the appropriate public authority.
18.3 Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the party seeking relief gives Notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than sixty (60) days either of the Parties shall be entitled to terminate this Agreement.
During the course of this Agreement, each Party may disclose to another Party certain proprietary information (including trade secrets, know-how, software, techniques, product plans, marketing plans, customers, inventions, improvements and research data) (“Confidential Information”) of a character regarded by the disclosing Party as confidential. Each Party and each of its Associates, directors, officers, employees, representatives, agents or professional advisers to whom disclosure is made shall hold all Confidential Information and the terms of this Agreement in confidence, and shall not disclose such information to any third party or apply it to uses other than the recipient’s performance of this Agreement.
This agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same agreement. Any party may enter into this agreement by signing any such counterpart which. Electronic signature, signature on a faxed copy, copy, or e-mailed copy shall be sufficient signature.
- CO-OPERATION AND SUPPORT
The Parties undertake at all times to do all such things, perform all such actions and take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and/or import of this Agreement.
The Parties consent to the jurisdiction of the Western Cape High Court, South Africa.
23.1 This Agreement shall be interpreted and construed in accordance with the Laws of the Republic of South Africa.
23.2 This Agreement shall be binding upon the Parties, their heirs, administrators, lawful successors-in-title and permitted assigns.
23.3 This Agreement comprises the sole Agreement between the Parties relating to the transactions referred to and supersedes and replaces any previous agreements between the Parties, whether written or oral.
23.4 No amendment, variation, addition to, deletion of, waiver, suspension or consensual cancellation of the whole of this Agreement or any provision hereof (including this clause), shall be of any force or effect, unless reduced to writing and signed by or on behalf of the Parties.
23.5 No indulgence, latitude or extension of time (for convenience, “indulgences”), which any Party may show any other Party, shall be deemed to comprise a waiver by the Grantor, nor constitute any novation, nor give rise to any defence based on the principle of Estoppel (nor create any precedent) and notwithstanding any such prior indulgences, the Parties shall, at all times, be entitled to rely upon and demand a prompt compliance with the provisions this Agreement (and of the obligations of the other Parties).
23.6 No Party shall be entitled to cede, assign or otherwise delegate wholly or in part any of its obligations under this Agreement without the express prior written consent of the other Party.
23.7 The provisions of this Agreement are severable and divisible as to each provision or part thereof, and should any provision or part thereof be found to be invalid or unenforceable by a competent Court, such a finding shall, subject to the Order of such Court, not affect the validity and/or enforceability of the remaining provisions or parts thereof.