TERMS & CONDITIONS
1.1. In this agreement, unless inconsistent with or otherwise indicated by the context:
1.1.1. “the Agreement” or “the Service Agreement” means this entire document containing an application by the Subscriber for the provision of the Services, the airtime, the sale and/or rental and/or loan of the Equipment, any reference electronically or otherwise to the Terms and Conditions and acceptance thereof and any annexures and/or addenda thereto;
1.1.2. “Africa Telecoms” means Africa Telecoms (Proprietary) Limited with registration number 2005/008566/07 a private company duly incorporated in the Republic of South Africa;
1.1.3. “airtime” shall mean the monetary value or credit that enables access to the Network on a pre-paid or post-paid basis as indicated in the Service agreement;
1.1.4. “Bank” means any registered bank, financial institution or entity offering credit and/or account facilities to its Subscribers;
1.1.5. “call rate” means the cost of a specified unit of airtime to a specified Network at a specified time, in terms of the package which is referred in the Tariff;
1.1.6. “CLI” means caller line identification that refer to information generated by the Network that include the called parties number, the calling parties number, the time of day, the duration of the call and routing of the call.
1.1.7. “connection date” the date the agreement is accepted by Africa Telecoms and the commencement date of the Agreement.
1.1.8. “connection charge” means the initial cost to connect to the Network as set out in the Tariff;
1.1.9. “delivery” means delivery of the Equipment to the Subscriber;
1.1.10. “duration of agreement” the duration in time from the commencement date to the date of termination of the Agreement.
1.1.11. “Electronic Communications Act” means the Electronic Communications Act of 2005 (Act No. 36 of 2005);
1.1.12. “EFT” means electronic funds transfer;
1.1.13. “Equipment” means any fixed or mobile digital equipment or device which is capable of connection by radio interface to the Network, which is approved by the Regulatory authority and under any legislation concerning such equipment, used by the Subscriber and acceptable to Africa Telecoms and the Service provider. Equipment includes but is not limited to handsets, gateways, routers, pabx systems, network switches and wireless desktop phones. The Equipment relevant to this Agreement will be indicated and specified on the invoice or delivery note as well as all subsequent invoices or delivery notes as furnished by Africa Telecoms;
1.1.14. “equipment price” means the price for the Equipment as set out in the delivery not or invoice furnished by Africa Telecoms;
1.1.15. ”GSM” means the Global System for Mobile communications;
1.1.16. “license” means a license that is granted by the Regulatory authority in terms of Section 5(2) of the Electronic Communications act or any other license as may be required from time to time;
1.1.17. “migration” means the migration from one Tariff to another;
1.1.18. “monthly subscription charge” means the monthly charge for being connected to the Network as set out in the Tariff if applicable;
1.1.19. “MRC” means monthly recurring costs;
1.1.20. “NRC” means non-recurring costs or once off costs;
1.1.21. “the Network services” means basic telecommunications services providing two-way communications by electronic telegraphy via a network and such other additional telecommunication services as the service providers or Africa Telecoms may at its option choose to make available from time to time by means of the Network or otherwise;
1.1.22. “the Network” means the digital cellular mobile telecommunication network using the GSM standard as defined by the European Technical Institute or the public switched telephone network (PSTN) operated by Telkom, Vodacom or any other Service provider;
1.1.23. “partner” means any subsidiary and/or affiliate of Africa Telecoms directly or indirectly associated with the rendering of the airtime service;
1.1.24. “number” or “telephone number” is a sequence of digits assigned to a Subscriber by a Service provider to enable such Subscriber access to the Network.
1.1.25. “the Tariff” means the tariff plan under which the Subscriber is connected to the Network, of which the current tariff plan is set out in the Agreement. The Tariff is subject to change with 30 (thirty) days written notice by Africa Telecoms. The Tariff or amended Tariff published from time to time by Africa Telecoms may vary according to usage charges and other variables and is subject to the requirements, conditions and/or approvals of the regulatory authority where applicable;
1.1.26. “pre-paid” means the instance where the Subscriber makes payment of a specified amount in advance to Africa Telecoms or the Service provider or its agents for the purchase of airtime;
1.1.27. “post-paid” means the instance where payment is effected after the fact as calculated and charged according to the Subscriber’s use of the airtime and/or services at the end of each month;
1.1.28. “port’ or “porting” refers to the ability of a Subscriber of an existing fixed-line or mobile telephone number assigned by a Service provider to request the Service Provider to reassign the number to another Service provider.
1.1.29. “the Regulatory authority” means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act of 2000 (Act No. 13 of 2000), to regulate the operation of the electronic communications network and any similar networks in the Republic of South Africa;
1.1.30. “recharge” or “top-up” means the process for the purchase of pre-paid airtime by the Subscriber to be added to the value on the account of the Subscriber;
1.1.31. “RICA” means the Regulation of Interception of Communication and Provision of Communication-related Information Act of 2002 (Act No. 70 of 2002).
1.1.32. “Service provider” shall mean any licensed telecommunications service provider including but not limited to telecommunication network operators such as Telkom, Neotel, Vodacom, MTN or Cell C;
1.1.33. “security deposit” means the deposit amount held by Africa Telecoms if applicable;
1.1.34. “the service” or “services” shall include but not be limited to the provision of access to voice and/or data services, the routing of voice traffic on the Network, connection to the Network, management and billing of airtime, access to the Landline App, the collection of payment for the services from the Subscriber, the provision of Equipment and any other services agreed to by the Parties;
1.1.35. “Subscriber” means the person or entity entering into an agreement or contract with Africa Telecoms to receive a Service or Services as described in the Agreement;
1.1.36. “VAT” means Value Added Tax as levied by the South African Revenue Service currently at 15 (fifteen) percent.
1.1.37. “voice traffic” means all local, national, international and mobile voice or data routed through the Network.
1.2. The clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
1.3. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
1.4. The expiration or termination of this agreement shall not effect such of the provisions of this agreement as expressly provide that they shall operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.5. In the event of a conflict arising between the terms and conditions of this Agreement as those contained in any other agreement or arrangement, the provisions of this Agreement shall prevail.
1.6. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
2. CONNECTION AND PROVISION OF THE TELECOMMUNICATION SERVICES
2.1. Subject to acceptance by Africa Telecoms and subject to the remaining terms and conditions of this Agreement, Africa Telecoms shall supply Equipment, connect and maintain the connection of the Equipment to the Network if applicable and Africa Telecoms shall use its reasonable endeavors to make the Services available to the Subscriber throughout the duration of this agreement, save and except, for circumstances beyond the control of Africa Telecoms, its partners and/or the Service provider.
2.2. The Subscriber hereby instructs Africa Telecoms to facilitate the process in terms of which the Subscriber shall access the Network by the utilisation of the Service on a pre-paid or post- paid basis if applicable.
2.3. The Subscriber acknowledges that this document constitutes an offer by the Subscriber, which may be accepted or refused by Africa Telecoms in its sole discretion. The offer will be considered once received by Africa Telecoms at Africa Telecoms’ premises, which premises will be offices of Africa Telecoms at the address set out on the front page hereof.
2.4. Installation of Equipment and/or Connection of the Subscriber to the Network shall be deemed to constitute acceptance of the offer by Africa Telecoms and commencement of this Agreement.
2.5. All further or additional Services rendered by Africa Telecoms will be subject to the terms and conditions of this Agreement.
2.6. This Agreement shall become binding between Africa Telecoms and the Subscriber whether or not the Subscriber was notified of the acceptance of the offer. The Subscriber herewith expressly dispenses with notification of acceptance of the offer by Africa Telecoms.
3.1. This Agreement shall commence on the date of installation of the Equipment and the activation of the Services as referred to in clause 2.4 above and shall continue indefinitely unless terminated by the one party giving the other party not less than 1 (one) calendar months written notice of such termination with the understanding that such written notice can not be given within the first 3 (three) calendar months of signature hereof.
3.2. This Agreement is subject to the condition that in the event of non-activity including but not limited to the absence of outgoing calls for a period of 90 (ninety) days during the existence of this Agreement Africa Telecoms may terminate the Agreement without notice to the Subscriber.
3.3. Written notice in terms of this clause will include email and shall be deemed received by the other party on date of transmission.
3.4. The Equipment leased or on loan will be removed by Africa Telecoms as soon as reasonably possible after the last day of the notice period referred to in clause 3.1 above.
3.5. In the event of termination of the Agreement as referred to in this clause the Subscriber shall have no claim of any nature against Africa Telecoms, its partners and/or the Service provider, any of their directors, employees, agents or approved representatives as the Equipment will be deactivated and the Service terminated.
3.6. The parties acknowledge that the Porting of Telephone Numbers to Africa Telecoms is in most instances a material condition to the Agreement and the subsequent rendering of the Service by Africa Telecoms. It is hereby recorded that telephone Numbers allocated to the Subscriber and thereafter Ported by the Subscriber and/or Africa Telecoms from one Service provider to another is limited to one Porting request every 3 (three) calendar months per the Regulatory authority and therefore any cancelation and/or termination of the Service will at all times be subject to such limitation.
3.7. The Subscriber indemnifies Africa Telecoms against any damage, cost or liability (including liability for Africa Telecoms negligence) together with all legal costs relating to any possible claim arising from the Porting limitations referred to in clause 3.6 above that may exist prior to or on the date of termination of this Agreement.
4.1. The Subscriber shall pay to Africa Telecoms the aggregate of all applicable charges levied by Africa Telecoms from time to time including, without limitation:
4.1.1. Upon commencement hereof, the connection charge, the Equipment charge, installation charge, the first month’s subscription charge and any other introductory or commencement charges; and
4.1.2. Monthly rental fee for use of the Equipment leased by the Subscriber if applicable. It is acknowledged by the Subscriber that this amount may be adjusted from time to time as Equipment is additionally supplied or reduced by Africa Telecoms; and
4.1.3. Any pro-rata subscription charge which may arise in the first billing period if applicable; and
4.1.4. Monthly in advance, the monthly subscription charges; and
4.1.5. Monthly in advance, or as and when billing is passed to the Subscriber if applicable, the total call charges used and/or generated by the Subscriber in conjunction with or by means of the Equipment during any billing period, and any other charges payable in respect of the Services requested by the Subscriber or other charges levied by Africa Telecoms from time to time; and
4.1.6. Any other charges as from time to time levied by Africa Telecoms; and
4.1.7. Value added tax at the applicable rate on all vatable charges and services. All prices and charges, in terms of this Agreement, unless otherwise stated, exclude value added tax.
4.1.8. Such deposit as Africa Telecoms shall be entitled to demand in terms of clause 4.3 below.
4.2. Any amount due by the Subscriber to Africa Telecoms, not paid on the due date thereof, shall at the discretion of Africa Telecoms, bear interest at a rate equal to 2 % (two percent) per annum above the prime interest rate, calculated from the date payment was due until date of actual payment thereof.
4.3. Africa Telecoms shall be entitled to demand, upon signing of the Agreement by the Subscriber or at any time thereafter, payment of such deposit as it may deem fit, which deposit shall be paid by the Subscriber in cash simultaneously with the signing of the Agreement by the Subscriber or immediately upon demand by Africa Telecoms, such deposit may be detained and appropriated in whole or in part by Africa Telecoms towards payment of any sums whatsoever due to Africa Telecoms by the Subscriber.
4.4. All payments must be effected in advance by EFT or direct deposit to the Africa Telecoms bank account or where payment is effected by debit order then such payment must be effected on Africa Telecoms’ direct debit date. Non-receipt of invoices by the Subscriber will not be considered as a valid reason for non-payment or late payment.
4.5. Where payment is effected by withdrawals from the Subscriber’s bank account via debit order, the Subscriber acknowledges that all such withdrawals by Africa Telecoms shall be treated as though the Subscriber has signed and authorized such withdrawals personally.
4.6. The Subscriber acknowledges and understands that withdrawals hereby authorized if applicable will be processed by computer through a system known as the ACB Magnetic Tape Service and also understands that details of each withdrawal will be printed on the Subscriber’s bank statement.
4.7. The Subscriber agrees to pay any bank charges relating to this debit order transaction.
4.8. The Subscriber acknowledges that the debit order authority herein may be cancelled by giving Africa Telecoms 30 (thirty) days written notice. In this instance the Subscriber shall not be entitled to a refund of any amounts that Africa Telecoms has withdrawn from the Subscribers bank account while this authority was in force if such amounts were legally owing to Africa Telecoms. The Subscriber acknowledges that any cancellation of the debit order authority after activation could result in Africa Telecoms suspending the Service and all cancellation costs will be for the Subscriber’s account.
4.9. The Subscriber agrees that payment shall only have been made to Africa Telecoms when the monies remitted by the Subscriber have been received in Africa Telecoms’ bank account.
4.10. Should any debit order or Cheque payment be returned unpaid or stopped or should any charge card account or credit card account of the Subscriber be rejected for whatsoever reason or should Africa Telecoms exercise its rights to suspend the provision of the Services due to non or late payment of any monies due in terms hereof by the Subscriber, then the Subscriber shall pay an administrative charge as may be levied from Africa Telecoms from time to time for each such non-payment, suspension or any other breach of the agreement which amount shall be payable upon demand and recoverable by Africa Telecoms.
4.11. The allocated account number must accompany all payments as reference number and where payment is effected with direct deposit, the Subscriber is obliged to assure to the correct capturing of such number by the bank teller or official.
4.12. Africa Telecoms’ Tax Invoice or Statement of charges shall be prima facie proof of the amounts owed by the subscriber to Africa Telecoms.
4.13. All billing information in relation to call charges, duration and numbers are automatically generated and captured by Africa Telecoms and/or their Partners from CLI information received from the Service provider. In the event of the Subscriber wishes to place in dispute such billing information, then the subscriber shall bear the onus of proving such inaccuracy. No payment may be withheld due to a dispute in relation to this clause.
4.14. No refunds will be processed by Africa Telecoms to any other bank account other than the bank account from where the original payment was received.
4.15. All amounts due and payable to Africa Telecoms must be payed timeously and the non-receipt of invoices or account statements for whatever reason will not be considered a valid basis for late or non payment.
4.16. The Subscriber shall not withhold any payment to Africa Telecoms for any reason whatsoever nor shall the Subscriber sett off any rental or any other amount payable, any present or future claim which the Subscriber may have against Africa Telecoms from any cause whatsoever.
4.17. Any payments received by Africa Telecoms will by applied firstly to the payment of any additional amount payable or any arrears amount payable by the Subscriber and the balance thereof will then only be applied to the monthly fees and rental. Notwithstanding the above, Africa Telecoms may in its own discretion and without notice to the Subscriber apply any amounts received from the Subscriber towards any outstanding amounts owed by the Subscriber. The Subscriber shall remain liable for any shortfall of any nature in terms of this Agreement.
4.18. It is expressly agreed by the parties that the monthly fees, rental or subscriptions payable by the Subscriber do not include any payment in respect of maintenance, call out fees or any other additional services.
4.19. It is expressly agreed by the parties that the Subscriber will be held liable for all call out fees and maintenance work conducted by Africa Telecoms and that the authority by the Subscriber or any agent or representative of the Subscriber to request Africa Telecoms to conduct such work need not be proven by Africa Telecoms.
4.20. In the event that any of the rental costing factors changes, then without derogating from anything aforesaid, Africa Telecoms may adjust the rental amounts so that they maintain the interval level return they enjoyed immediately prior to the said change. Any adjustments to the rentals shall take effect upon the first day of the following month Africa Telecoms informed the Subscriber thereof.
5. INSTALLATION, RISK, OWNERSHIP AND INSURANCE OF EQUIPMENT
5.1. Africa Telecoms will install the Equipment as specified on the invoice or delivery note as furnished by Africa Telecoms at the premises of the Subscriber. All additional Equipment supplied by Africa Telecoms as specified in further invoices or delivery notes will be subject to this Agreement.
5.2. It is hereby acknowledged by the parties that Africa Telecoms have the sole and exclusive right to determine, prescribe, alter or adjust the type, make, model, quantity and specifications of Equipment necessary for them to render the Service referred to in this Agreement.
5.3. All risk or profit and loss in and to the Equipment shall pass to the Subscriber upon delivery.
5.4. The Subscriber undertake to accept delivery of the Equipment as and when such delivery is tendered by Africa Telecoms.
5.5. The Subscriber shall at its own cost insure that the installation areas, electrical outlets, connection requirements and access ways are suitable for installation and maintenance. In the event that special lifting equipment is necessary for the installation, the Subscriber undertake to pay all charges in relation thereto and Africa Telecoms will not be held liable for such expense.
5.6. In the event of the relocation of the Subscriber and/or the Equipment or any part thereof, the Subscriber will be held liable for installation or re-installation costs as charged by Africa Telecoms.
5.7. In the event of leased and/or loaned Equipment supplied by Africa Telecoms, Africa Telecoms reserve the right to modify, swop or otherwise exchange Equipment from time to time in their sole and absolute discretion.
5.8. In the event where the Subscriber outright purchase the Equipment, the rights, title and ownership thereto shall vest in the Subscriber only once all payments due in relation to such purchase have been received by Africa Telecoms.
5.9. The rights, title and ownership of Equipment on loan or leased by the Subscriber from Africa Telecoms shall at all times remain and vest in the name of Africa Telecoms.
5.10. The Subscriber shall provide proof in writing to Africa Telecoms that the Equipment on lone or leased is adequately insured for the fair market value as furnished from time to time by Africa Telecoms. The Subscriber undertakes to pay any shortfall on an insurance claim if necessary.
5.11. The Subscriber undertake to update the insurer of all new or additional Equipment during the period of the Agreement as well as any change in address.
5.12. The Subscriber shall provide proof in writing to Africa Telecoms that in the instance where the Equipment is installed at a leased premises that the Landlord of such leased premises is aware that the Equipment is the property of Africa Telecoms and therefore not subject to any Landlord lien.
6. AFTER SALE CARE AND GUARANTEE (If applicable)
6.1. Notwithstanding that the Subscriber purchased, leased or loan the equipment and related accessories from Africa Telecoms or from any third party, should the equipment be damaged, lost, stolen, un operational or undergoing repair, the Subscriber agrees that this Agreement is not conditional upon such purchase, lease, availability or operation and shall continue to be in full force and effect and the Subscriber shall continue to pay all amounts due in terms hereof.
6.2. In the event that the equipment was purchased from Africa Telecoms, then the manufacturer’s warranty will apply to such equipment. Such warranty is normally for 6 (six) to 12 (twelve) months from the date of purchase and normally covers defective equipment as result of faulty design, manufacture or workmanship provided that such equipment has not been misused, overloaded, modified or repaired by an unauthorised party. In addition, batteries are normally excluded from any warranty.
6.3. Should Africa Telecoms 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 Africa Telecoms shall not be liable for any loss, damage, destruction, theft or negligent workmanship however caused.
6.4. Should the Subscriber fail to pay any monies due in respect of the Equipment or accessories purchased, leased or loaned from Africa Telecoms, then Africa Telecoms shall be entitled without prejudice to any other rights it may have at law forthwith and without notice suspend, interrupt or disconnect the Services or any part thereof.
6.5. Should Africa Telecoms loan equipment to the Subscriber whilst the Subscriber’s owned or leased equipment is being repaired, then the Subscriber shall upon demand return the equipment to Africa Telecoms and all risk in and to such loaned equipment shall vest in the Subscriber until the Subscriber returns it to Africa Telecoms at the Subscribers’ own cost. In the event of the Subscriber damaging or losing the loan equipment, the Subscriber will be responsible for replacing the loan equipment at the Subscriber’s own cost.
7. SUBSCRIBER ACKNOWLEDGEMENT
7.1. The Subscriber acknowledges and agrees that service quality and coverage available to the Subscriber shall be limited to that provided by the Networks 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.
7.2. Africa Telecoms endeavor to be accessible and available during normal office hours Monday to Friday for queries, fault reporting and changes to Services that include diverting of numbers, voice mail and Equipment adjustments. In the event that Africa Telecoms is not available during Public holidays, School holidays and certain other days, the Subscriber acknowledge that any Service requested must be reduced to writing and sent by email at least 24 (twenty-four) hours before the Service is required.
7.3. The Subscriber shall not hold Africa Telecoms, its partners and/or the Service providers, any of their directors, employees, agents or approved representatives liable for any non-availability of Africa Telecoms, the Services, availability or quality of network coverage or for any other reason whatsoever.
8.1. It is hereby noted that Africa Telecoms shall connect the Equipment to the Network and Africa Telecoms shall use all its reasonable endeavors to make the Services available to the Subscriber throughout the duration of this agreement, save and except, for circumstances beyond the control of Africa Telecoms, its partners and/or the Service provider.
8.2. Lines or other data lines supplied by Service providers are not the responsibility of Africa Telecoms and therefore not included in any monthly fees or subscription charges. The Subscriber will be held liable for call out fees and any other related charges by Africa Telecoms due to the malfunction of the Equipment as a result of a faulty line or any other external factor.
8.3. The Subscriber herewith acknowledge that all Africa Telecoms voice connectivity services are dependent on data connectivity services rendered by third party Service providers and as these services are not guaranteed, the Africa Telecoms service can not be guaranteed.
8.4. This clause 8 specifies the entire liability of Africa Telecoms, any of its directors, employees, agents or approved representatives, including for negligence and in particular, but without limitation, all other statutory, express, implied or collateral terms, conditions or warranties are excluded.
8.5. Africa Telecoms shall not be under any liability for any loss or damage or injury to the Subscriber whatsoever no matter when or how arising out of the provision of the Services or otherwise, whether direct or indirect, consequential or contingent and whether foreseeable or not and in particular Africa Telecoms shall not be liable for any financial loss or loss of profits, loss of contracts, loss of business or goodwill.
8.6. The Subscriber indemnifies Africa Telecoms against any damage, cost or liability (including liability for Africa Telecoms negligence) arising from the provisions of clause 6 of the agreement or the Services to the Subscriber, its employees, directors and/or agents together with all legal costs relating to any claim arising there from.
8.7. The Subscriber indemnifies Africa Telecoms against any damage, cost or liability (including for Africa Telecoms’ negligence) arising from any illness or personal injury or death suffered by the Subscriber as a result of the use of the Equipment, irrespective of when or how, and whether foreseeable or not, together with all legal costs relating to any claim arising there from.
8.8. The Subscriber acknowledges Africa Telecoms’ right to inform third parties of any breach by the Subscriber of its obligations in terms of this agreement and the Subscriber indemnifies Africa Telecoms in respect of any claim whatsoever arising from Africa Telecoms’ exercising of this right.
8.9. Notwithstanding the aforementioned provisions Africa Telecoms’ liability in terms of this agreement will be completely discharged if the Subscriber, its employees, representatives, agents, assignees and successors attempt to perform, or allow third parties to perform, services which are the responsibility of or will have an effect on the responsibilities of Africa Telecoms under this agreement without the prior written consent of Africa Telecoms.
9. USE OF SERVICE
9.1. The Subscriber acknowledges and agrees that it is aware and will stay aware of and shall at all times comply with all statutory or regulating provisions relating to wireless telegraphy and telecommunication services applying to the provision and use of the Service via the equipment from time to time.
9.2. In addition the Subscriber shall:
9.2.1. Comply with any instructions issued by Africa Telecoms, its partners and/or the Service provider with concern to the Subscriber’s use of the Service, equipment or associated matters; and
9.2.2. Provide Africa Telecoms with all such necessary information that Africa Telecoms may reasonably require; and
9.2.3. Only use equipment that is approved for use on the network by Africa Telecoms, its partners and/or the Service providers in writing.
10. SUSPENSION AND/OR DISCONNECTION OF SERVICE
10.1. Africa Telecoms and/or the Service provider may from time to time without notice suspend the Service (and at Africa Telecoms’, its partners and/or the service provider’s discretion disconnect the Equipment from the Network) in any of the following circumstances:
10.1.1. In the event of the Subscriber failing to timeously effect the monthly subscription charge as indicated in the Tariff; or
10.1.2. In the event of the Subscriber not effecting payment of any outstanding amounts on due date in terms of this Agreement; or
10.1.3. During any technical failure, modification or maintenance of the network provided that Africa Telecoms and/or the Service provider will use its best endeavors to procure the resumption of the Services as soon as reasonably practicable; or
10.1.4. If the Subscriber fails to comply with any of the terms and conditions of the Agreement (including failure to pay any amounts due) until the breach (if capable of remedy) is remedied, or does, or allows to be done, anything which in Africa Telecoms’ and/or the Service provider’s opinion may negatively effect the operation of the Service;
10.1.5. In the event of non activity including but not limited to the absence of outgoing calls for a continuous period of 90 (ninety) days during the existence of this agreement.
10.2. Notwithstanding any suspension of the Service under this clause 10, the Subscriber shall remain liable for all charges due hereunder throughout the period of suspension unless Africa Telecoms at its sole discretion determines otherwise in writing.
10.3. In the event of the suspension of the Service due to the late and/or non payment of any amounts due then Africa Telecoms and/or the Service provider may at their sole discretion recover any such outstanding amounts from the remaining top-up and/or airtime value on account of the Subscriber. The top-up value recovered by Africa Telecoms and/or the Service provider under the above circumstances will not be returned to the Subscriber on the resumption of the Service.
11.1. In the event that the Subscriber breaches any term of this Agreement or any warranty given by it hereunder or fails to fulfill any obligation resting upon it, then without prejudice to Africa Telecoms’ other rights in terms of this Agreement or the common law, Africa Telecoms may either terminate this Agreement or call for specific performance of all the Subscriber’s obligations and immediate payment of all sums owing by the Subscriber, whether or not then due, in either event without prejudice to Africa Telecoms’ right to recover such damages as it may have suffered by reason of such breach or failure.
11.2. Notwithstanding the afore going and pending Africa Telecoms’ election in terms of this clause, the Subscriber shall remain liable for the payment of all amounts owing by the Subscriber in terms of this agreement whether or not such amounts are then due.
11.3. Africa Telecoms may, without notice, terminate this Agreement immediately in any of the following circumstances:
11.3.1. If the Subscriber fails to pay any amount owing to Africa Telecoms on due date; or
11.3.2. If the Subscriber does or allows to be done anything which in Africa Telecoms’ opinion will or may have the effect of negatively effecting the operation of the Service; or
11.3.3. If any license to operate or use the Network to render the Service is revoked, terminated or modified for any reason either in whole or in part; or
11.3.4. If, for any reason, the Service provider ceases to make the Network available to Africa Telecoms or the Service is substantially reduced for a continuous period exceeding 60 (sixty) days.
11.4. Upon termination of this agreement Africa Telecoms, its partners and/or the Service provider shall disconnect the Equipment from the network.
11.5. Any and/or all remaining top-up and/or airtime value will lapse upon termination of this Agreement and/or disconnection of the Equipment from the Network and the Subscriber shall not hold Africa Telecoms, its partners and/or the Service provider, any of their directors, employees, agents or approved representatives liable.
11.6. After disconnection of the Equipment from the Network consequent upon termination of this Agreement, the Subscriber shall pay on demand all charges outstanding at the time of disconnection and all Equipment supplied to the Subscriber under this agreement of which Africa Telecoms has reserved ownership will be returned to or allowed to be removed by Africa Telecoms or its agents within 24 (twenty four) hours after such termination and/or disconnection.
11.7. Notwithstanding any termination of this Agreement, Africa Telecoms and/or the Service provider may refuse to re-register its number previously allocated to the Subscriber.
11.8. In the event of termination or the Subscriber being sequestrated, placed in liquidation, enters into judicial management, commit any act if insolvency, enters into a compromise with its creditors or fails to satisfy a judgement granted against it within 7 (seven) days of the date of judgement Africa Telecoms shall be entitled without prejudice to its rights in law or in terms of this Agreement to take possession of the Equipment on loan or leased. In the event of the above circumstances Africa Telecoms is hereby irrevocably authorised to enter upon the Subscribers premises to take possession of such goods without court order.
11.9. As stated in clause 3.6 above the parties acknowledge that the Porting of telephone numbers to Africa Telecoms is in most instances a material condition to this Agreement and the subsequent rendering of the Service by Africa Telecoms. It is hereby recorded that Telephone Numbers allocated to the Subscriber and thereafter Ported by the Subscriber and/or Africa Telecoms from one Service provider to another is limited to only once every 3 (three) calendar months by the Regulatory authority and therefore any cancelation and/or termination of the Service will at all times be subject to such limitation. Africa Telecoms reserve the right not to grant permission for any number to be ported in the event of breach of the Agreement by the Subscriber.
11.10. The Subscriber indemnifies Africa Telecoms against any damage, cost or liability (including liability for Africa Telecoms negligence) arising from the provisions of this clause 11 together with all legal costs relating to any claim that may arise there from.
12.1. 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 Africa Telecoms’ prior written consent witch consent may not be unreasonably withheld.
12.2. Africa Telecoms shall be entitled to cede, assign, transfer, encumber or delegate any of its rights, title, interest or obligations in terms of this Agreement to any third party without the Subscriber’s consent and if, for any reason whatsoever, the consent of the Subscriber may be required, the Subscriber shall be deemed to have consented thereto in terms of this Agreement.
13. EXCUSABLE EVENTS
Africa Telecoms shall not be liable to the Subscriber for any breach of these terms and conditions or failure on Africa Telecoms’, its partners and/or the Service provider’s part to perform any obligation as a result of the technical problems relating to the Network, termination of any license to operate or use the network, acts of God, Government control, restrictions or prohibitions or any other Government act or omission whether local or national, act or default of any supplier, agent or sub-contractor, industrial disputes of any kind or any other similar cause beyond Africa Telecoms’ control.
14. VARIATION OF CHARGES AND TERMS
14.1. Africa Telecoms shall use all its reasonable endeavors not to vary any charges and/or terms in relation to the Service without reasonable notice to the Subscriber.
14.2. Africa Telecoms may vary all or any of its charges (including but not limited to any charges in respect of benefits provided to Subscribers and in respect of value added services) by publishing an amended Tariff, such variation to have immediate effect unless otherwise stipulated therein. Posting of the amended Tariff, Terms and Conditions or any other relevant information on the website of Africa Telecoms will be sufficient publication in terms of this Agreement.
14.3. Notwithstanding the above Africa Telecoms reserves the right to vary the terms and conditions of this Agreement at its sole discretion, whether as a result of new legislation, statutory instruments, Government regulations or licenses, amendments to the standard terms and conditions of the service provider, any similar event, or not.
14.4. Africa Telecoms may elect to notify the Subscriber of any variation in writing or to publish such variation at its principal place of business or on its website (www.africatelecoms.co.za).
14.5. Africa Telecoms reserves the right to alter any name, code or Number allocated by Africa Telecoms from time to time for use in connection with the Services and the Subscriber indemnifies Africa Telecoms, its partners and/or the Service provider against any liability arising from such alteration.
15. NO FIDUCIARY RELATIONSHIP
The Subscriber is an independent entity and shall not represent itself as having any power to bind Africa Telecoms or to assume or to create any obligation or responsibility, express or implied, on behalf of Africa Telecoms in terms of this Agreement. Nothing contained in this agreement shall be deemed to establish a relationship of principal or agent between Africa Telecoms and the Subscriber, or with any of their agents or employees, for any purpose whatsoever. This Agreement shall not be construed as constituting the Subscriber and Africa Telecoms as partners, or to create any other form of legal association or arrangement, which would impose liability upon one party for the act or failure to act of any other party.
No latitude, extension of time or other indulgence which may be given or allowed by either party to the other party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either party arising form this agreement, and no single or partial exercise of any right by either party under this agreement, shall in any circumstances be construed to be an implied consent or election by such party or operate as a waiver or a novation or otherwise affect any if the party’s rights in terms of or arising from this agreement or stop or preclude any such party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or terms of this Agreement.
17. NOTICES AND DOMICILIA
17.1. The Subscriber chooses, as its domicilium citandi et executandi, the address set out in this Agreement, or such other address of which the Subscriber may notify Africa Telecoms in writing not being a post office box or poste restante.
17.2. Notices given in terms of this agreement shall be in writing and delivered by hand or pre-paid registered post or by e-mail to the e-mail address as set out in this Service agreement.
18. CONSENT TO JURISDICTION
The Subscriber hereby consents to the jurisdiction of the Magistrate’s Court having jurisdiction over its person in respect of any action by Africa Telecoms arising from this agreement or the cancellation thereof.
This consent does not oust the jurisdiction of any other competent Court and Africa Telecoms shall be entitled, in its discretion, to institute action against the Subscriber in any Court of competent jurisdiction. The parties agree that this consent is severable and shall apply even in the cancellation of this Agreement.
In the event of any one or more of these terms and conditions being unenforceable, same will be deemed to be severable from the remainder of this Agreement, which will nevertheless be binding and enforceable.
20. WHOLE AGREEMENT
This Agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties regarding the subject matter hereof other that those set out herein are binding on the parties, unless otherwise agreed in writing by the parties hereto.
21.1. The Subscriber agrees to the disclosure by Africa Telecoms to any third party, of any information pertaining to the Subscriber or this agreement, to the extent that such disclosure is necessary for the conduct of Africa Telecoms’ business, or is required by any relevant law, statute, regulation or license including but not limited to the requirements of Act No. 70 of 2002 (RICA).
21.2. Where Africa Telecoms is represented by any duly authorised representative, his/her authority need not be proved.
21.3. The Subscriber will notify Africa Telecoms within 7 (seven) days of any change in material information such as address, shareholding, membership and/or directorship.
22. CREDIT FACILITIES
22.1. The granting credit facilities to the Subscriber and the nature and extent thereof is at the sole discretion of Africa Telecoms.
22.2. Africa Telecoms reserves the right to withdraw, increase or decrease any credit facilities at any time without prior notice.
22.3. In the event that credit facilities being granted that it will be based on and subject to the terms/ information and conditions set out on the Credit application.
22.4. In the event of any information made available in the Credit application prove to be inaccurate or incorrect, no further facilities will be allowed and Africa Telecoms will forthwith and without further reference to the Subscriber be entitled to institute recovery proceedings for any and all sums then owing by the Subscriber.
22.5. Africa Telecoms is hereby granted permission to perform a credit search on the Subscribers’ records with one or more registered Credit Bureau when assessing the Subscribers’ Credit application.
22.6. Africa Telecoms may use new information and data obtained from the Credit Bureau in respect of any future applications.
22.7. Africa Telecoms may record the existence of the Subscriber account with any Credit Bureau.
22.8. Africa Telecoms may record and transmit details of the Subscriber performance.
22.9. Africa Telecoms undertakes to give the Subscriber 28 (twenty eight) days written notice prior to the forwarding of any details to the Credit Bureau.
23. DEED OF SURETYSHIP
23.1. The signatory hereto, in addition to the above, hereby bind himself in his private and individual capacity as surety for and co-principal debtor in solidum with the Subscriber in favour of Africa Telecoms for the due performance of any obligation of the Subscriber and for the payment to Africa Telecoms by the Subscriber of any amounts which may at any time become owing to Africa Telecoms by the Subscriber from whatsoever cause arising and including, but without limiting the generality of the foregoing, any claims for damages and actions against the Subscriber.
23.2. This suretyship shall be a continuing covering guarantee/surety which may only be cancelled, in writing, by Africa Telecoms and then only, provided that all sums then owing by the applicant (whether due or not) to Africa Telecoms have been paid in full.
23.3. It is furthermore recorded that if more than one person has appended his/her signature hereto, there shall come into existence a separate distinct and independent contract of suretyship/guarantee which is brought into existence by each signatory hereto. If for any reason this suretyship/guarantee is not binding on any one signatory, then the obligations of the remaining signatories shall nevertheless be and remain of full force and effect.