Terms and Conditions
Terms and conditions
1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears:
1.1 words importing -
1.1.1 any one gender includes the other two genders; and
1.1.2 the singular includes the plural and vice versa; and
1.1.3 natural persons include created entities (corporate or unincorporated) and the state and vice versa;
1.2 the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely -
1.2.1 “the/this Agreement” means this Business Services agreement and all schedules, annexures and addenda to this Agreement;
1.2.2 “the Billing Method” means the manner in which SMS and or MMS units are bundled or grouped together for the purposes of generating SMS and or MMS Charges;
1.2.3 “Business Days” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
1.2.4 “the Business Services” means the services initially requested by the Subscriber and selected on page 2 of this Agreement, as well as any additional services requested by the Subscriber from time to time; such services being rendered by the Service Provider to the Subscriber; and such services being more fully described in the official product brochures distributed by the Service Provider from time to time, and “the Business Service” shall have a corresponding meaning;
1.2.5 “messaging charges” means the charges for each message registered on any Equipment or System operated by the Service Provider or having emanated from any Equipment or System supplied by the Service Provider, billed to the Subscriber, and calculated at the cost per unit of time utilised by the Subscriber, as set out in the Schedule of Business Services;
1.2.6 “the Charges Limit” means the maximum amount of the charges, including the Fixed Charges and the Variable Charges, relating to the Business Services for which the Subscriber can subscribe;
1.2.7 “the Commencement Date” means the date of signature of this Agreement by the Service Provider;
1.2.8 “Connection Charge” means the charge payable by the Subscriber to the Service Provider for connecting the Equipment to the System, and “Connection Charges” shall have a corresponding meaning;
1.2.9 “Connection Date” means the date on which the Service Provider connects any Equipment to any System;
1.2.10 “CPIX” means the annual rate of change in core inflation;
1.2.11 “Data Channel” means a bi-directional data path between input/output devices and the main memory of a digital device permitting one or more input/output operations to proceed concurrently with computation, and “Data Channels” shall have a corresponding meaning;
1.2.12 “Deposit” means the deposit payable by the Subscriber to the Services Provider as reflected on page 2 of this Agreement;
1.2.13 “Device” means a unique application which is measured by the Service Provider and is the lowest unit of measure on the System
1.2.14 “ECA” means the Electronic Communications Act, Act No. 36 of 2005, as amended;
1.2.15 “Equipment” means any equipment which is supplied by the Service Provider to the Subscriber, which is used by the Subscriber in order to access and make use of the Business Services;
1.2.16 “Fixed Charges” means Monthly Access Charges, Monthly Service Charges, Monthly Site Management Fees, and Monthly Channel ““Network Operator” means any third party licensed to provide a network or System in terms of the ECA;
1.2.17 “On Account Charge” means a charge levied by the Service Provider on the Subscriber for the manual collection by the Service Provider of payments due by the Subscriber, which are collected other than by way of an authorised debit order;
1.2.18 “Parties” means the Service Provider and the Subscriber and “Party” shall mean any one of them;
1.2.19 “the Payment Terms’ means the payment terms in this Agreement to which the Service Provider and the Subscriber have agreed, which are set out on page 2 of this Agreement;
1.2.20 “the Schedule of Business Services” means the Schedule of Business Services on page 2 of this agreement as well as any Tariff Plans, amendments and/or updates, published from time to time by the Service Provider;
“the Service Provider” means AMBIENT MOBILE (PTY) LTD
Registration number 2008/001288/07
, being a company with limited liability and being duly incorporated and registered as such in terms of the company laws of the Republic of South Africa, and having its registered address at 141 Witch Hazel Close, Building 3c Highveld Centurion South Africa
1.2.21 “the Subscriber” means the person whose name and registered address appears on the first page of this Agreement; 1.2.22 “System” means any system or network operated under licence by a Network Operator in terms of the ECA; 1.2.23 “Tariff Plan” means a separately identifiable schedule or list of rates at which particular categories of messaging, can be made, the Billing Method at which the Messaging Charges are determined, as well as the rate at which various data messages can be sent, and “Tariff Plans” shall have a corresponding meaning;
1.2.24 “Variable Charges” means Connection Charges, messaging Charges, On Account Charges, and all other charges or fees published from time to time by the Service Provider in the Schedule of Business Services in respect of Business Services provided by the Service Provider to the Subscriber;
1.2.25 “VAT” means Value-Added Taxation in terms of the Value-Added Tax Act, 1991, (Act 89 of 1991), as amended; and
1.3 when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
1.4 where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
1.5 expressions defined in this Agreement shall bear the same meanings in schedules or annexures or addenda (including but not limited to the Tariff Plans) to this Agreement which do not themselves contain their own definitions;
1.6 the schedules, annexures or addenda (including but not limited to the Tariff Plans) to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such schedules, annexures and addenda (including but not limited to the Tariff Plans). To the extent that there is any conflict between the schedules, annexures and addenda (including but not limited to the Tariff Plans) to this Agreement and the provisions of this Agreement itself, the provisions of this Agreement shall prevail;
1.7 the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after 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;
1.8 the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of an agreement, shall not apply.
2.1 This Agreement shall commence on the Commencement Date, and unless terminated in accordance with any other provision of this Agreement, shall endure for the Initial Period.
2.2 If the Subscriber does not terminate this Agreement, by notice in writing not less than 90 (ninety) calendar days’ before the end of the Initial Period, this Agreement will continue indefinitely thereafter until terminated by the Subscriber on the giving of 90 (ninety) days’ calendar notice in writing.
2.3 Subject to any written notice by the Service Provider to the contrary, each item of Equipment, each messaging number, code and/or other identification number allocated and/or delivered to the Subscriber after the Commencement Date shall be subject to this Agreement, save that in respect of each item of Equipment, each messaging number, code and/or other identification number allocated and/or delivered to the Subscriber after the Commencement Date, the agreement and the initial period shall be deemed to have commenced on the date of delivery of the item of Equipment, the messaging number, code, and/or other identification number (“the Deemed Commencement Date”), and subject to any other lawful termination thereof this Agreement shall remain binding on the Parties in respect of each item of Equipment, each messaging number, code, and/or other identification number allocated and/or delivered to the Subscriber until terminated by either Party in terms of clause 2.1, clause 2.2, or clause 2.3 after expiry of the initial period calculated from the Deemed Commencement Date.
3. PROVISION AND SCOPE OF THE BUSINESS SERVICES
3.1 The Service Provider undertakes to provide, at the applicable Fixed Charges and Variable Charges, the Business Services to the Subscriber, by connecting Equipment to a System on the terms and conditions set out in this Agreement.
3.2 The Subscriber acknowledges that any System made available by the Service Provider to the Subscriber may not necessarily be operated by the Service Provider, and that, save as provided in clause 7, the Service Provider has no obligations whatsoever in respect of a System or any Equipment.
3.3 The Subscriber acknowledges and accepts that the availability and/or quality of the Business Services may be affected by factors including, but not limited to, the Equipment used in conjunction with any System, accessories used in conjunction with any Equipment, atmospheric conditions, radio frequency disturbances, bandwidth congestion and availability, and any other factors beyond the control of the Service Provider.
3.4 Pursuant to clause 7, and whilst the Service Provider will take all reasonable steps to ensure that the Business Services are provided in accordance with this Agreement, the Service Provider cannot and does not guarantee that the Business Services will be provided at all times, and the Service Provider will not be liable for any direct or indirect loss or damage that may be sustained by the Subscriber as a result of any faults or interruptions in the Business Services.
3.5 The Service Provider shall be entitled from time to time to issue such reasonable instructions as it may deem to be necessary in relation to the Business Services or to be in the interests of safety, quality of service, or of other subscribers and the Subscriber shall be bound by all such instructions as if they formed part of this Agreement.
3.6 The Business Services are provided by the Service Provider on the basis that the Subscriber:
3.6.1 will not utilise the Business Services, or allow others so to do, for any improper, immoral, or unlawful purpose;
3.6.2 will only use the Equipment in accordance with the particular manufacturer’s instructions and for the purpose or manner for which they are intended to be used;
3.6.3 will comply with all relevant legislation and regulations and all instructions issued by any governmental authority or by any Network Operator, regarding the use of any Equipment or System;
3.6.4 will not act or omit to act, or allow other so to do or omit so to do, in any way that is likely to damage, disrupt or interfere with any System or any Equipment, or which is likely to cause injury or damage to any person or property, or which is likely to cause the quality of the Business Services to be impaired or interrupted in any manner whatsoever.
4.1 By signature to this Agreement, the Subscriber acknowledges that it is aware of and has agreed to all the Fixed Charges and the terms of any applicable Tariff Plan, including the Variable Charges under the Tariff Plan, which shall be payable to the Service Provider as follows:
4.1.1 the Connection Charge, the Deposit, the first month’s applicable Fixed Charges on the Commencement Date;
4.1.2 subsequent monthly Fixed Charges on or before the first day of each month following the Connection Date;
4.1.3 the Variable Charges and all other charges, within the agreed Payment Terms; the Subscriber acknowledging that the timing, format, delivery method and details of invoices being at the sole discretion of the Service Provider.
4.2 The applicable Fixed Charges are charges for the management of the Equipment and/or the System and permitting the Subscriber, amongst other things, continued access to the Business Services and as such the Subscriber will be liable for each and every applicable monthly Fixed Charge irrespective of the use that is made by the Subscriber of the Equipment or any System.
4.3 Any message registered and recorded on any System or Equipment or having emanated from any System or Equipment shall, unless the contrary is proved, be deemed to have been made by or by means of the Equipment or the System.
4.4 For the purpose of calculating message Charges, the number of messages and or message parts as recorded and registered on the applicable metering system used by any Network Operator (including where applicable, the Service Provider) shall be final and binding on the Subscriber.
4.5 The Service Provider may at any time by written notice require the Subscriber to furnish such security (including an additional Deposit) as the Service Provider may deem appropriate for the payment of any charges, including the Fixed Charges and the Variable Charges, and any failure by the Subscriber to furnish such security (including the request for an additional Deposit) to the Service Provider within 14 (fourteen) days after the date of such notice shall constitute a material breach of this Agreement by the Subscriber.
4.6 The Service Provider shall be entitled, in its sole and absolute discretion any by means of written notice to the Subscriber, to vary the Fixed Charges, including the Monthly Access Charge and Monthly Service Charge and the Variable Charges (including the Billing Method), from time to time. Notwithstanding the date of any such notice, any variation in the Variable Charges arising from an increase in any Network Operator’s (including where applicable, the Service Provider) charges in respect of the use of any Equipment or any System shall take effect as from the date upon which the Service Provider becomes liable to the Network Operator (including where applicable, the Service Provider) in question for such increased charge(s).
4.7 The Service Provider shall be entitled, in its sole and absolute discretion to determine the Charges Limit and or to vary the Charges Limit from time to time. The Service Provider shall further be entitled to, if the Fixed Charges and Variable Charges for which the Subscriber is responsible to the Service Provider exceed the Charges Limit set by the Service Provider, suspend the Business Services, in whole or in part, without detracting in any way from the Service Provider’s rights in terms of this Agreement to demand full settlement of all Fixed Charges and Variable Charges owing from time to time. The Service Provider shall not be liable to the Subscriber for any loss or damage, including loss of profit or any other damages or any indirect or consequential loss or damage which the Subscriber or any other person may suffer as a result of the suspension of the Business Services in terms of this clause.
4.8 Each Fixed Charge (including the Monthly Access Charge and the Monthly Service Charge) and the Variable Charges, unless otherwise stated in the Schedule of Business Services, are exclusive of VAT, which VAT shall be borne and paid by the Subscriber together with the charge in question.
5.1 All the Variable Charges shall be paid by the Subscriber to the Service Provider within the Payment Terms agreed by the Service Provider and the Subscriber in terms of this Agreement.
5.2 All charges, including the Fixed Charges and the Variable Charges, shall be payable by means of direct debit order, free of exchange, set off, or bank charges. The Subscriber shall not, for any reason whatsoever, withhold payment for the Fixed Charges and Variable Charges.
5.3 Should any payment not be made on the due date for payment, the Service Provider shall be entitled, without detracting from the Service Provider’s other rights in terms of this Agreement, to charge interest on such arrear payments, from the due date to the date of actual payment thereof; at a rate equal to the prime rate charged by the First National Bank – a division of Firstrand Bank Limited on overdrawn accounts, from time to time, plus 4% (four percent).
6.1 The Subscriber undertakes that it shall pay, on the Commencement Date, the Deposit referred to in this Agreement.
6.2 The Service Provider shall be entitled, in its sole and absolute discretion to determine the amount of the Deposit to be held by the Service Provider from time to time, as security for any amount which the Subscriber may become indebted to the Service Provider.
6.3 The Deposit amount payable by the Subscriber will be retained by the Service Provider until the termination of this Agreement, free from the payment of any interest to the Subscriber and as security for any amount which the Subscriber may become indebted to the Service Provider.
6.4 The Service Provider will have the right to use all or part of the Deposit, after termination of this Agreement, towards payment of any amount owing to it in terms of this Agreement.
6.5 After termination of this Agreement, the Service Provider will repay such Deposit to the Subscriber, or the balance thereof, if any.
7.1 Messaging numbers, codes and other identification numbers allocated and/or delivered to the Subscriber, shall not ever become the property of the Subscriber and each messaging number, code shall be returned to the Service Provider on termination of this Agreement. All risk in and responsibility for each messaging number and or code shall pass to the Subscriber on delivery thereof.
7.2 The Subscriber shall not dispose of or otherwise transfer any messaging number, code, or other identification number, to any third party without the prior written consent of the Service Provider, which consent, if granted, shall be subject to such terms and conditions as the Service Provider may deem fit. Until such time as the Service Provider grants its written consent, the Subscriber shall remain liable for and shall continue to pay all the charges, including the Fixed Charges and the Variable Charges.
7.3 Messaging numbers, codes, and other identification numbers allocated to the Subscriber shall not become the property of the Subscriber and the Subscriber will not modify or permit the modification of any messaging numbers, codes, or other identification numbers without the prior consent of the Service Provider.
7.4 The Service Provider shall be entitled, should it at any time deem it necessary, to withdraw or change any messaging number, code, or other identification number allocated to the Subscriber.
7.5 The Subscriber shall not modify or permit the modification of any Equipment without the prior written permission of the Service Provider.
7.6 In the event that any Equipment, or any item of Equipment, is lost, stolen or damaged beyond repair or is disposed to a third party, the Subscriber will immediately notify the Service Provider thereof in writing and the Subscriber shall remain liable to the Service Provider for all Variable Charges related to the use of such Equipment until the Service Provider procures the suspension of such Equipment from any System. Save as aforesaid, the Subscriber shall remain liable for and shall continue to pay all the Fixed Charges and Variable Charges as and when they become due for payment.
8. WARRANTIES & GUARANTEES
8.1 Save as expressly set out in this Agreement (and for the avoidance of any doubt, to the exclusion of any schedule, addenda or annexure to this Agreement), the Service Provider does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Business Services and all warranties or guarantees which are implied or residual at common law are hereby expressly excluded, and the Subscriber acknowledges that none have induced it to enter into this Agreement.
8.2 The Service Provider assumes no liability, responsibility or obligations in regard to any claim, loss, expenses, damage (whether consequential or incidental or actual) arising from clause 8.1 above.
9. LIMITATION OF LIABILITY
9.1 Except for any deliberate act or gross negligence on the part of the Service Provider, and except as otherwise expressly provided herein to the contrary, the Service Provider shall not be liable to the Subscriber or any third party for any loss or damage of whatsoever nature and howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against the Service Provider or against the Subscriber by any party arising directly or indirectly out of the Business Services, the Equipment and the System, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be, by or from their use.
9.2 The Subscriber hereby indemnifies the Service Provider against and holds the Service Provider harmless from any claim by any third party arising directly or indirectly out of use of the Business Services, or from the suspension or withdrawal of the Business Services, or in respect of any matter for which the liability of the Service Provider is excluded in terms of this clause 9, or howsoever arising.
9.3 The Subscriber acknowledges that from time to time there may be a suspension of the Business Services from causes beyond the control of the Service Provider and in such event the Service Provider shall not be liable to the Subscriber, or any of the Subscriber's customers, or any third party, for any loss or damage (direct or consequential) thereby incurred, nor for any costs, claims or demands of any nature arising there from.
9.4 In the event that any third party asserts any claim against the Service Provider relating to or in any manner arising out of the use of the Business Services provided to the Subscriber, or otherwise arising out of this Agreement or out of such third party's relationship with the Subscriber, the Subscriber hereby indemnifies the Service Provider and holds it harmless against any such claims, demands, liabilities, costs and expenses of whatsoever nature including legal costs relating to or in any way arising out of the asserted claim.
9.5 Without prejudice to any other rights accorded to the Service Provider in terms of this Agreement, if the Subscriber fails to pay any amount on the due date for payment or breaches any of the other terms of this Agreement, the Service Provider shall be entitled upon written notice to the Subscriber, without any liability or obligation whatsoever, to discontinue the Business Services to the Subscriber and collect any Equipment from any site of the Subscriber until such non-payment or breach is remedied to the Service Provider‘s satisfaction.
9.6 Any known or unknown risk attached to the use of the Equipment and the connection thereof to any System, shall be deemed to have passed to the Subscriber on the Commencement Date or Deemed Commencement Date.
10. TERMINATION AND SUSPENSION OF SERVICES
10.1 The Service Provider may at any time suspend the Business Services, in whole or in part, without notice to the Subscriber and without incurring any liability whatsoever:
10.1.1 should the Service Provider be unable to provide the Business Services, in whole or in part, whether due to force majeure or otherwise through no fault of its own; or
10.1.2 should an agreement from which the Service Provider derives its rights to provide the Business Services, be suspended, cancelled or terminated; or
10.1.3 should such suspension be necessary in order to facilitate any modification, maintenance or remedial works in respect of a System; or
10.1.4 should the Subscriber fail to comply with any terms of this Agreement; or
10.1.5 should the Equipment supplied by the Service Provider infringe or allege to infringe the intellectual property rights of any third party.
10.2 Should the Business Services be suspended pursuant to clauses 10.1.1 or 10.1.2, the Service Provider reserves the right to provide an alternative service to the Subscriber, whether through an alternative Network Operator or service provider or otherwise, all at the Service Provider’s discretion. Should the Service Provider fail to provide an alternative service within 60 (sixty) calendar days after the date of suspension, either Party shall be entitled by written notice to the other, to terminate this Agreement with immediate effect. In such event, the Subscriber shall remain liable for all charges (including but not limited to the Fixed Charges and Variable Charges) accrued up to the date of such termination, payable on demand.
10.3 Should the Business Services be suspended by reason of default of the Subscriber, the Subscriber shall be liable to the Service Provider for the applicable Fixed Charges over the un-expired portion of the Initial Period of this Agreement, plus amounts payable under any agreement between the Service Provider and a Network Operator in respect of this Agreement.
10.4 Should the Business Services be suspended by reason of default of the Subscriber, the Subscriber shall be liable to the Service Provider for its then applicable Connection Charges, payable on cessation of the suspension.
11.1 In the event of a Subscriber being a company with limited liability, a close corporation, a trust, or separate legal entity, the duly authorised signatory to this Agreement agrees to be bound as surety and co-principal debtor subject to the following terms and conditions:
11.1.1 The said surety by signature to this Agreement agrees to bind and interpose himself/herself to and in favour of the Service Provider as surety for and co-principal debtor with the Subscriber for the due and punctual payment by the Subscriber to the Service Provider of any amount which may become due and owing by the Subscriber to the Service Provider and for the due and faithful performance by the Subscriber of any obligation of any nature whatsoever which it may in the future owe to the Service Provider. The Subscriber's indebtedness to the Service Provider, which is secured by this clause, shall include any damages for which the Subscriber may become liable to the Service Provider for breach of this Agreement or otherwise and howsoever arising.
11.1.2 This suretyship and undertaking shall be a continuing covering security for any present or future indebtedness of the Subscriber to the Service Provider and shall remain in full force and effect notwithstanding any fluctuation in or even temporary extinction of such indebtedness.
11.1.3 No alteration or variation of any present or future agreement between the Subscriber and the Service Provider shall in any way release the surety from any liability in terms of this clause.
11.1.4 For the purpose of any action arising out of this suretyship a certificate issued under the hand of a credit controller of the Service Provider as to the amount owing by the Subscriber to the Service Provider and the fact that the due date for payment of the same has arrived, shall be sufficient and satisfactory proof of the facts therein stated until the contrary shall have been proved.
11.1.5 The surety renounces the benefits of the legal exceptions of excussion, division, cession, no value received and revision of accounts, the full force, meaning and effect of which the surety declares himself/herself to be fully acquainted.
11.1.6 The surety accepts all the terms and conditions of the supply of the Business Services contained in this Agreement, which the surety confirms by signature to this Agreement to have read and understood.
11.1.7 The surety also accepts that the suretyship is complete and reasonable in every respect.
12.1 Any documents which may be furnished by the Service Provider to the Subscriber from time to time:
12.1.1 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both Parties hereto as forming part of this Agreement;
12.1.2 shall remain the property of the Service Provider and shall be deemed to have been imparted by it in trust to the Subscriber for the sole use of Subscriber. All copyright in such documents vests in the Service Provider. Such documents and all copies made thereof shall be returned to the Service Provider on demand.
13.1.1 the Subscriber breach any term or condition of this Agreement and fail to remedy such breach within 7 (seven) calendar days after the receipt of written notice from the Service Provider; or
13.1.2 any information furnished by the Subscriber in terms of this Agreement not be true and correct; or
13.1.3 the Subscriber fail to pay any amount payable to the Service Provider in terms of this Agreement on the due date for payment thereof; or
13.1.4 the Subscriber commit any act of insolvency; or
13.1.5 the Subscriber endeavour to compromise generally with its creditors or does or causes anything to be done which may prejudice the Service Provider’s rights hereunder or at all; or
13.1.6 the Subscriber allow any judgement against it to remain unsettled for more than 14 (fourteen) calendar days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
13.1.7 the Subscriber be placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered; or
13.1.8 the Subscriber, if a natural person, die; or
13.1.9 any Equipment supplied by the Service Provider, for which the Subscriber has not fully settled the cash purchase price, be attached under any legal process issued against the Subscriber; or
any agreement in respect of any Equipment be terminated by the Service Provider; then without prejudice to any other rights which the Service Provider may have in terms of this Agreement or according to law, the Service Provider shall be entitled, but not obliged, to:
188.8.131.52 to cease performance of its obligations in terms of this Agreement or any other agreement with the Subscriber, including but not limited to the right to suspend the Business Services, in whole or in part, and disconnect the Equipment; or
to terminate this Agreement and recover from the Subscriber as a penalty, or alternatively as liquidated damages, the aggregate of all amounts which would otherwise become due and payable, including but not limited to the Fixed Charges over the un-expired portion of the Initial Period of this Agreement, plus amounts payable under any agreement between the Service Provider and a Network Operator in respect of this Agreement, and to claim such amounts as well as any other amounts in arrears, including interest, without prejudice to the Service Provider’s right to claim damages.
13.2 Without prejudice to the generality of clause 13.1, should the Subscriber for whatever reason and either with or without the Service Provider’s consent terminate this Agreement at any time before the expiry of the Initial Period, then the Service Provider shall, in its sole and absolute discretion and without prejudice to any other rights it may have in terms of this Agreement, be entitled to forthwith claim immediate settlement of all outstanding amounts due and payable in respect of this Agreement, including but not limited to the Fixed Charges, whether or not such amounts are at that moment due under this Agreement, plus any amounts payable under any agreement between the Service Provider and any Network Operator in connection with this Agreement. The Service Provider shall further be entitled to suspend connectivity to the Equipment or any System and to give notice to any credit bureau to list the Subscriber’s particulars.
A certificate signed by any manager of the Service Provider, whose appointment and authority it shall not be necessary to prove, as to the existence of any facts and, in particular, and without limiting the generality of the foregoing, as to the amount of any indebtedness of the Subscriber in terms of and pursuant to this Agreement, shall constitute prima facie evidence of such facts for any purpose and, more particularly, for the purpose of provisional sentence proceedings or any other equivalent proceeding in any court of competent jurisdiction.
15. NO RELIANCE
15.1 Each of the Parties represents that:
15.1.1 it is not acting as a fiduciary for any other third party; and
15.1.2 it is not relying on any representations made by any other third party; and
15.1.3 it is not relying on any representations of the other Party not recorded in this Agreement; and
15.1.4 in entering into this Agreement it has made its own judgements and has not relied on any view expressed by the other Party not recorded in this Agreement; and
15.1.5 it has consulted with its own legal and tax advisors to the extent that it deems necessary; and
15.1.6 it is entering into this Agreement with a full understanding of the terms, conditions and risks thereof, and is capable of and willing to assume those risks.
16. MAGISTRATES COURT JURISDICTION
16.1 For the purpose of all proceedings hereunder the Parties consent to the jurisdiction of the magistrates’ court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. 16.2 Notwithstanding the provisions of clause 16.1, any Party shall have the right at its sole option and discretion to institute proceedings in any other competent court.
17. DOMICILIUM CITANDI ET EXECUTANDI
17.1 For all purposes, including the giving of any notice, the making of any communication and the serving of any process, the Service Provider and the Subscriber respectively choose their domicilium citandi et executandi (“domicilium”) at their respective street addresses and telefax numbers appearing on the first page of this Agreement. Either Party shall be entitled from time to time to vary its domicilium provided that any address selected by it shall be situated in the Republic of South Africa and any such variation shall only become effective upon receipt of notice in writing by the other Party of such variation. Any notice which either Party may give to the other shall be posted by prepaid registered post or hand delivered or sent by telefax to the other Party’s domicilium.
17.2 Any notice given in terms of this Agreement shall be deemed to have been received by the addressee:
17.2.1 on the date upon which it is delivered by hand; or
17.2.2 in the case of posting by pre-paid registered post, five (5) Business Days after the date of posting thereof; or
17.2.3 if sent by facsimile, upon the next Business Day following the transmission of the facsimile.
17.3 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice to it, notwithstanding that it was not sent to or delivered at the Party’s chosen domicilium.
18.1 The Service Provider shall be entitled to cede and transfer all or any of its rights in terms of this Agreement to any third party, provided it has given written notice thereof to the Subscriber.
18.2 The Subscriber shall not be entitled to cede its rights or assign its obligations in terms of this Agreement to any third party without the prior written consent of the Service Provider.
19.1 The Parties agree to be bound by the terms of any reciprocal confidentiality and non-disclosure agreement, which may have been concluded between them prior to or simultaneously with the conclusion of this Agreement.
19.2 In addition to the terms of any reciprocal confidentiality and non-disclosure agreement between them, as referred to in clause 19.1, the Parties agree as follows:
19.2.1 The Subscriber agrees and warrants to the Service Provider that it shall at all times keep the terms and conditions of this Agreement confidential and shall not disclose the same to any other third party (save to its legal advisors and accountants solely for the purposes of obtaining professional advice thereon);
19.2.2 Each Party acknowledges that it will exchange proprietary and confidential information with the other, as reasonably necessary for each to perform its obligations under this Agreement. All information relating to this Agreement provided by either Party to the other, whether oral or in writing, shall be deemed to be confidential and proprietary information unless indicated to the contrary in writing.
20.1 Should any dispute, disagreement or claim arise between the Parties (hereinafter called the dispute) concerning this Agreement, the Parties shall try to resolve the dispute by negotiation. The aggrieved Party shall invite the other Party in writing to meet and to attempt to resolve the dispute at a time and date being mutually agreeable to both Parties provided that such meeting shall take place within 14 (fourteen) calendar days from the date of the written invitation.
20.2 If the dispute has not been resolved by such negotiation referred to in clause 20.1, the Parties shall submit the dispute to the Johannesburg Magistrates Court or another court having jurisdiction.
21. WHOLE AGREEMENT, NO VARIATION OR AMENDMENT
21.1 This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof.
21.2 No amendment or consensual cancellation of this Agreement or any provision or term of this Agreement, or of any other agreement, bill of exchange, or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any other agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in writing and signed by the Parties to this Agreement. Any extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
21.3 No extension of time or waiver or relaxation of any of the provisions of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against the Service Provider, nor shall it operate so as to preclude the Service Provider thereafter from exercising its rights strictly in accordance with this Agreement.
21.4 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between the Subscriber and the Service Provider or not.
21.5 No failure, delay, relaxation or indulgence on the part of the Service Provider in exercising any power, right or privilege conferred upon it in terms of this Agreement shall operate as a waiver of any such further or similar powers, rights and privileges nor shall any such failure, delay, relaxation, or indulgence be deemed to be a novation of any of the terms or conditions of this Agreement. The acceptance by the Service Provider of any payment by the Subscriber after the termination of this Agreement shall not be deemed to be a waiver by the Service Provider of its rights or constitute a novation of this Agreement.
The Subscriber shall on demand pay all expenses incurred by the Service Provider in terms of this Agreement and paid by the Service Provider on behalf of the Subscriber or incurred by the Service Provider as a result of the Subscriber’s failure to comply with any provision of this Agreement, including tracing costs and all legal costs calculated on the scale as between attorney and its own client.