Subscriber Standard Terms and Conditions
1. Definitions
In the agreement, unless inconsistent or otherwise indicated by the context, the following terms shall bear the following meanings:
1.1 "agreement" the subscriber application form setting out the subscriber's details, together with all annexure's attached thereto, and the subscriber terms and conditions;
1.2 "charges" the connection charges, monthly service charges, usage charges and any other charges pertaining to the provision of the MDN services and any other services provided to the subscriber in terms of this agreement;
1.3 "connection charge" the once-off charge levied by Service Provider on the subscriber in consideration for activating the mobile access number;
1.4 "effective date" notwithstanding the date of signature of the application form, the date of commencement of the services;
1.5 "Initial Period" a period as indicated on the application form, commencing on the effective date;
1.6 "installation" the installation of terminal equipment on a location or subscriber laptop or similar device specified by the subscriber in an order;
1.7 "Internet" the interconnected system of networks that connect computers around the world via the TCP/IP protocol;
1.8 "licence" the national mobile data telecommunication licence granted to the Network Operator to provide a national mobile data telecommunication service by means of a mobile data network;
1.9 "MDN" the mobile data network established and operated by the Network Operator in terms of the licence;
1.10 "MDN services" broadband wireless Internet access services, value-added Internet Protocol ("IP") services, virtual private network ("VPN") services, corporate managed data network services, closed user group and video conferencing services made accessible to the subscriber by Service Provider in terms of this agreement;
1.11 "mobile access numbers" the mobile access numbers, IP address, unique user name or subscription numbers used to identify subscribers having access to the MDN or Mobile networks;
1.12 "Network Operator" or "WBS" Wireless Business Solutions (Proprietary) Limited which has granted Service Provider authorization to make the MDN services available to the subscriber; and or any mobile phone services.
1.13 "order" an order placed by a subscriber on Service Provider for the provision of the MDN services;
1.14 "Renewal Period" a period as indicated on the subscriber application form, commencing on the day immediately following the expiration of the Initial Period, or an anniversary of the expiration period, as the case may be;
1.15 "Service Provider" Wireless Business Solutions Service Provider (Pty) Ltd; or Authorized dealer, I4u or any Mobile services operator.
1.16 "subscriber" any party to whom the services are made available in terms of the agreement;
1.17 "terminal equipment" the type approved I-Burst or other applicable user terminals, including the antennas and communication cards used by a subscriber to send and/or receive any data signal via an MDN radio link or Mobile data sim cards, transfer and calls and may include any other special equipment provided by the Network Operator in order to facilitate any future enhanced services to subscribers.
Part 1: General terms and conditions
2. Commencement and termination
2.1 This agreement shall commence on the effective date and shall, subject to the provisions of clause 7 and 9 below, continue for the Initial Period, and thereafter continue automatically for an unlimited number of Renewal Periods unless terminated:
2.1.1 by the subscriber, on expiration of the Initial Period or a Renewal Period, as the case may be, by giving to Service Provider a written notice of termination not less than 30 and not more than 90 days before the expiration of the Initial Period or the Renewal Period, as the case may be; and/or
2.1.2 by the subscriber, within a period of 7 days from the effective date, should the subscriber not find the service fit-for-use, subject to a written explanation accepted by the management of the Service Provider; and/or
2.1.3 by Service Provider, on written notice to the subscriber in the event of the authorization issued by the Network Operator in terms of which Service Provider is authorized and empowered to give the subscriber access to the MDN services is terminated for whatsoever reason.
2.2 Notwithstanding the use of agents or other intermediaries (Delegated Service Providers) by Service Provider, the order by the subscriber is an offer made by the subscriber to Service Provider and will be considered once received by Service Provider. Service Provider's acceptance of the offer shall consist of the activation of the terminal equipment as contemplated in clause 2.1, and upon which activation this agreement shall become binding between Service Provider and the subscriber whether or not the subscriber was notified of the acceptance of the offer. The subscriber hereby expressly dispenses with notification of acceptance of the offer by Service Provider.
3. Supply and installation of terminal equipment and MDN services
3.1 The order placed by the subscriber on Service Provider is subject to Service Provider's approval in its sole discretion. If Service Provider does not approve the order, it shall not be under any obligation to the subscriber to give reasons for its decision.
3.2 Service Provider shall utilize its best endeavors to promptly comply with any supply and/or delivery and/or installation requirements recorded in the order but shall not be liable to the subscriber in the event that such supply and/or delivery and/or installation is delayed or cancelled, for whatsoever reason. Service Provider may in its discretion refer the subscriber to a third party who may undertake the installation of the terminal equipment in its own name and behalf and not as an agent of Service Provider.
3.3 The subscriber shall be responsible for obtaining all necessary approvals and authorities imposed by any competent authority and required for the purpose of any such supply and/or delivery and/or installation, and the subscriber hereby indemnifies Service Provider against any claim or liability suffered by Service Provider by reason of such approval and authorities not having been obtained.
3.4 All risk in and to the terminal equipment supplied and delivered by Service Provider to the subscriber shall pass to the subscriber on delivery.
3.5 If any terminal equipment is lost, stolen or damaged, the subscriber shall immediately notify Service Provider in writing and until such notification, the subscriber shall remain liable for all costs and charges pertaining to such terminal equipment. Service Provider shall as soon as reasonably possible replace the terminal equipment. The cost of this replacement equipment shall be for the subscriber’s account. Such loss, theft or damage and/or the replacement of the terminal equipment and/or the allocation of a new mobile access number for any reason, shall in no way be deemed to constitute a termination of this agreement which shall continue to be of full force and effect.
3.6 The subscriber hereby warrants and undertakes in favour of Service Provider that the subscriber:
3.6.1 shall not use nor allow the Services to be used for any improper, immoral or unlawful purpose, nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the Services;
3.6.2 shall only use the terminal equipment provided by Service Provider, and comply with relevant legislation and regulations imposed by any competent authority and all directives issued by Service Provider relating to the use of terminal equipment and the provision of services;
3.6.3 recognizes that no right, title or interest in the software contained in the terminal equipment issued to the subscriber vests in the subscriber;
3.6.4 shall not, nor permit any third party to reverse engineer, decompile, modify or tamper with the software contained in or pertaining to any terminal equipment.
4. Charges
4.1 In consideration for the provision of the MDN Services, terminal equipment and any other services supplied by Service Provider to the subscriber, the subscriber shall effect payment to Service Provider of the applicable charges, as detailed in the application form and whether or not the MDN Services have been, or are being utilized by the subscriber.
4.2 Service Provider may, by written notice to the subscriber, vary future charges, either in whole or in part, with effect from the date specified in such notice.
4.3 Unless otherwise agreed to by Service Provider in writing, the subscriber shall effect payment to Service Provider:
4.3.1 for the supply and delivery of terminal equipment and installation on presentation of invoice and against such delivery; payment due immediately upon delivery.
4.3.2 of monthly service charges monthly in advance and of all other charges, monthly in arrears, in either event in full, within 21 days from date of the relevant invoice;
4.3.3 at Service Provider's premises or at the bankers of Service Provider in Johannesburg. Where payment is made by the subscriber through a debit order, other electronic means or any other intermediary, the subscriber's bankers or other intermediaries shall act as the subscriber's agent and the subscriber shall have discharged its obligations only upon payment being received by Service Provider.
4.4 Notwithstanding the provisions of clause 4.3, Service Provider may at any time on reasonable written notice to the subscriber vary its invoicing and payment procedures and requirements.
4.5 In the event that Service Provider requires payment for the services provided to the subscriber to be made by debit order, the subscriber will commit a breach of this agreement if the subscriber:
4.5.1 cancels such debit order without the written consent of Service Provider;
4.5.2 changes his banking details upon which the debit order relies, without giving Service Provider prior notification of such change and providing Service Provider with the subscriber's new banking details;
4.5.3 the subscriber authorizes Service Provider to debit any bank account held by the subscriber for the costs owed by the subscriber to Service Provider in terms of this agreement. Reversals will be charged for.
4.6 The monthly statement shall be sent by Service Provider to the subscriber at the e-mail address supplied by the subscriber in the application form in writing to Service Provider. It shall be the duty of the subscriber to check the statement in order to ensure that the contents thereof are correct. Unless a query is raised in respect of the contents of the statement within 30 days from the date thereof, the contents of the statement shall be deemed to be correct.
4.7 Any migration from one package option to another shall for the duration of this agreement be subject to Service Provider approval in its discretion and Service Provider shall be entitled to levy fees for migrations, but which fees may not exceed the amounts approved or fixed by the responsible regulatory authority from time to time.
5. Suspension
5.1 Service Provider may at any time, without notice to the subscriber and in any manner whatsoever, suspend the subscriber's access to the MDN Services in the event that:
5.1.1 any modification, maintenance or remedial work is required to be undertaken pertaining in any manner whatsoever, to the MDN Services or the Network. Service Provider will endeavor to inform the subscriber timeously, in the event of planned maintenance;
5.1.2 the subscriber fails to perform any of his or her obligations, or breaches any terms of the agreement (in which event Service Provider may also suspend the subscriber's use of the terminal equipment).
5.2 Service Provider reserves the right to require the subscriber to effect payment of any applicable reconnection charges pursuant to the restoration of the MDN Services suspended in the circumstances contemplated in clause 5.1.2. In the event that the subscriber's access to the Network is suspended, the subscriber shall still be liable for the monthly service charges during any such period of suspension.
6. Limitation of liability
6.1 Without detracting from any of the other provisions of the agreement, Service Provider shall not be liable to the subscriber for any loss or damage suffered by the subscriber and whether the same is direct or consequential, in the event that:
6.1.1 Service Provider fails for any reason whatsoever to supply and/or deliver and/or provide installation of any terminal equipment either on the required date or at all; and/or
6.1.2 the MDN Services are interrupted, suspended or terminated for whatsoever reason; and/or
6.1.3 Service Provider fails to suspend the provision of the MDN Services to the subscriber in terms of an arrangement between Service Provider and the subscriber or after the subscriber has specifically requested Service Provider to do so in order to limit the charges; and/or
6.1.4 such loss or damage was caused by any negligent act or omission on the part of Service Provider, its employees or its agents.
7. Breach
7.1 In the event that the subscriber breaches any term of the agreement, or any warranty given by it hereunder, or fails to fulfil any obligation vesting upon them, including a failure to pay any amount owing to Service Provider on due date, then without prejudice to Service Provider other rights in terms of this agreement, Service Provider may forthwith and without notice to the subscriber either terminate this agreement or call for specific performance of all the subscriber's obligations an immediate payment of all sums of money owing by the subscriber whether or not then due in either event without prejudice to Service Provider right to seek such damages as it may have suffered by reason of such breach or failure.
7.2 Notwithstanding the aforegoing, Service Provider shall not be obliged to perform any of its obligations under this agreement and 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.
7.3 Service Provider shall be entitled forthwith without notice, to terminate this agreement in the event that the subscriber is sequestrated, liquidated or placed under judicial management, whether provisionally or finally, and whether voluntarily or compulsorily.
7.4 Without detracting from any of the other provisions of this clause 7, in the event of a breach of any provisions of this agreement or the subscriber prematurely terminating this agreement and Service Provider electing to cancel same, the subscriber shall be liable to effect payment to Service Provider of all the monthly service charges which would have been payable to Service Provider in respect of the remainder of the period of this agreement.
8. Insurance
8.1 Service Provider acts as a collection agent for insurance brokers and/or underwriters in respect of the optional insurance of the terminal equipment and related risks as referred to the schedule or application form. Service Provider shall not be liable to the subscriber under any policy issued or claim declined pursuant to the subscriber's election to take insurance as provided in the schedule.
8.2 Unless the subscriber specifically elects to take insurance for the terminal equipment and related risks or in accordance with the procedures introduced by Service Provider from time to time the subscriber shall not be covered in respect of the terminal equipment and related risks.
8.3 If at any stage before or after the subscriber elects to take insurance, the subscriber requests from Service Provider a summary of the terms and conditions of the applicable insurance policy, Service Provider shall use its best endeavors to furnish same to the subscriber as requested. It shall be the responsibility of the subscriber to obtain and familiarize himself with the terms and conditions of the insurance policy applicable.
8.4 It shall be the responsibility of the subscriber to ensure that the premiums in respect of the insurance policy are paid timeously and in full, and, if for any reason Service Provider omits to include insurance charges in a statement to the subscriber, the subscriber shall forthwith notify Service Provider of such omission Service Provider may rectify the omission by debiting the subscriber's account with any amounts in arrears, subject to any terms and conditions which may be applicable under the relevant policy.
8.5 Save as provided herein, any queries which the subscriber may have regarding or arising from the insurance of the terminal equipment and related risks, shall be directed to the insurance administrators or brokers, as the case may be whose particulars may be obtained by the subscriber from Service Provider.
9. General
9.1 In the event of the subscriber failing to effect payment of any amount owing by them to Service Provider on due date, then without derogating from Service Provider rights in terms of clause 7, the subscriber shall be liable to effect payment of interest to Service Provider on the amount so owing at the prime rate from due date to date of payment.
9.2 Unless specifically stated otherwise, all prices and charges set out in this agreement and any price list are inclusive of Value-Added Tax and exclusive any other applicable tax or duty, the liability of which shall vest with the subscriber.
9.3 The rights and obligations of the subscriber in terms of the agreement may not be ceded or delegated to any third party. The rights and obligations of Service Provider in terms of this agreement may be ceded and delegated by it to any other party on written notice to the subscriber.
9.4 Service Provider may change the terms and conditions of this agreement as a result of changes in taxes. laws, regulations, the terms and conditions of the licence issued to WBS, the terms and conditions of any agreement between WBS and Service Provider or any circumstances or events similar to the aforegoing. Service Provider shall notify the subscriber of any changes as contemplated herein in writing.
9.5 A certificate under the hand of any manager of Service Provider certifying the sum of any amount owing by the subscriber to Service Provider shall be prima facie proof of its contents and sufficient proof for the purposes of enabling Service Provider to obtain any judgment or order against the subscriber.
9.6 The subscriber hereby authorizes Service Provider to disclose the subscriber's name, address and personal details to any party whenever it is reasonably necessary for Service Provider to properly perform its functions or protect its interests, or for the purpose of enabling the Network Operator or Service Provider to provide emergency MDN Services to the subscriber, or directory or repair services and information to Network users generally.
9.7 In the event of Service Provider instituting legal proceedings against the subscriber to recover amounts due to Service Provider or take any other legal steps arising out of this agreement, the subscriber shall be liable for legal costs on the scale as between attorney and own client.
Part 2 – Conditions for sale of terminal equipment
10. Sale of terminal equipment and conditions applicable
10.1 The sale of terminal equipment by Service Provider to the subscriber at a subsidized price as set out in the Schedule and application form shall be subject to the following terms and conditions:
10.1.1 in the event of early termination of this agreement for whatsoever reason, Service Provider shall have the right to claim from the subscriber an amount equal to the amount by which the terminal equipment was subsidized by Service Provider at the time of sale of the terminal equipment and the subscriber shall be obliged to effect payment to Service Provider of the amount so claimed on demand; provided that if the subscriber fails to effect the payment so claimed by Service Provider, the subscriber shall be obliged forthwith to return the terminal equipment to Service Provider in good working order, and shall not be entitled to receive any refund therefore;
ownership in and to the terminal equipment supplied and delivered by Service Provider to the subscriber is reserved until payment of all amounts payable to Service Provider in respect of same as the terminal equipment has been subsidized, until the expiration of the Initial Period or the amount equal to the amount by which the terminal equipment has been subsidized has been paid by the subscriber to Service Provider;
10.1.2 all risk in and to the terminal equipment supplied and delivered by Service Provider to the subscriber shall pass to the subscriber on delivery;
10.1.3 Service Provider obligations in terms of any warranties pertaining to the terminal equipment shall be limited to the warranty provided by the manufacturer of the terminal equipment. All transport costs shall be for the subscriber's account.
10.2 Should the subscriber, upon purchase of the terminal equipment discover any fault or defect in the terminal equipment, the subscriber shall within 3 days of purchase return the terminal equipment to Service Provider in the same condition and packaging as the terminal equipment was purchased along with the proof of purchase. Service Provider shall replace the damaged of faulty terminal equipment. In the event of the subscriber not returning the terminal equipment packaging to Service Provider, Service Provider may charge the subscriber a packaging fee.
10.3 If the subscriber migrates from one package option to another. Service Provider may vary the amount of the subsidy applied at the time of the sale of the terminal equipment to the subscriber. If the subsidy amount is reduced, Service Provider shall be entitled to require the subscriber to pay to Service Provider the amount by which the subsidy has been reduced. It being understood that this charge does not constitute a migration fee, but enables Service Provider to adjust the subsidy amount to the amount that would have been applicable at the time of sale of the terminal equipment if the subscriber had first chosen the package option to which the subscriber is changing.
11. Miscellaneous matters
11.1 Postal address:
11.1.1 Any written notice in connection with this agreement may be addressed:
11.1.1.1 in the case of Service Provider to:
Wireless Stouf Communications (Pty) Ltd
Address: PO Box 1595, Glenvista 2058
Fax No: 0866155158
marked for the attention of The Financial Director
11.1.1.2 in the case of the subscriber to the postal address and fax number set out in the subscriber details application form to which these standard terms and conditions apply, and marked for the attention of the subscriber.
11.1.2 The notice shall be deemed to have been duly given 7 days after posting, if posted by registered post to the parties addressed in terms of this sub-clause.
11.1.3 On delivery if delivered to the parties' physical address in terms of either this sub-clause or the next sub-clause dealing with service of legal documents.
11.1.4 On dispatch if sent to the parties' then fax number and confirmed by registered letter posted no later than the next business day.
11.1.5 Unless the addresser is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
11.1.6 A party may change that parties' address for this purpose by notice in writing to the other party.
11.2 Address for service of legal documents
The parties choose the following physical addresses at which documents and legal proceedings in connection with this agreement may be served (that is their domicilia citandi et executandi):
11.2.1.1 in the case of Service Provider to:
Stouf Communications (Pty) Ltd
Address: 14 Esmarelda Crescent
Robindale
Fax No: 0866155158
marked for the attention of The Financial Director
11.2.1.2 in the case of the subscriber, to the physical address and fax number set out in the subscriber details application form to which these standard terms and conditions are attached and marked for the attention of the subscriber.
11.2.2 A party may change that party's address for this purpose to another physical address in the Republic of South Africa by notice in writing to the other party.
11.3 Entire contract
The agreement contains all the express provisions agreed on by the parties with regard to the subject matter of the agreement and the parties waive the right to rely on any alleged express provision not contained in this agreement.
11.4 No representations
Neither party may rely on any representation which allegedly induced that party to enter into this agreement, unless the representation is recorded in this agreement.
11.5 Variation, cancellation and waiver
No contract varying, adding to, deleting from or canceling this agreement, and no waiver of any rights under this agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.
11.6 Indulgences
If either party at any time breaches any of that party's obligations under this agreement, the other party ("the aggrieved party"):
11.6.1 may at any time after that breach exercise any right that became exercisable directly or indirectly as a result of the breach, unless the aggrieved party has expressly elected in writing of a clear and unambiguous conduct, amounting to more than mere delay, not to exercise the right. (If the aggrieved party is willing to relinquish that right the aggrieved party will on request do so in writing.) In particular, acceptance of late performance shall for a reasonable period after performance be provisional only, and the aggrieved party may still exercise that right during that period;
11.7 shall not be stopped (ie prevented) from exercising the aggrieved party's rights arising out of the breach, despite the fact that the aggrieved party may have elected or agreed on one or more previous occasions not to exercise the rights arising out of any similar breach or breaches.
11.8 Applicable law
This agreement shall be interpreted and implemented in accordance with the laws of the Republic of South Africa.