In this agreement unless the context indicates a contrary intention, the following words and expressions will have the following meanings
“Customer” means the person or entity appearing as such on the application form to which this agreement is attached.
“Charges” means the subscription charges/charge rates/purchase price/rental representatives renewal fees/reconnection fees/cancellation fees/transfer fees and/ or any other fees which may be charged in respect of the equipment/service, set out in the price list as at the commencement date, or I n terms of any change to the price list effected by STM in terms of clause 5 from time to time.
“Commencement date” means the date on which the customer received his first usage invoice.
“Confidential information” means: Any information of whatever nature, which has been or may be obtained by the customer from STM, whether in writing or in electronic form or pursuan t to discussions between the parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas, analyses, concepts, complications, studies and other material prepared by or in the possession or control of the customer which contain or otherwise reflect or are generated from any such information as is specified in t his definition;
“Copyright” means all rights of copyright now or in the future in or in relation to the equipment/services, including bu t not limited to drawings, sketches, flow charts and
“Equipment” means the telecommunications/Internet based/related hardware and software apparatus and equipment sold or leased to the customer, stipulated in section 2 on the application form;
“Intellectual property rights” means all present and future rights, including but not limited to copyright, title, trademarks, patents, internet protocol addresses, direct dialling numbers in or in relation to the equipment/services and other rights which inward may in the future be based on the equipment/services.
“Price list” means STM’s standard price list and rate sheet, applicable to each of the equipment and services provided by STM;
“Services” means the provision o f those services requested by the customer and appearing as such on the application form;
“STM” means that company providing the equipment / services required by the customer and appearing as such on the application form;
“Application form” means the application form to which this agreement is attached and signed by the customer.
“This agreement” means these terms and conditions together with all annexures and schedules attached.
2. Equipment and services
STM hereby agrees to provide, and the customer hereby accepts the provision of the equipment/services on the terms and conditions of this agreement.
After the initial period this Agreement shall continue to the next anniversary and shall continue to do so indefinitely until terminated by either party giving the other written notice of termination provided tha t such notice shall not be effective if given less than 90 (ninety) days before the end of the initial period or of any anniversary date, as the case may be.
4. If the customer terminates this agreement, or if it is terminated by STM;
4.1 Prior to the completion thereof due to a breach occasioned by the customer or prior to the expiry of the period, the customer will immediately be liable to STM for all charges in respect of the remainder of the contract, in the case of variable charges, the amount owing will be calculated on the basis of the average charges billed to the customer over the ast three -month period of normal billing prior to the termination of the contract multiplied by the remaining period of the contract. All calls within the contract period will be routed through STM’s network.If it is detected that the customers calls are not routed through STM’s network due to the equipment being disconnected, or having any parallel equipment installed without STM’s prior knowledge or permission, STM has the right to see it as a cancellation.
4.2 STM Comm. CC undertakes to use all reasonable endeavours to keep the service available and uninterrupted at all times. It is understood however that the infrastructure that offer “last mile” services for this solution is dependent on Telkom’s, Vodacom and similar services provider’s infrastructure, which is a ” best effort” service.The customer indemnifies STM Comm. CC of any claim as a result of a disruption of these services.
5. Payment of charges
As consideration for the equipment/services provided to the customer, the customer will pay to STM the charges set out in the price list, on the following terms;
5.1 The customer accepts that STM will provide monthly electronic invoices.
5.2 The customer will pay STM by the 1st of every month.
5.3 VAT is payable on all charges at the ruling rate at the applicable time.
5.4 The payment by the customer will be made without deduction free of exchange or set-off by way of debit order, or in such other manner as set out on the application form.
5.5If the customer fails to pay amounts owing to STM on due date, then without prejudice to any other rights which STM may have:
5.5.1 The customer will be liable to pay interest at the rate of 2.5% per month on such outstanding amounts calculated from due date until date of payment;
STM will be entitled to take all such steps, without notice to the customer, as may be necessary to recover such amount, and the customer will be liable to pay all costs incurred in recovering such outstanding amounts.
6. The charges
The charges set out in the price list are subject to increases in the cost price of the varied equipment/services, including currency fluctuations, and may otherwise be by STM, in it’s sole discretion, upon 30 days prior notice to the customer
The equipment will remain the property of STM for the duration of this agreement, and must immediately be returned to STM upon;
7.1 Termination, for any reason, of this agreement; or
7.2 The insolvency, sequestration or liquidation of the customer.
7.3 No foreign hardware or software will be allowed to be connected or installed on STM hardware.
7.4 Only STM approved technicians will be allowed to service and do maintenance on STM hardware.
7.5 The Customer acknowledges that the equipment is movable, is intended to remain movable, and shall under no circumstances accede to any immovable property.
7.6 The Customer shall not remove the equipment to different premises without prior written notice to STM Comm of the details of such move and of the Landlord (if applicable) of the premises to which the equipment has been allocated.
8. Delivery and risk
Any delivery note (copy or original) signed by the customer (included but not limited to employees or agents of the customer) will be conclusive proof that delivery of the equipment was made to the customer.
8.1 The risk of damage to, destruction or theft of all equipment:
8.2 In the event that the equipment or any part thereof is lost, stolen damaged or damaged due to an act of God, the customer will immediately notify STM thereof in writing and the customer will remain liable to STM for all charges. Itis the customer’s responsibility to insure the STM equipment.
9. Customer’s undertakings
The Customer Undertakes:
9.1 To maintain the equipment in good working condition and not to modify or permit the modification of the equipment;
9.2 To use the equipment in accordance with manufacturer’s instructions and for the purpose and in the manner for which they were intended;
9.3 Not to use or permit use of the equipment/service in a manner, which is defamatory, deceptive, unlawful orfraudulent;
9.4 Not to use or permit use of the equipment/service in a manner, which is intended to threaten, harass or intimidate any person;
9.5 To comply with all regulatory obligations that may now or in the future be by the body under whose authority the regulation of the service/ equipment falls, including but not limited to the carrying of voice over internet protocol in the form as defined by the regulatory authority from time to time;
9.6 STM’s link installed and/or converted is intended for STM’s voice and data only.Provision is made for bandwidth as per the application form
9.7 Any excess bandwidth used by the customer will be for ther customers account shall be payable to STM.
10. Availability of services
STM will use reasonable endeavours to keep the services available at all times. However, the customer acknowledges and agrees that STM will not be liable to the customer or to any other person, and the customer hereby indemnifies and holds STM free from, any claim, loss or damage, whether foreseeable or not, whether direct or consequential arising from:
10.1 Any fact or circumstances beyond the reasonable control of STM;
10.2 Any downtime, outage, interruption in or unavailability of the services and/or the equipment attributes to any cause, including but not limited to repairs and maintenance, any breakdown of whatever nature and howsoever arising to any equipment /service provided by Telkom as well as by any other external communication networks to which the equipment/services are connected.
Where possible, STM will use reasonable endeavors to notify the customer of any maintenance or repairs which may result in the unavailability of the equipment / services, but does not guarantee notice.
11. Intellectual property rights
The customer acknowledge that any and all of the intellectual property rights used by or allocated to the customer or embodied in or in connection with the equipment / services are and will remain the sole property of STM. The customer acknowledges that the imposition of regulatory obligations by the body under whose authority the equipment /service may necessitate amendments to be effected to this agreement, and the customer consents to STM effecting such amendments without prior notice.
STM hereby reserves the right to take whatever action STM finds necessary to preserve the security and reliability of the equipment/services.The customer is prohibited from in any way tampering with any equipment provided by STM and from using the equipment/services to tamper with system resources or accounts on computers at STM or at any other site.
The customer hereby indemnifies and holds STM, it’s employees, and agents harmless against any and all losses, injury, damage, penalties and/or claims of whatsoever nature and howsoever arising from or in connection with the customer’s use of the equipment/service.
If the customer is in default of any of the customer’s obligations in terms of this agreement, including but not limited to any payments due to STM, STM will be entitled, without prejudice to any of its rights that it may have in law to:
14.1 Immediately suspend the services and/or repossess the equipment provided to the customer by STM;
14.2 Claim immediate payment of all amounts payable in terms of this agreement, whether or not such amounts are due; and/or
14.3 Immediately give written notice the signatory of the said breach and the signatory shall have to opportunity to reinstate the said contract within 20 days from written notice. Should the signatory not respond to the aforementioned notice. STM will the full right to cancel the contract
14.4 All mounts already paid by the customer and recover all legal cost, including cost on attorney and own client scale (collection, commission, tracing fee and other fees of disbursements incurred by the service provider in collections of any amount owing by the signatory to STM, including value added tax where applicable.
14.5 Share credit history with other service provider and credit bureaus
15. Reconnection of equipment and/or services
STM reserves the right to charge a fee for the reconnection of any equipment/services disconnected/ removed by the customer , it’s employees or agents for any reason whatsoever.
16. Trial periods
The customer will be liable for all traffic charges incurred by it during the course of any trial periods agreed upon between the parties. Refer to application form for trial period agreed upon.
17. Support services
STM will provide support services in respect of the equipment/services to the customer during weekday office hours. A call out service is available, for which the customer will be liable for charges on the basis set out in he price list.
18. Limitation of liability
STM will not be liable:
18.1 Whether in contract or depict or otherwise for any loss or damage (direct, indirect, consequential or otherwise) caused to the customer or any other person arising from the provisions or implementation of this agreement; and
18.2 Any act or omission, whether negligent or otherwise, of any of it’s employees, dealers, agents or other representatives arising from this or the implementation of this agreement.
The customer undertakes to keep confidential and not to disclose to any other person all confidential information or documents relating to or in connection with this agreement or relating to STM.
20. Force Majeure
STM will not be liable for any breach of this agreement if such breach arises as a result of circumstances beyond STM’s control, including but not limited to any act of God, government or any other administrative act or omission, sabotage, riot, explosion, controls, restrictions, prohibitions.
Except for variations in the price list by STM, no amendment, interpretation or waiver of any of the provisions of this agreement will be effective unless reduced to writing and signed by the customer and an authorized director or employee from STM.
The failure to enforce or to require the performance at any time of any of the provisions of this agreement will not be construed to be a waiver of such provisions, and will not affect either the validity of this agreement or any part thereof or the right of any party to enforce the provisions of this agreement.
23. Entire agreement
This agreement contains the entire agreement of the parties with respect to the subject matter of this b agreement and supersedes all prior agreements between the parties, whether written or oral.
24. Governing law
This agreement and the relationship of the parties in connection with the subject matter of this agreement will be governed and determined in accordance with the laws of South Africa.
In the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision of this agreement, and this agreement will be construed as if such invalid, illegal or unenforceable provision was not a part of this agreement, and the agreement will be carried out as near as possible in accordance with its original terms and intent.
The signatory warrants that he / she has the authority necessary to enter into this agreement and to do all things necessary to procure the fulfilment of the customer’s obligations in terms of this agreement.
Signatory consent in terms of Section 45 of the Magistrate’s Court Act 32 of 1944, as amended to STM taking any legal proceedings for enforcing any of it’s rights under this Services or Goods for recovery of monies secured under this services or goods deliver In the Magistrate’s Court for any district having jurisdiction in respect of the signatory by virtue of Section 28(1) of the aforesaid Act. STM, is nevertheless, as its option, entitled to institute proceedings in any division of the High Court which has jurisdiction
The signatory binds him/herself as surety for and co-principal debtor in solidium with the customer to STM for the due and punctual performance by the customer of all its obligations to STM whether presently due, owning and payalbe or becoming due, owning and payable in the future. This Suretyship is given as a continuing covering Suretyship. In the event of STM having to institute action against the signatory, STM may recover legal costs on a scale as between attorney and client.
29. Ownership of equipment
STM offers a Rental, the equipment remains STM’s and if the customer should cancel this agreement for whatsoever reason, STM will promptly remove the equipment from the customer’s premises.
The maintenance agreement with STM covers labor and only cover the replacement of equipment if the equipment is damaged due to lightning etc. STM will not replace the equipment if the equipment is damaged due to any malicious acts, acts of sabotage or theft, and in this case will be for the clients account.
31. Supply and installation of Terminal Equipment and services
The order placed by the customer to STM is subject to STM’s approval in its sole discretion. If STM does not approve the order, it shall not be under any obligation to the customer to give reasons for its decision.
STM shall utilize its best endeavors to promptly comply with any supply/ delivery/installation requirements recorded in the order but shall not be liable 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 STM. The customer shall be responsible for obtaining all necessary approvals and authorities imposed by any competent authority and required for the purpose of any such supply/ delivery/ installation, and the customer hereby indemnifies STM against any claim or liability suffered by STM by reason of such approval and authorities not having been obtained. The customer may not cancel or terminate the agreement and demand reimbursement for any damages of whatsoever nature as a result of the customer’s relocation to an area outside of STM’s coverage
32. STM Voice and Data Services
The customer agrees that:
31.1 A debit order is mandatory;
31.2 Voice and Data is a joint package and one cannot be taken without the other.
31.3 STM may need to supply cards for the customer’s PABX from time to time, in this case, any cards supplied will remain the property of STM. It will be the customers responsibility to inform STM of any upgrades to their telephone system
33. Fair Usage Policies
Fair usage policies on all UNCAPPED services apply subject to that specific service
34. Acceptance and order
33.1 In the event that the Customer terminates the provisioning and supply of any products and services prior installation or activation of services STM Comm and the Customer, the Customer will be liable for all wasted costs that STM Comm and its duly authorised appointed agents/sub-contractors incur in providing products and services as part of the solution and shall make payment in respect thereof to STM Comm upon demand.
33.2 The Customer is responsible for the cancellation of all services/ Equipment supply or rental supplied by third-party suppliers, and Indemnifies STM against any liability, claims, loss or damages for any third-party supplier service/equipment supply or rental as a result of the cancellation not being processed and any charges to the Customer arising from such non cancellation
34.1 The amount due and owing by the customer to STM at any particular time may be determined and proved by a certificate issued and signed by STM (or by one of STM’s directors, whose appointment, qualifications and authority need to be proved).
34.2 Any printout of computer evidence concerning the customer’
will indebtedness tendered by STM will be admissible evidence and no party object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence.
36. Acceptance by Client
The signatory acceptance of the Facility and these terms and conditions shall be signified by; Signing of the application form Signing of the terms and conditions Authority and mandate for Payment Instructions Financing application Acceptance of Order
37. Change of management in legal entities, partnership, trust etc.
A company, close corporation, trust or partnership, no change in the directors, shareholders, members’ trustees or partners, as the case may be, of you or any surety, may take place without the prior written consent of STM which consent will not be unreasonable withheld
38. Record of telephonic Conversation
For security reasons all telephonic conversations are recorded accordingly.
No relaxation or indulgence granted by STM to signatory shall be deemed to be a novation of any of the terms and conditions of this Services/Facility
The signatory choose, for the purpose of legal proceedings and for the purposes of giving any notice in terms of the sevices, including any services letter the following address; the address, being a physical in the Republic of South Africa and including fax number and email address, set out in the application form or any services letter address by STM to the signatory from time to time, which address the signatory select as his/her chos domicillium citandi er executandi on the application
Any of the following acts will place the signatory in default of the said contract if signatory not rectify within 20 days of receiving written notice
1. Failing to pay any amount owing to STM when due
2. Signatory sells the whole or a major portion of he/she business
3. Signatory commit an act of insolvency mentioned in the Insolvency Act 24 of 1936 as amended
4. Signatory furnish incorrect information that would have influenced STM decision regarding the said agreement