Terms & Conditions


Definitions


1 In this agreement, unless the context indicates a contrary intention, the following words and expressions will have the following meanings:

1.1 “customer” means the person or entity appearing as such on the subscription form to which this agreement is attached;

1.2 “charges” means the subscription charges, charge rates, purchase price, rental rates, renewal fees, reconnection fees, cancellation fees, transfer fees and/or any other fees which may be charged in respect of the equipment and/or service, set out in the price list as at the commencement date, or in terms of any change to the price list effected by SKYTEC WIRELESS in terms of clause 5 from time to time;

1.3  “commencement date” means the date on which Skytec Wireless signs this agreement;

1.4  “confidential information” means:

1.4.1 any information of whatever nature, which has been or may be obtained by the customer from SKYTEC WIRELESS, whether in writing or in electronic form or pursuant 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;

1.4.2  analyses, concepts, compilations, studies and other material prepared by or in possession or control of the customer which contain or otherwise reflect or are generated from any such information as is specified in this definition;

1.5  “copyright” means all rights of copyright now or in the future in or in relation to the equipment and/or services, including but not limited to drawings, sketches, flow charts and designs relating thereto;

1.6  “equipment” means the telecommunications and/or internet-based and/or related hardware and software apparatus and equipment sold or leased to the customer, stipulated in section 2 on the subscription form;

1.7 “intellectual property rights” means all present and future rights, including but not limited to copyright, title, trademarks, patents, internet protocol addresses, direct inward dialling numbers, , in or in relation to the equipment and/or services and other rights which may in the future be based on the equipment and/or services,

1.8  “price list” means SKYTEC WIRELESS’ standard price list and rate sheet, applicable to each of the  equipment and services provided by SKYTEC WIRELESS;

1.9  “services” means the provision of those services requested by the customer and appearing as such on the subscription form;

1.10 “service provider” is the company providing the equipment and/or the services required by the customer and appearing as such on the subscription form;

1.11  “subscription form” means the  subscription form to which this agreement is attached and signed by the customer;

1.12  “this agreement” means these terms and conditions together with all annexures and schedules attached.

Equipment and services

 

2  SKYTEC WIRELESS hereby agrees to provide, and the customer hereby accepts the provision of the equipment and/or the services on the terms and conditions of this agreement.


Duration

 

3 This agreement will commence on the commencement date, and unless terminated in accordance with any other provision of this agreement, will endure for the initial period set out in the subscription form, and thereafter indefinitely until terminated by either party on not less than one calendar months’ prior written notice to the other party.


Payment of charges

 

4 As consideration for the equipment and/or services provided to the customer, the customer will pay to SKYTEC WIRELESS the charges set out in the price list, on the following terms:

4.1 SKYTEC WIRELESS will invoice the customer in advance on a monthly basis.

4.2 The  customer will pay SKYTEC WIRELESS within 7 (seven) days of the date of the invoice.

4.3 Where applicable, value added tax is payable on all charges at the ruling rate at the applicable time unless stated otherwise.

4.4 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 subscription form.

4.5 If the customer fails to pay amounts owing to SKYTEC WIRELESS on due date, then without prejudice to any other rights which SKYTEC WIRELESS may have:

4.5.1 the customer will be liable to pay interest at the rate of 2,5% (two comma five percent) per month on such outstanding amounts calculated from due date until date of payment; and

4.5.2 SKYTEC WIRELESS 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.

 

5 The charges set out in the price list are subject to increases in the cost price of the equipment and/or services, including currency fluctuations, and may otherwise be varied by SKYTEC WIRELESS, in its sole discretion, without prior notice to the customer.


Equipment

 

6  Unless purchased by the customer, the equipment will remain the property of SKYTEC WIRELESS for the duration of this agreement, and must immediately be returned to SKYTEC WIRELESS upon:

6.1 termination, for any reason, of this agreement; or 

6.2 the insolvency, sequestration or liquidation of the customer.

 

7 If purchased by the customer:

7.1 the equipment is sold voetstoots; and

7.2 ownership of the equipment vests in SKYTEC WIRELESS until such time as  the customer pays to SKYTEC WIRELESS all costs and charges in respect of such equipment.


Delivery and risk

 

8 Any delivery note (copy or original) signed by the customer (including but not limited to employees or agents of the customer) will be conclusive proof that delivery was made to the customer.

 

9 The risk of damage to, destruction or theft of all equipment, whether or not purchased by the customer:

9.1 in the case where the equipment is delivered to the customer, passes to the customer on the date of delivery, and, where possible, the customer undertakes to comprehensively insure the equipment;

9.2 in the case of any other equipment belonging to the customer and delivered to SKYTEC WIRELESS to enable the provision  of the service to the customer, remains with the customer.

 

10 In the event that the equipment, or any part thereof, is lost, stolen or damaged, the customer will immediately notify SKYTEC WIRELESS thereof in writing and the customer; will remain liable to SKYTEC WIRELESS for all charges incurred in respect of or for the use of such equipment until SKYTEC WIRELESS procures the suspension of the services in respect of such equipment.


Customer’s undertakings

 

11 The customer undertakes:

11.1  to abide by and conform to the Acceptable use policy;

11.2  not to use or permit use of the equipment and/or services for any unlawful or improper purpose, including but not limited to the hosting of pornographic material, spamming, hacking and unsolicited mailing;

11.3  to maintain the equipment in good working condition and not to modify or permit the modification of the equipment;

11.4  to use the equipment in accordance with manufacturer’s instructions and for the purpose and in the manner for which they were intended;

11.5  not to use or permit use of the equipment and/or service in a manner which is defamatory, deceptive or fraudulent;

11.6  not to use or permit use of the equipment and/or service in a manner which is intended to threaten, harass or intimidate any person;

11.7  to comply with all regulatory obligations that may now or in the future  be imposed by the body under whose authority the regulation of the service and/or 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;

11.8  to abide by all laws applicable to the intellectual property rights of any and all data and/or information retrieved from the equipment and/or service;

11.9  not to resell, give or make available any information retrieved from the equipment and/or service;

11.10  to maintain the confidentiality of any information retrieved from the equipment and/or service;

11.11  not to resell, give or make available the equipment and/or the service, without the express written authorisation of SKYTEC WIRELESS.


Availability of services

 

12 SKYTEC WIRELESS will use reasonable endeavours to keep the services available at all times. 

 

13 However, the customer acknowledges and agrees that SKYTEC WIRELESS will not be liable to the customer or to any other person, and the customer hereby indemnifies and holds SKYTEC WIRELESS free from, any claim, loss or damage, whether foreseeable or not, whether direct or consequential arising from:

13.1  any fact or circumstances beyond  the reasonable control of SKYTEC WIRELESS;

13.2  any downtime, outage, interruption in or unavailability of the services and/or the equipment attributable to any cause, including but not limited to repairs and maintenance, any breakdown of whatever nature and howsoever arising to any equipment and/or service provided by a network operator as well as by any other external communication networks to which the equipment and/or services are connected.

 

14. Where possible, SKYTEC WIRELESS will use reasonable endeavours to notify the customer of any maintenance or repairs which may result in the unavailability of the equipment and/or services, but does not guarantee notice.


Intellectual property rights

 

15. The customer acknowledges 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 and/or services are and will remain the sole property of SKYTEC WIRELESS or it’s preferred suppliers.


Regulatory compliance

 

16. The customer acknowledges that the imposition of regulatory obligations by the body under whose authority the equipment and/or service falls may necessitate amendments to be effected to this agreement, and the customer consents to SKYTEC WIRELESS effecting such amendments without prior notice.


Security

 

17. SKYTEC WIRELESS hereby reserves the right to take whatever action SKYTEC WIRELESS finds necessary to preserve the security and reliability of the equipment and/or services.

 

18. The customer is prohibited from in any way tampering with any equipment provided by SKYTEC WIRELESS and from using the equipment and/or services to tamper with system resources or accounts on computers at SKYTEC WIRELESS or at any other site.


Indemnity

 

19. The customer hereby indemnifies and holds SKYTEC WIRELESS, its 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 and/or service.


Indebtedness

 

20. The amount due and owing by the customer to SKYTEC WIRELESS at any particular time may be determined and proved by a certificate issued and signed by SKYTEC WIRELESS (or by one of SKYTEC WIRELESS’s directors, whose appointment, qualification and authority need not be proved).

 

21. Any printout of computer evidence concerning the customer’s indebtedness tendered by SKYTEC WIRELESS will be admissible evidence and no party will object to the admissibility of such evidence purely on the grounds that such evidence is computer evidence.


Breach

 

22 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 SKYTEC WIRELESS, SKYTEC WIRELESS will be entitled, without prejudice to any of its rights that it may have in law to:

22.1  immediately suspend the services and/or repossess the equipment provided to the customer by SKYTEC WIRELESS;

22.2  claim immediate payment of all amounts payable in terms of this agreement, whether or not such amounts are due; and/or

22.3  immediately terminate this agreement, retain all amounts already paid by the customer and recover all legal costs, including costs on the attorney and own client scale.


Pledge

 

23. The Customer hereby pledges all of the customer’s equipment delivered to, or in SKYTEC WIRELESS’s possession, as security for any amounts which may be owing to SKYTEC WIRELESS from time to time.


Limitation of liability

 

24  SKYTEC WIRELESS will not be liable:

24.1  whether in contract or delict 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

24.2  any act or omission, whether negligent or otherwise, of any of its employees, dealers, agents or other representatives arising from this or the implementation of this agreement.


Confidentiality

 

25. 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 SKYTEC WIRELESS.


Force Majeure

 

26. SKYTEC WIRELESS will not be liable for any breach of this agreement if such breach arises as a result of  circumstances beyond SKYTEC WIRELESS’ control, including but not limited to any act of God, government or any other administrative act or omission, sabotage, riot, explosion, controls, restrictions, prohibitions.


Amendments

 

27.  Except for variations in the price list by SKYTEC WIRELESS, 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 authorised director or employee from SKYTEC WIRELESS.


Enforcement

 

28. 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.


Entire agreement

 

29. This agreement contains the entire agreement of the parties with respect to the subject matter of this agreement and supersedes all prior agreements between the parties, whether written or oral, with respect to the subject matter of this agreement.


Governing law

 

30. 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.


Severability


31. 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.


Authority

 

32. 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.


AdmirorFrames 2.0, author/s Vasiljevski & Kekeljevic.
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