1.
INTRODUCTION
1.1.
These general terms, any applicable special terms set out below or separately agreed with you, your Order Form, applicable 4ZA.CO.ZA tariff, service plan and policies referred to in the terms (together, the "Terms") set out the legal relationship between you and 4ZA.CO.ZA. Together, they govern all the services provided by 4ZA.CO.ZA and your use of these services. AD-Work Advertising t/a 4ZA.CO.ZA is a registered company in South Africa (CK: 2008/242198/23) with its registered address at 29 Botha Street, Goodwood.
2.
ORDER, INSTALLATION and ACTIVATION
2.1.
On the date you place an order you offer to purchase the relevant Service from 4ZA.CO.ZA under these Terms. By placing an order you agree that 4ZA.CO.ZA, or third parties on 4ZA.CO.ZA's behalf, may carry out credit checks on you. Your order can be accepted or rejected by 4ZA.CO.ZA at its discretion. There may be a waiting list for Services and 4ZA.CO.ZA will give you an estimated installation or activation date which is subject to change.
2.2.
4ZA.CO.ZA (or other companies or organizations on 4ZA.CO.ZA's behalf) will need to visit your premises to carry out tests, provisioning or activation and you agree to co-operate and assist. 4ZA.CO.ZA cannot guarantee exact times of visits and is not liable for the consequences of delay. As a service provider 4ZA.CO.ZA only delivers its services to the existing Cable & Wireless telephone socket at your home or business or to the internal access point installed by 4ZA.CO.ZA. Unless agreed with you, or unless it is part of the Service, we are not responsible for the installation of a Cable & Wireless line, any internal wiring, additional phone sockets or extension cables. During activation of your order you may temporarily lose the use of your other telecommunications services.
2.3.
You agree, at your own expense, to be responsible for all customer site preparation activities necessary for installation of the Service. You are responsible for ensuring that your computer system meets the minimum system requirements associated with the Service. You are responsible for safeguarding your system from theft, unauthorized use and system corruption. You are responsible for providing a necessary electricity supply for all Equipment. You agree that you will pay for installation and Equipment prior to commencement of the Services.
2.4.
If any property will be affected by the installation of Equipment, you agree to provide 4ZA.CO.ZA with written permission from the property owner in advance of installation. This is particularly important when Equipment will be installed inside or outside a rented property or block of flats/apartments.
2.5.
4ZA.CO.ZA is not responsible for the installation, maintenance, compatibility or performance of any third party equipment or software not provided by 4ZA.CO.ZA, and if such third party equipment or software impairs the Service, (i) you remain liable for payment of all Service Charges, and (ii) if it is likely to cause hazard or service obstruction, you will eliminate such likelihood at 4ZA.CO.ZA's request.
2.6.
4ZA.CO.ZA's Service includes the configuration and set up of the installed Equipment and connection to the 4ZA.CO.ZA Service in accordance with our published or agreed specification only. It does not include any element of audit, design or interconnection of your equipment and 4ZA.CO.ZA makes no representation or warranty about the interworking, interoperability or compatibility of the installed Equipment with your equipment or end to end system functionality. You accept responsibility for your own equipment, connection to any 4ZA.CO.ZA installed Equipment and system functionality.
2.7.
4ZA.CO.ZA may refuse to provide the Services and/or end the contract with you immediately and recover all Equipment if you fail a credit check, incorrect payment details have been provided to 4ZA.CO.ZA, you are not within a geographic area covered by 4ZA.CO.ZA or technical issues prevent, delay or degrade the activation or provision of Service.
2.8.
You may cancel your contract with 4ZA.CO.ZA prior to installation by sending 4ZA.CO.ZA a letter, fax or e-mail. 4ZA.CO.ZA will refund any money paid by you but reserves the right to charge a reasonable administrative fee if set-up work (such as site survey, account set-up etc.) has already been carried out.
2.9.
If you wish to change locations (e.g. you move house/offices), you must arrange with 4ZA.CO.ZA 15 working days prior to the change for a site survey and new installation to be carried out. There will be a charge for this service. Please note that Services may not be available in the new location. You will remain bound by the Minimum Term if you have agreed to a Service with a Minimum Term. Please consider this when choosing which Service to subscribe to.
3.
EQUIPMENT
3.1.
4ZA.CO.ZA provides different equipment ("Equipment") under different terms depending on the Services you order. Some Equipment may be provided by 4ZA.CO.ZA as part of your Service; other Equipment will be purchased by you and remains your responsibility (not 4ZA.CO.ZA's responsibility). Different warranty terms will apply depending on the circumstances. We have set out the relevant terms in the Equipment Policy, which forms part of these Terms.
4.
SERVICE
4.1.
4ZA.CO.ZA shall use reasonable endeavors to ensure that any Service provided to you by 4ZA.CO.ZA ("Service") shall be provided in accordance with 4ZA.CO.ZA's description from time to time of such Service and using the reasonable skill and care of a competent Internet Service Provider of similar Services.
4.2.
4ZA.CO.ZA may from time to time make changes to its network or the technical specification of a Service. If these changes will materially affect the Service, 4ZA.CO.ZA will contact you.
4.3.
It is technically impracticable for 4ZA.CO.ZA to provide a fault-free Service due to factors including (amongst other things) adverse weather and electromagnetic conditions, adverse local conditions impacting wireless performance (e.g. interference, vegetation, building construction), telephone line age/quality, satellite provider performance, international internet congestion, name server issues, performance of other internet service and network providers, file download size, internet congestion, your computer settings and optimization (including whether your equipment is free of viruses or other drains on system resources), browser performance, the performance of networks/servers to which you connect, and appropriate prioritization of internet traffic.
4.4.
Published speeds of service are maximum speeds only. The speed you experience when using the Services may be affected by factors including (amongst other things) your distance from local and national telephone exchanges, telephone line age/quality, satellite provider performance, international internet congestion, name server issues, performance of other internet service and network providers, file download size, internet congestion, any published contention ratios applicable to the Services, your computer settings and optimization (including whether your equipment is free of viruses or other drains on system resources), browser performance, bandwidth requirements of your computer applications, the performance of networks/servers to which you connect, and appropriate prioritization of internet traffic.
4.5.
4ZA.CO.ZA is not responsible for the performance of networks with which 4ZA.CO.ZA may from time to time connect, including but not limited to the networks of other internet service providers.
4.6.
4ZA.CO.ZA may suspend or terminate Services: for operational or technical reasons; if 4ZA.CO.ZA has reasonable grounds to believe that the Services are being used in breach of these Terms including but not limited to breach of the Acceptable Use Policy; if your use of the Service may damage or disrupt the proper functioning of 4ZA.CO.ZA or other networks or impact other customers; or for other exceptional reasons.
4.7.
4ZA.CO.ZA dial-up shall be limited to dial-up from one specific telephone number unless agreed otherwise by 4ZA.CO.ZA.
4.9.
Any e-mail addresses and limited personal web space offered as part of your Services shall be subject to the Acceptable Use Policy. Domain names and hosting packages may be available at extra cost.
4.10.
4ZA.CO.ZA provides you with a password to access the Service. You must keep the password and all other security information confidential and you will be responsible for all activities and related costs that take place in conjunction with the use of your password or security information. You must inform 4ZA.CO.ZA and change your password in the event that you become aware of any insecurity, any unauthorized use of your account or any other breach of security.
4.11.
Security, appropriate use of the internet, regulating access to minors/others, virus protection, spam management, spyware identification, general system healthcare and all other issues relating to your use of the internet and its consequences are solely your responsibility. 4ZA.CO.ZA cannot and will not be responsible or liable. Any software or other services provided to you by 4ZA.CO.ZA which attempt to help with the above issues are provided "as is" with no guarantee whatsoever as to their effectiveness.
4.12.
You should always back up your data regularly. 4ZA.CO.ZA is not responsible for your data loss or any consequences.
5.
LENGTH AND TERMINATION
5.1.
If you have subscribed to Services which require a minimum term ("Minimum Term"), you agree to pay the Service Charges for the whole of the Minimum Term starting on the date on which the Service is activated. You cannot cancel the Services unless you pay the balance of unpaid Service Charges for the remainder of the Minimum Term. After the Minimum Term, you can cancel the Services upon 30 days' notice in writing and you will be billed up until the end of the 30 days. If your order comprises multiple lines with different activation dates, then each line shall be the subject of a separate Minimum Term from the relevant date of activation. Any Equipment provided by 4ZA.CO.ZA as part of a Service must be returned on or before the date that the Service ends.
5.2.
If you have subscribed to Services which do not require a Minimum Term, you may cancel the Services: (i) for dial-up services, upon 30 days' notice in writing; or (ii) for other Services, upon 60 days' notice in writing. If you are changing to a different 4ZA.CO.ZA service, 4ZA.CO.ZA may agree to waive the cancellation period at its discretion.
5.3.
You agree that 4ZA.CO.ZA may demand, and you shall pay within 10 working days of such demand, a reasonable security deposit relating to Equipment and Services.
5.4.
Either you or 4ZA.CO.ZA may end a Service or the contract:
5.4.1. by thirty (30) days' prior notice (written) to the other party if the other party has materially breached these Terms and has not corrected such breach within thirty (30) days of a written notice requiring correction; or
5.4.2. immediately if the other is, or is deemed to be, insolvent, bankrupt or unable to pay its debts, makes or proposes an arrangement or composition with its creditors generally, enters into liquidation whether compulsorily or voluntarily or makes an application to a court of competent jurisdiction for protection from its creditors generally or a petition is presented or a resolution is passed by it for its winding up, a court of competent jurisdiction makes an order for its winding-up or dissolution, an administration order is made in relation to it or a receiver or administrative receiver is appointed over or a person legally appointed to do so takes possession of or sells any of its assets or notice of a meeting to carry out any of the foregoing is duly served; or
5.4.3. immediately if an event, outside 4ZA.CO.ZA's reasonable control, prevents continued provision of Service for more than thirty (30) days.
5.5.
You may end a Service or the contract if 4ZA.CO.ZA notifies you of a materially detrimental change to a Service or these Terms. In this case you may only terminate during the period of thirty (30) days following such notification.
5.6.
4ZA.CO.ZA may immediately end, or suspend, providing a Service to you if: you fail to pay any amounts properly due; incorrect payment or address details have been provided to 4ZA.CO.ZA; or at any time there are incurred unpaid Service Charges owed to 4ZA.CO.ZA (whether due or not) in excess of your deposit (if any). Unpaid debit orders will result in an R100.00 penalty fee which is for your account payable within five (5) working days from debit order run including the debit order amount. Failure for these amounts to be paid will result in services suspension or termination with immediate effect.
6.
YOUR OBLIGATIONS
6.1.
You agree that you will: not use, nor allow others to use, the Services in any way which breaches the Acceptable Use Policy; not resell the Services to any third party except where expressly agreed in writing by 4ZA.CO.ZA; safeguard security information (including your password); notify 4ZA.CO.ZA of any changes or inaccuracies to the registration data about yourself specified in the order; only use and connect equipment and/or networks to the 4ZA.CO.ZA network that are approved and comply with all relevant legislation, standards and license requirements; allow 4ZA.CO.ZA and its representatives access to your premises at reasonable times to carry out necessary actions in relation to these Terms; comply with these Terms and any reasonable instructions 4ZA.CO.ZA gives you from time to time; and indemnify 4ZA.CO.ZA against all losses, liabilities, costs (including legal costs) and expenses which 4ZA.CO.ZA may incur as a result of any third party claims against 4ZA.CO.ZA arising from, or in connection with your use or misuse of the Services or breach of these Terms.
6.2.
4ZA.CO.ZA may suspend your Service or block certain activities if it believes in its sole reasonable discretion that any provision of these Terms has been or is likely to be breached by your actions or inactions.
7.
SERVICE CHARGES, PAYMENT TERMS ETC
7.1.
The charges applicable to 4ZA.CO.ZA's processing of any order and the provision of any Service or supply of Equipment ("Service Charges") shall be the Service Charges set out in 4ZA.CO.ZA's tariff as agreed with you at the time of order or as communicated to you by e-mail or in writing. Service Charges may include any or all of the charges set out in this clause 7.
7.2.
Charges may be made for the provisioning, installation, connection and activation of a Service and, if required, the supply of Equipment ("Activation Charges"). The Activation Charges which apply to your order are the Activation Charges in force on the date of order and are not subject to change for such order. Activation Charges are due on acknowledgment of your order for such Service and Equipment by 4ZA.CO.ZA.
7.3.
Charges may be made for the rental of rented Equipment ("Rental Charges"). Rental Charges are due monthly in advance.
7.4.
Charges will be made for your use of a Service or a feature of a Service ("Usage Charges"), including any charges in connection with dial-up, rogue dialers and system misconfiguration. The applicable Usage Charges are calculated in accordance with your usage or Service plan at the applicable rates communicated to you or as are in force from time to time. Usage Charges are due monthly in advance or more frequently if you receive notice from 4ZA.CO.ZA.
7.5.
Other Charges may be made in relation to the relevant Service which does not fall into the above categories ("Other Charges"). The Other Charges may relate, without limitation, to such matters as Service upgrades or migration, feature activation, engineer site visit, change of address or early termination. Other Charges will be communicated to you.
7.6.
Most Service Charges are currently not subject to Goods and Services Tax ("GST"). If GST is or becomes chargeable on any of the Services, you agree to pay to 4ZA.CO.ZA GST at the then applicable rate in accordance with the law.
7.7.
You agree to pay all invoiced Service Charges by the payment date specified on the invoice. 4ZA.CO.ZA may charge interest on any overdue amounts payable from the due date until payment of all sums owing including interest (whether before or after judgment) at the rate of twenty four percent (24%) per annum. You will be invoiced monthly following activation of your Services. All amounts due to 4ZA.CO.ZA shall be paid in full without deduction, set-off or withholding except as permitted by law. You agree to be liable to 4ZA.CO.ZA for any and all costs and/or expenses incurred directly or indirectly, including reasonable attorney's fees and expenses, in the collection or attempted collection of any amounts due.
7.8.
If you purchase Equipment from a third party recommended by 4ZA.CO.ZA, you agree to comply with the payment terms of the third party supplier and to pay all applicable taxes, duties, impost, levies or other government charges.
7.9.
If you request an engineer to visit your premises and the fault is found by the engineer to be caused by your equipment or network you will be liable to pay a site charge.
8.
DATA PROTECTION
8.1.
In processing, provisioning and activating your order, providing Service, billing you and otherwise interacting with you as a customer, 4ZA.CO.ZA will collect, store, process and/or transfer data relating to you. You agree that 4ZA.CO.ZA shall be entitled to collect, store, process and/or transfer data about you in accordance with the laws applicable of South Africa from time to time.
8.2.
From time to time 4ZA.CO.ZA and carefully selected companies may contact you about other 4ZA.CO.ZA or other products and services that we think may be of interest to you. If you do not wish us to contact you, please inform us at the time of order or, in writing, at any time afterwards. Please also let us know when your contact details change.
9.
LIMITATIONS AND EXCLUSIONS OF LIABILITY
9.1.
Nothing in these Terms shall restrict or exclude either party's liability for death or personal injury arising from breach of duty or negligence and nothing in these Terms shall restrict or exclude either party's liability for fraud or fraudulent misrepresentation.
9.2.
Subject to clause 9.1, neither 4ZA.CO.ZA nor you will be liable to the other for any for any Unforeseen Losses whether in contract, delict or otherwise. "Unforeseen Losses" shall mean any economic loss arising in the course of commercial or residential activities (whether direct or indirect) including, without limitation, any loss of profits, anticipated savings, business, contracts, revenue, time, goodwill or loss or harm of data always provided that this shall not include: Service Charges payable; and the repair (or if repair is not practicable, replacement) of any of your tangible physical property intentionally or negligently damaged by us or our employees or agents while on your premises.
9.3.
Your sole and exclusive remedy in respect of any failure to meet any Service levels (if applicable) set out in any Service level agreement (if applicable) is the rebate set out in such Service level agreement.
9.5.
Whilst every care will be taken by 4ZA.CO.ZA to provide the Services, 4ZA.CO.ZA shall not be liable for any loss of data howsoever caused including, without limitation, deletions, corruptions, non-deliveries and misuses, whether as a result of interruption, suspension, or termination of Service, or for the contents, accuracy or quality of information or resources available, received or transmitted, through the Service. It is your responsibility to back up data and, within the terms of applicable licenses and legislation, all software.
9.6.
You shall at all times be under a duty to mitigate any losses suffered by you.
9.7.
Each provision of this clause 9 is to be construed as a separate provision applying and surviving even if one or more of the other provisions of this clause 9 is held inapplicable or unreasonable.
9.8.
Except as expressly set out in these Terms, all other representations, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of these Terms and each Service contract are expressly excluded to the extent permitted by the laws of South Africa.
10.
MISCELLANEOUS
10.1.
Neither party may use the other's name, trade mark, trade name or any other proprietary identifying symbol without the prior written approval of the other party.
10.2.
If 4ZA.CO.ZA provides any software (and any related documentation) under these Terms which is embedded in hardware as firmware and which is not accompanied by a license agreement (collectively "Service Agreement Software"), you agree to use the Service Agreement Software only with the Equipment, if any, and the Services. You agree not to (i) reproduce, reverse engineer, disassemble, decompile, modify, adapt, translate, create derivative works from, or transfer or transmit the Service Agreement Software in any form or by any means, or (ii) use the Service Agreement Software for any purpose other than as set forth in this paragraph. You shall not have any ownership rights in, or obtain rights to, the Service Agreement Software. If a license agreement ("Software License") accompanies the 4ZA.CO.ZA -provided software, whether such software is owned by 4ZA.CO.ZA ("4ZA.CO.ZA License Agreement Software") or its third-party supplier(s) ("Third-Party License Agreement Software"), you agree to abide by the terms of the Software License. 4ZA.CO.ZA shall have no obligations or liabilities whatsoever in connection with any Third-Party License Agreement Software, whether such Third Party License Agreement Software is used in connection with the 4ZA.CO.ZA -provided Service or is used independent of the 4ZA.CO.ZA -provided Service. The Customer agrees to look exclusively to the Third-Party License Agreement Software supplier(s) with respect to all matters relating to its software.
10.3.
When communicating with our Customer Service staff, or any other 4ZA.CO.ZA representatives, you agree that you will not use abusive or offensive language or make threats to such 4ZA.CO.ZA representatives.
10.4.
4ZA.CO.ZA shall not be liable for, and is excused from, any failure or delay in performance that is due to acts of God, acts (or failure to act) of government, civil or military authority, acts of the public enemy, war or threats of war, accidents, fires, explosions, earthquakes, landslides, floods, tsunami, hurricanes, unusually severe weather, epidemics, electromagnetic interference, breakdown in international communications, civil insurrection or due to any other cause beyond its reasonable control.
10.5.
4ZA.CO.ZA may assign or novate the benefit or burden of these Terms or any Service upon notice to you. You may not assign the benefit or burden of these Terms or any Service.
10.6.
4ZA.CO.ZA's failure to exercise or enforce, or any delay in exercising or enforcing any right or benefit conferred by, these Terms shall not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.
10.7.
Subject to clause 5.5, 4ZA.CO.ZA may change these Terms from time to time by notifying you of the revised Terms. You may not amend these Terms without the written, specific agreement of 4ZA.CO.ZA.
10.8.
These Terms do not create any rights for and are not enforceable by any third party.
10.9.
These Terms are the exclusive statement of the agreement between you and 4ZA.CO.ZA related to the subject matter of these Terms. These Terms supersede all understandings and prior agreements, whether oral or written, between the parties.
10.10.
These Terms shall be governed and construed in accordance with Magistrate and High Court of the Western Cape and South African law and, subject to the dispute resolution procedures set out above, the Parties irrevocably agree to the exclusive jurisdiction of the Cape Magistrate or High Court of the Western Cape, always provided that 4ZA.CO.ZA may commence proceedings against you in any jurisdiction in which you are incorporated, resident or hold assets.
10.11.
If any provision of these Terms is held by a court, arbitrator or any legally empowered governmental agency or authority to be invalid, void, or unenforceable, the remainder of these Terms shall nevertheless remain legal, valid, and enforceable.
