DEFINITIONS AND INTERPRETATION

  • Unless a contrary intention is clear from the context, the following words and phrases shall have the following meanings:
    • “The Act” means the Electronic Communications Act 36 of 2005 together with any regulations in terms of the Act, as amended from time to time;
    • “AUP” means an Acceptable Use Policy;
    • “Activation” means the enabling of a service to the customer’s site on one or more networks.
    • “Agreement” means these Terms and Conditions, the Service Request Form signed by the Customer and all schedules and addenda to these documents, as amended from time to time;
    • “The Authority” means the Independent Communications Authority of South Africa established in terms of the Independent Communications Authority of South Africa Act 13 of 2000 and its successors who oversee the telecommunications and electronics industry in the Republic of South Africa;
    • “Broadband Access Service” means the wireless broadband access service provided by Initio to the user using Fibre
    • “Business Day” means any day which is not a Saturday, Sunday or a day which is defined as a public holiday in terms of the Public Holidays Act, Act 36 of 1994;
    • “Business Hours” shall mean a period calculated by counting the number of hours between 8:00 and 19:00 on Business Days during a calculation period;
    • “Charges” means installation charges, monthly service charges, usage and all other charges relating to the provision of the services by Initio to the Customer or relating to the cancellation of the Agreement;
    • “CPA” means the Consumer Protection Act 68 of 2008 together with any regulations in terms of the CPA, as amended from time to time;
    • “Contractor” means a contractor appointed by Initio to install, maintain, repair, connect, disconnect or perform any similar tasks related to the provision of the CPE or the Services by Initio to the Customer;
    • “Customer” means the person entering into this Agreement with Initio for the provision of Services and/or the use of Equipment;
    • “Customer Premises” means the premises specified in the Service Request Form at which the Services are to be provided;
    • “Customer Premises Equipment” or “CPE” means all devices and software supplied by Initio to the Customer to enable Initio to provide the services to the Customer, including the optical network termination device, software, hardware, cables and connections;
    • “Degradation” means the presence of anomalies or defects in the absence of a fault.
    • “Degraded Service” means the presence of anomalies or defects that cause a degradation in QoS, but do not result in total failure of the service.
    • “Documentation” means the documentation supplied by Initio to the End User;
    • “Effective date” means the date of signature on which the End User agrees to these terms and conditions;
    • “End User Premises” shall mean the location or locations occupied by the End User to which the Services are delivered as specified in the Service Request Form;
    • “Equipment” means any Initio equipment or products, or that of its partners or subsidiaries, including any Facilities, or any other equipment or products which are supplied to the End User by Initio, for use in conjunction with the Services;
    • “Event of Force Majeure” means any event or circumstance, other than a lack of funds required for payment, which is not within the reasonable control of the affected party including, without limitation, war, national emergency, strike, civil disturbance, theft, fire, flood, explosion, natural disaster, unusually severe weather conditions, prohibitive legislation or regulations, inability to secure materials or services and failure of power or utility supplies (including electronic communications);
    • “Excessive usage” means usage in excess of that calculated as the average usage for browsing, email, reasonable downloading and the like over a calendar month.
    • “FTTB” means architecture of electronic communication to the Customer’s place of business where the final connection to the Customer’s Premises is optical fibre;
    • “FTTH” means architecture of electronic communication to the Customer’s residence where the final connection to the Customer’s Premises is optical fibre;
    • “Initial period” means the number of months as agreed in the Service Request Form or the Product Specific Terms and Conditions Schedule, as the minimum period for which such services will be provided, commencing on the date of Activation of a Service;
    • “Initial services” mean the first services supplied by Initio to the Customer;
    • “Initio” means Initio360 (Proprietary) Limited, registration number K2016/445051, a company incorporated in terms of the laws of the Republic of South Africa;
    • “Installation” means the physical act of providing the CPE and the FTTB or FTTH to the Customer Premises
    • “MFN” means Metro Fibre Networx (Proprietary) Limited, registration number 2007/024366/07, a company incorporated in terms of the laws of the Republic of South Africa;
    • “Metrofibre NOC” means the National Operations Centre or call centre operated by MFN;
    • “Month” means a calendar month beginning at 0h00 on the first day of the calendar month in question;
    • “Monthly Recurring Charge” means the fixed recurring charge for the services, exclusive of any variable charges;
    • “MTTR” (Mean Time to Respond) means the average time from when the ticket is logged with the Initio Technical Service Desk to the time a Initio Support Representative attends to the incident or trouble ticket.
    • “MTRS” means Mean Time to Restore Service, being the average time from the first detection or reporting of the Service interruption to Initio by the Customer until the time when the Service is restored;
    • “Network provider” means an entity authorised by the Authority to provide telecommunication services including, but not limited to, fixed line operators, mobile operators, wireless operators or any other operator that provides access and network services (including value added services);
    • ”Network services” means any services provided by a Network provider and which are made accessible to the Customer in terms of this agreement;
    • “Network Unavailability” means the time when the service is unavailable or degraded to such an extent that it is unusable, measured from the first detection or reporting of service interruption to Initio by the Customer until the time when the service is restored;
    • “NNI” means Network to Network Interface between distinct MEN operated by one or more carriers;
    • “Off-Net Services” means services provided at any Customer Premises that are not on MFN’s electronic communications network and where an infrastructure build will be required to connect the Customer to MFN’s electronic communications network;
    • “On-Net Services” means services provided at any Customer Premises that are on MFN’s electronic communications network;
    • “ONT” means the optical network termination device located at the Customer Premises which forms part of the CPE and to which the rest of the CPE is connected;
    • “Parties” means the parties to this agreement, being Initio and the Customer, and “Party” means either one of them;
    • “Product” means any combination of equipment and services provided by Initio;
    • “Proposal” means the Service Request Form signed by the Customer, read together with terms and conditions and any other annexures or schedules or documents referred to in the Service Request Form;
    • “QoS” means quality of service
    • “Republic” means the Republic of South Africa;
    • “Services” means the products and/or services provided by Initio to the Customer as specified in the Proposal;
    • “Service Request Form” means a request for the Services submitted by End User to Initio in a form prescribed by Initio;
    • “Service provider” means any person appointed by Initio to supply any Service or part thereof to the Customer;
    • “SLA” means service level agreement.
    • “Software” means any programme or application used to operate computers and related devices, whether included as part of a package, provided as a stand-alone application or accessible via the internet or any other web browsing method;
    • “UNI” means the physical interface or port that is the demarcation between the ONT and the rest of the CPE;
    • “Uptime” means the total number of minutes available to a Customer via the Network services in a calendar month;
    • “Use charges” means the costs charged by Initio to the Customer for recorded use of the Network services.
    • “VAT” means value-added tax, chargeable under the VAT Act of 1991.
  • In this agreement, unless a contrary intention is clear from the context:
    • The singular includes the plural and vice versa;
    • A reference to any gender includes the other genders and a reference to a person includes any individual, body corporate or unincorporated or any other entity recognised in law as having a separate legal existence;
    • When any number of days is prescribed, this shall be calculated by excluding the first and including the last day, unless the last day is not a Business Day in which case the days shall be calculated up to the next Business Day;
    • Headings of clauses have been inserted for convenience only and shall not be taken into account in the interpretation of the agreement;
    • If there is any conflict between the provisions of this agreement and any proposal, schedule or annexure, the provisions of this agreement shall prevail;
    • Words defined in this clause shall have the same meaning in the schedules and any word defined in a clause or schedule shall have that meaning in the clause or schedule concerned and if used elsewhere in this Agreement;
    • If the CPA applies to this agreement and there is any conflict between the provisions of this agreement and the CPA, the provisions of the CPA shall prevail.

COMMENCEMENT AND DURATION

  • The Agreement shall apply to each Service Request Form and any services provided in terms thereof for the Initial period as specified in the Service Request Form, calculated from the date of Activation.
  • The initial term of each Services Confirmation Schedule shall commence on the Service Activation Date and shall expire on the date set forth in the applicable Service Confirmation Schedule (“Initial Service Term”).
  • After the Initial period, or if no Initial period is specified in the Service Request Form, unless the parties agree to the renewal of the Agreement for a further fixed term, the Agreement shall continue on a month to month basis until cancelled in writing by either party by 30 days written notice to the other party.
  • Notwithstanding the termination of this Agreement, each Service Confirmation Schedule shall remain in force until termination thereof and shall remain subject to the terms of this Agreement.
  • Any new or additional services or any extension of the Initial services provided by Initio to the Customer, shall be supplied as provided for in the Service Request Form or in an addendum to the Service Request Form or a new Service Request Form, and the Agreement shall apply to same from the date of Activation of such new, additional or extended Services.
  • In the event of the Activation of any service being delayed as a result of any act or omission on the part of the Customer, it is specifically agreed that, notwithstanding the fact that the Initial period has not yet commenced, Initio shall be entitled to recover the minimum monthly charge as set out in the Service Request Form, or a pro rata portion thereof, for the period of such delay together with any reasonable wasted costs incurred by Initio as a result of such delay.
  • If the Customer is a natural person:
    • The Customer may terminate the Agreement at any time, including during the Initial period, by giving 30 calendar days’ notice in writing to Initio.
    • In the event of the Customer terminating the Agreement prior to the expiry of the Initial period, Initio shall be entitled to recover all amounts due in terms of the Agreement until the termination date together with any cancellation or early settlement fee provided for in the Proposal or a reasonable fee. The Parties agree that for this purpose, a reasonable fee determined in accordance with the guidelines prescribed in the CPA, shall be 20% (twenty per centum) of the aggregate monthly charge for the remainder of the term of the Agreement.
    • Unless otherwise expressly stated in the Agreement, at the expiration of the Initial period or any renewal period, Initio, in its sole discretion, may remove or change any discounts which applied to the Initial period or the renewal period, as the case may be.
    • If the conclusion of the Agreement is as a result of direct marketing and the provisions of the CPA apply to the Agreement, the Customer has the right to terminate the Agreement without reason or penalty within 5 business days of the later of the date upon which the Agreement was entered into or the CPE or any other goods to be supplied to the Customer are delivered to the Customer. If such goods are not returned in their original, unopened packaging, Initio shall be entitled to claim a reasonable amount from the Customer for the use and/or depletion of the CPE or other goods.

PROVISION OF SERVICES AND AUTHORISATION

  • The Customer wishes to acquire Services and Product from Initio, which Services and Product Initio agrees to provide to the Customer subject to these Standard Terms and Conditions and the Proposal relating to each Service.
  • The End User shall order new Services or change existing Services by submitting a Service Request Form to Initio specifying the new and/or changed Services required.
  • Initio may require information from other Network providers. The Customer authorises Initio to approach any Network provider or other party in order to obtain such information
  • Initio shall be entitled to request, on receipt of a Service Request Form and prior to activation, information related to the End User’s creditworthiness. For the avoidance of doubt the Parties agree that Initio is authorised to conduct all reasonable credit checks and searches.
  • Initio may need to enter into agreements or arrangements with third parties which may be necessary for Initio to deliver the Services. The Customer authorises Initio to enter into any such agreement or arrangement as may be necessary; and
  • if so required, the Customer shall provide Initio with such written authorisation as may be necessary for Initio to obtain the information referred to in 12 and 13 or to enter into an agreement or arrangement referred to in 14.
  • Notwithstanding any issues raised to the contrary, continued use of the service after the initial 48 (forty eight) hours will imply acceptance of the service and, subject to the terms and conditions of this Agreement, an individual contractual relationship between the Parties for the provision of the Services for the duration of the applicable Service Term will be in effect.

DELIVERY AND INSTALLATION

  • Initio will use its reasonable endeavours to comply with the installation date requested by the Customer. However, the Customer acknowledges that this will depend on the availability of equipment, service providers and contractors and Initio gives no undertaking that it will meet any installation date. Initio will not be liable in any manner to the Customer for any loss arising from failure in delay in the provision of the services or the CPE whether arising from an Event of Force Majeure or for any other reason whatsoever, unless such failure is directly attributable to gross negligence or fraudulent intent on the part of Initio.
  • Notwithstanding anything in this Agreement, the Services shall only commence on the Service Activation Date and there will be no obligation on Initio to commence provision of the Services prior to the Service Activation Date.
  • The End User shall notify Initio of any problems with the Services within forty-eight (48) hours of the Service Activation Date, failing which, the Services shall be deemed to be accepted by the End User. In the event that the End User notifies Initio of a problem regarding the Services within the specified time period in this clause, Initio shall rectify such problem within a reasonable period of time.
  • Initio shall deliver the CPE required for the provision of the Services and as specified in the Service Request Form to the Customer Premises against payment of the Installation Fee and deposit, if any, as set out in the Proposal.
  • If the Customer fails to make arrangements for Initio to supply and install the CPE and the Services at the Customer’s Premises on the confirmed date and at the confirmed time for installation and fails to provide Initio with at least 48 hours’ notice of this fact, Initio shall be entitled to charge a fee for the cancellation which fee shall be added to the installation fee.
  • The Customer shall, at its own cost and expense, be responsible for:
    • Ensuring that the communication services and facilities, including, without limitation, telephone lines, installation areas, electrical outlets, connection requirements and access ways are suitable for the installation, passage and electrical connection of the equipment and services when they are delivered for installation and thereafter. Where any device or equipment is required which is not provided by Initio, the Customer shall be responsible for installing it at its own cost, risk and expense. Only devices and equipment which are approved by the Authority and which have all the technical and operational characteristics and modifications which have been approved may be used in conjunction with the Services and the CPE; and
    • Obtaining all the necessary permission, approvals and authorities necessary for the purposes of the supply, delivery and installation of the equipment and Services, including permission from the owner of the premises where the Customer is not the owner. The Customer hereby indemnifies Initio against any liability costs, damage or liability which Initio may incur as a result of the Customer’s failure to obtain any approval or permission.
  • The installation may be subject to feasibility which can only be confirmed by a physical site survey after the signing of the Agreement. In this event:
    • Additional installation charges may apply, subject to the results of the physical site survey. The Customer will be informed of any such charges before installation takes place.
    • After obtaining the results of the site survey, Initio may determine that the installation is not feasible, in which event Initio shall be entitled to cancel the Agreement and neither party shall have any further obligations, including financial obligations, in terms thereof.
  • Once the installation is complete, any subsequent callout of engineers or technicians will be charged to the Customer at the applicable charge out rate, with a minimum charge of one hour plus travel expenses.
  • Where the Agreement is governed by the CPA, this clause shall be subject to the provisions of the CPA.
  • Any acceptance certificate or similar document signed by the Customer and provided to Initio or any Contractor shall, unless the Customer proves otherwise, be deemed to be an admission by the Customer that it has fully inspected and approved the equipment and all its components and that the equipment and the components have been received to the satisfaction of the Customer. The Customer shall have no claim against Initio of any nature whatsoever if, after such acceptance by the Customer, it transpires that the equipment or any component thereof is unacceptable to the Customer for any reason.

SERVICE LEVELS AND MAINTENANCE

  • Initio undertakes to provide an FTTH and FTTB best effort service in terms of which the MTRS shall be 48 (forty-eight) business hours.
  • Initio guarantees an average Uptime of 95% during any 12 month period calculated from the Activation date
  • The Initio FTTH Service is a Best Effort service which means the potential speed that can be obtained will depend on the load on the line and the speeds achieved via 3rd Party networks.
  • Initio does not give any guarantees to the quality and consistency of the Wi-Fi performance of the CPE.
  • Outages will be counted as Network Unavailability only if End User opens a trouble ticket with Initio End User Support.

ACCEPTABLE USE OF NETWORK AND SERVICES

  • The Customer warrants and undertakes in favour of Initio, that the Customer:
    • Shall not use or permit the services to be used for improper, immoral or unlawful purposes;
    • Not resell capacity arising from the Services or cede or assign any rights to use the Services without the prior written consent of Initio and subject to such conditions as Initio may impose in respect of such consent;
    • Shall only use the Services for the purpose for which they are intended in terms of the Agreement and shall not use the Services to route, or to assist another party to route, transit traffic from other networks to Initio nor use the Services in any way which may cause injury or damage to persons or property or cause an impairment to or interruption of the services;
    • Shall comply with the Act and any other relevant legislation, including any regulations by the Authority, and any directives or instructions from Initio, including Initio’s Fair Access Policy, annexed hereto and available on Initio’s website, relating to the use of the equipment or Services;
    • Shall specifically, without in any way derogating from the generality of 22.4, ensure compliance with all laws and regulations from time to time regulating the sending of unsolicited commercial communications (“SPAM”) including but not limited to the Act and the Authority’s Code of Conduct.
  • The Customer indemnifies Initio against any losses, expenses, damages or other amount for which Initio may become liable relating to the use of the Services in contravention of this Agreement and specifically, but not limited to, 31 or any claims by any third party arising out of the Customer’s use of the services, unless such loss, expense, damage, harm or liability is directly attributable to the gross negligence or fraudulent intent of Initio.
  • The End User is solely responsible for ensuring lawfully use of the Services and that the End User complies with all applicable laws and with Initio’s Acceptable Use Policy.
  • The End User indemnifies Initio and holds it harmless against any claims:
    • Arising from a breach of this clause; and/or by third parties in respect of prohibited or unlawful activities conducted by the End User or its End Users.
    • The End User shall not take any steps or fail to take any steps which directly or indirectly:
      • Rearrange, disconnect, remove, attempt to repair, or otherwise tamper with the Services and/or Equipment, without the prior written consent of Initio; damage Initio’s network (or any networks interconnected to Initio) or any part thereof; cause Initio to breach any of its licence terms or any provision of applicable legislation;
      • Cause the imposition of any lien or encumbrance on the Facilities and/or Initio Equipment;
      • Constitutes an abuse of the Services (in the reasonable opinion of Initio).
      • To help ensure that all End Users have fair and equal use of the service and to protect the integrity of its network, Initio reserves the right, and will take necessary steps, to prevent improper or excessive usage. The action that Initio may take includes, but is not limited to:
      • Shaping throughput, preventing or limiting service through specific ports or communication protocols, irrespective of usage;
      • Limiting throughput, preventing or limiting service through specific ports or communication protocols in the case of excessive usage;
      • And a complete termination of service to End Users with improper usage.
  • This policy applies to and will be enforced for both intended as well as unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) excessive and/or prohibited usage.
  • Online activity will be subject to the available bandwidth, data storage and other limitations of the Broadband access service, which Initio may, from time to time, revise at its own discretion and without prior notice to the End User.
  • Users may not engage in any activity that compromises or threatens Initio’s ability to provide the Broadband access service in a reasonable and efficient manner to all other users.
  • Examples of restricted use include, but are not limited to, running servers (that put traffic on the network) and hosting multi-user interactive forums, such as chat rooms.
  • The Broadband access service may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
  • Violations of system or network security are prohibited, and may result in criminal and civil liability.
  • Initio will investigate incidents involving such violations and may involve, or will cooperate with, law enforcement agencies if a criminal violation is suspected.
  • Examples of system or network security violations include, without limitation, the following:
    • Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.
    • Unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network.
    • Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
    • Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
    • Knowingly distribute computer viruses or other malicious computer programs.
    • The infringement of other’s intellectual property rights or the breaching of any laws or infringement of any third party rights, including without limitation, copyright.
    • Initio reserves the right to implement technical mechanisms which prevent usage patterns in violation of this AUP. Initio further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
    • Nothing contained in this policy shall be construed to limit Initio’s rights or remedies in any way with respect to any of the foregoing activities, and Initio reserves the right to take any actions that it may deem appropriate with respect to such activities, including without limitation: investigating suspected violations of this AUP, taking action to recover the costs and expenses of identifying offenders and terminating their access to and use of the Broadband access service, and levying cancellation charges to cover Initio’s costs in the event of termination of access to the Broadband access service. In addition, Initio reserves all available rights and remedies with respect to such activities at law or in equity.
  • This AUP may be clarified or modified periodically and Initio reserves the right to modify this policy at any time, which changes shall become effective as soon as they are posted to the Initio website.

SUSPENSION OF SERVICES

  • Initio may, upon 5 (five) days written notice to the Customer, suspend the Customer’s use of Services, if
    • any alteration, maintenance or remedial work is required to be undertaken in relation to the services; or
    • The Customer fails to perform any obligation under or breaches any term of this Agreement;
    • The Customer exceeds the credit limit which MFN, in its sole discretion, shall set and notify the Customer of from time to time and fails to rectify this situation within the notice period provided in this clause 44.1.
  • The Customer shall be liable for the applicable reconnection charges to restore any services suspended in terms of this clause, unless such services are suspended in terms 52.1
  • The Customer remains liable for the applicable fees payable in terms of this Agreement during any period of suspension in the circumstances contemplated in 52, provided that any suspension in terms of 52.1 shall be subject to the provisions of the SLA.
  • Initio may lawfully suspend, withdraw all or part of any Service at any time until further notice to the End User if, in Initio’s reasonable discretion:
    • the continued provision of the Services will cause Initio to breach an applicable law or be in contravention of its Licenses;
    • the End User is in breach of or otherwise is not complying with any of the provisions of this Agreement; and
    • Any overdue tax invoice for charges billed by Initio to the End User remains unpaid for longer than 7 (seven) days.
  • The exercise of Initio’s right to suspend the Services under this clause is without prejudice to any other remedy available to Initio under this Agreement and does not constitute a waiver of Initio’s right to subsequently terminate the Agreement.
  • Where Initio has suspended the Services in terms of clause 44.1, Initio may:
    • Refuse to reconnect the Services unless precluded by any law or order of court; and
    • If it agrees to reconnect the Services, require the End User to pay a reconnection fee in advance as a pre-condition to making the Services available again.

FEES AND PAYMENT

  • Invoices rendered by Initio in respect of the Services shall be rendered monthly in advance, except for Charges that are dependent upon usage of the Services, which shall be billed in arrears.
  • Billing for partial months shall be pro-rated based on a calendar month.
  • All invoices are due payable within seven (7) days after the date of statement.
  • All payments payable by the End User in terms of each service shall be paid in full without deduction or demand, free of exchange, to Initio, and the End User shall not be entitled to withhold any part of such payments or to make anything but the full payments due to Initio.
  • Initio shall be entitled to adjust the fees and Charges as a result of any regulatory, economical, or government imposed factors that impact on such fees and Charges.
  • Any charges incurred by Initio in the provision of the Service/s will be increased when increases are applied by the suppliers of these services and products to Initio, notification will be provided in writing within 14 days of Initio being made aware of any pending increases.
  • If payment is not received by Initio for any reason whatsoever by the due date for payment, then the End User shall be liable to pay to Initio (and without prejudice to any other right or remedy of Initio):
    • Any resulting bank or other charges incurred by Initio consequent thereupon; and
    • Any associated reasonable administrative charges including interest that has accrued on the unpaid amount up until the amount (as provided for in clause 44.1) has been received by Initio.
  • If any amount is overdue, the End User shall pay interest on the overdue amount at prime rate plus 2% (two percent), such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).
  • All Charges for the Services are exclusive of applicable taxes. Except for taxes based on Initio Net income, the End User will be responsible for all applicable taxes.
  • All VAT is payable upon receipt of a valid VAT invoice.
  • In the event of any dispute arising as to the amount or calculation of any fee or Charge which is payable by End User; the dispute shall first be referred to the Financial Directors of the Parties.
  • Should the dispute not be resolved within 7 working days, then the matter shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on Initio and End User. The Party at fault, as determined by the independent auditors, shall make payment towards the expenses for the engagement of the independent auditors’ services.

OBLIGATIONS ON TERMINATION

  • Termination for Convenience:
    • Either Party shall be entitled to terminate this Agreement by providing the other Party with 1 (one) calendar month’s prior written notice to that effect which termination shall be subject to the early termination charges set out in clause 64 below
    • Termination in accordance with clause 62.1 above shall not affect the Service Term of any Agreement, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the Service Term.
  • Termination for cause: In the event that there is a breach by either Party, the non-defaulting Party shall be entitled to provide the defaulting Party with 30 (thirty) days’ written notice to remedy such breach, including but not limited to breaches set out below:
    • A meeting of that Party convened to consider or pass a resolution, or a declaration is made in respect of that Party, a petition is presented in respect of that Party, legal proceedings are commenced by or in respect of that Party or any other step is taken, for the provisional or final winding-up, sequestration, judicial management, curatorship or dissolution of that Party’s assets, business, undertaking or estate or with a view to a composition, assignment or arrangement with such Party’s creditors;
    • The Party being or becoming unable (or admitting its inability) to pay its debts generally as they fall due or being (or admitting to being) otherwise insolvent or stopping, suspending or threatening to stop or suspend payment of all or a material part of its debts or making a general assignment or arrangement or composition with, or for the benefit of, its creditors (or any class of them);
    • Any business rescue proceedings under the Companies Act, 2008, being commenced against it or a resolution being proposed to place the Party under supervision under the Companies Act, 2008, at any duly convened meeting of the shareholders or board of directors of the Party;
    • Any liquidator, curator, judicial manager, business rescue practitioner or similar officer being appointed in respect of the Party or any part of its assets, undertaking, business or estate or such entity (or any organ of that person or entity) requests such appointment;
    • The Party committing any act which, if it were a natural person, would be an act of insolvency as contemplated in the Insolvency Act.
    • The non-defaulting Party shall be entitled to terminate this Agreement, where the defaulting Party fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this Agreement after having been required to do so within a period of 30 (thirty) days.
  • Early termination costs: The termination fee shall be calculated on the outstanding fees and Charges for each of the Terminating Services as at the termination date and will be determined as follows:
    • In the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, the End User shall be liable for the lower of the actual costs incurred by Initio in implementing the Service or the “NRC”, plus 3 (three) months of the MRC;
    • In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Term for the Terminating Services is 12 (twelve) months or less; 30% of the monthly MRC for the remainder of the Service Term of the Terminating Services;
    • The Parties acknowledge that the early termination charges are a genuine estimate of the actual damages that Initio will suffer and are not construed as penalties for the purposes of this Agreement.
  • Effects of termination
    • Termination of this Agreement, in whole or in part, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
    • On termination of this Agreement:
      • all benefits (including rights of use and licences) conferred upon the End User in terms of this Agreement, shall immediately cease and the End User shall have no claim, whatsoever, against Initio. for the loss of such benefits;
      • the End User shall return all Facilities and/or Initio equipment located on the End User Premises and/or End User premises or facilitate Initio’s removal of such Facilities and/or Initio Equipment; and the End User shall promptly return to Initio or otherwise dispose of as Initio may instruct all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the End User and relating to Initio’s business (other than correspondence which has passed between the Parties) which the End User may have in its possession or under its control. The End User shall also return to Initio its Confidential Information.
    • The termination of this Agreement shall not of itself give rise to any liability on the part of Initio to pay any compensation to the End User, including but not limited to, for loss of profits or goodwill.
    • The Customer remains responsible for all amounts due in terms of the Agreement up until the date of termination, together with any costs or expenses relating to the termination of the Agreement and the cancellation of the Services, including, but not limited to:
      • any cancellation fees, all of which shall become due and payable immediately upon cancellation; and
      • The replacement cost of any CPE which Initio is unable to recover for any reason.
    • Initio is entitled to immediately deactivate the Services on date of termination or cancellation and shall have no further obligation to the Customer after such termination or cancellation of this Agreement.
    • The Customer shall grant access to Initio or its service provider, or shall ensure that such access is granted, in order to enable them to remove the CPE or any other equipment related thereto from the Customer’s Premises.

INTELLECTUAL PROPERTY RIGHTS

  • Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
  • Each party indemnifies the other party against all crimes, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement of any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the infringement by a Party of the intellectual Property Rights of the other Party.
  • Initio retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services. In particular, Initio retains all right, title and interest in all Intellectual Property rights in and to work products, deliverables, documentation, reports, designs, formulae, methodologies, software, proposals, specifications, feasibility reports and systems, whether used to provide or as are developed or created as part of the Services.
  • Initio shall retain all right, title and interest in all Intellectual Property developed or generated pursuant to and as part of the performance of the Services provided under this Agreement.

INSURANCE

  • The CPE is adequately insured for full replacement value and that Initio’s interest in the equipment is noted on the insurance policy. The Customer shall comply fully with the terms and conditions of such insurance policy.

DEFAULT

  • Except where otherwise specifically provided in the proposal or elsewhere in this Agreement, a default shall occur if either party (“the defaulting party”):
    • Fails to pay any amount due under this Agreement within 7 (seven) days of receipt of written demand requiring such payment;
    • Commits a breach of any provision of this Agreement which breach is not capable of remedy;
    • Commits a breach of any provision, other than a payment obligation, of this Agreement which is capable of remedy and fails to remedy such breach within 14 (fourteen) days of receipt of written demand from the other party requiring it to do so;
    • Commit any act of insolvency or any act which, if committed by a natural person, would constitute an act of insolvency in terms of the insolvency laws of the Republic of South Africa;
    • Be sequestrated or liquidated whether provisionally or finally, voluntarily or compulsory or compromise or attempt to compromise with any of its creditors;
    • Has a final judgment taken against it, which judgment is not satisfied within 30 (thirty) days of the granting of same.
  • In the event of a default, the other party (“the aggrieved party”) shall be entitled, without prejudice to any other right which it may have in terms of this Agreement or in law, to, at the option of the aggrieved party, immediately cancel this Agreement or to demand specific performance of the defaulting party, whether or not such performance would otherwise be due.

GUARANTEES, EXCLUSION AND LIMITATION OF LIABILITY

  • Initio shall make all reasonable effort to ensure that the CPE and any other equipment provided by it or its service providers are in accordance with the Agreement and the Customer’s requirements. Unless explicitly granted in writing, Initio does not, except to the extent required by the CPA if the CPA applies to this Agreement, make any representations or give any guarantee or warranty of any nature whatsoever, either express or implied, with regard to the CPE or the Services including, but not limited to, any implied warranty of merchantability or fitness or suitability for any intended purpose.
  • Subject to the any applicable provision of the CPA, to the extent that the CPA is applicable to this Agreement, Initio will not be liable to the Customer or to any third party for any loss or damage, direct, special, incidental, consequential or otherwise, which may be suffered as a consequence of utilising the CPE or Services, unless such loss or damage was directly attributable to the gross negligence or fraudulent intent of Initio.
  • Without limiting the generality of 74, it is specifically agreed that Initio shall not, unless this is the result of Initio’s gross negligence or fraudulent intent, be liable for any damages or losses incurred by the Customer as a result of:
    • The Services being interrupted, suspended or terminated for whatsoever reason; or
    • Any failure to suspend the Services where the Customer has specifically requested the Services to be suspended for a period of time;
    • Communications to or from the Customer not being sent and/or received at all or on time for any reason whatsoever;
    • The Customer’s failure to perform any obligation under this Agreement;
    • Changes to the Customer’s operating environment unless these have been communicated to Initio and any necessary changes to the Services as a result thereof have been agreed to between the parties;
    • Any failure or delay by the Customer to report any problem to Initio;
    • The server or equipment of any recipient party being non-functioning for any reason whatsoever;
    • The failure of any hardware, software, operating system, application, network, telecommunication line or any computer system, or component thereof, of any third party upon whom Initio or the Customer relies, directly or indirectly, in order to utilise the Services;
    • The unavailability of Initio’s website for any reason whatsoever;
    • The Customer using the Services for illegal, immoral or improper purposes; and/or
    • Illegal or fraudulent accessing of the Customer’s telecommunication lines, PABX or other telecommunications equipment by any third party. In such circumstances, the Customer will remain liable to Initio for all charges incurred as a result of such illegal or fraudulent access and indemnifies Initio against any loss, liability, damage or expense which Initio may suffer or incur as a result.
  • Notwithstanding any other provision of this Agreement, any liability of Initio to the Customer or any third party will be limited to an amount equal to the fixed monthly costs payable by the Customer during the Initial period.
  • Each Party hereby warrants unto and in favour of the other Party:
    • It has full power, authority and legal right to execute this Agreement, to assume the obligations contained in this Agreement, and further to perform and observe the terms and provisions hereof; to the best of the Party’s knowledge and belief, all facts and circumstances material to this transaction, or which would be material or would be reasonably likely to be material and which may affect the willingness of the Parties to enter into this Agreement are known to the Party, have been disclosed by the Party to the other Party;
    • As at the Signature Date, no legal proceedings of any kind or administrative proceedings in terms of any law, which shall prevent either Party from fulfilling its obligations in terms of this Agreement, have been instituted against such Party;
    • at all times during the currency of this Agreement neither Party has any obligations/duties to third parties which, if discharged, shall prevent the Party from fulfilling its obligations in terms of this Agreement; and all necessary action has been taken to authorise the execution and performance of this Agreement and the execution and performance of this Agreement will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a Party or by which it or its property may be bound.
  • Where the insurance cover of any insurance policy that is procured by either Party under this Agreement, which is capable of being called upon to cover any liability/damage, exceeds the aggregate cap of liability specified in Clause 76., such aggregate cap of liability shall not compromise the insurance cover that can be claimed by either Party to cover the liability/damage in question. Accordingly, the imposition of such aggregate cap of liability shall not be construed as a stipulatio alteri in favour of any insurer who would otherwise be liable to make payment from the insurance cover to cover a claim that is in excess to such aggregate cap of liability under such insurance policy.

FORCE MAJEURE

  • If any party is restricted or prevented from carrying out any or all of its obligations as a result of an Event of Force Majeure, unpredictable delays caused by traffic congestion, diversion or road works, or any other event or circumstance giving rise to impossibility or performance by either party, then that party will be relieved of its affected obligations during the period that such event continues and will not be liable for any costs or damages arising from such delay or the failure in performance of any obligations as a result of such event.
  • If the event in clause 79 continues for a period in excess of 21 (twenty-one) days, either party may cancel this Agreement with immediate effect by written notice to the other party.
  • A force majeure event shall occur when either Party is prevented or restricted directly or indirectly from performing all or any of that Party’s obligations in terms of this Agreement by reason of Force Majeure, which shall constitute a “Force Majeure Event” for the purposes hereof.
  • The exclusive remedy of a Party affected by a Force Majeure Event (“the Affected Party”) constitutes that:
    • It shall be relieved of performance of its obligations in terms of this Agreement during the period that such event and its consequences continue (but only to the extent it is so delayed or prevented from performing partially or at all by the Force Majeure Event), and, provided that notice has been given in terms of Clause 80, shall not be liable for any delay or failure in the performance of any of its obligations in terms of this Agreement or losses or damages whether general, special or consequential which the other Party (“the Unaffected Party”) may suffer due to or resulting from any such delay or failure; or
    • The Affected Party shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event on its ability to perform under this Agreement and to terminate the circumstances giving rise to a Force Majeure Event as soon as reasonably possible and upon termination of the event giving rise thereto, shall forthwith give written notice thereof to the Unaffected Party.

DISPUTE RESOLUTION

  • In the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall on written demand by Initio be submitted to arbitration in Sandton in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
  • Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
  • The Parties agree that the written demand by Initio to the dispute in terms of clause 83 that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.

DOMICILIA AND NOTICES

    • The End User selects as its domicilia citandi et executandi the physical addresses, fax numbers and email addresses as specified in the Service Request Form for the purposes of giving or sending any notice provided for or required under this Agreement.
    • Initio selects as its domicilia citandi et executandi the physical addresses, fax numbers and email addresses as specified below for the purposes of giving or sending any notice provided for or required under this Agreement.

Physical Address:

23 Skyway Business Park,
Freda Road,
Randburg,
2188

Marked for attention of Simon van Helsdingen

  • Provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or telefax number by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
  • All notices to be given in terms of this Agreement will be given in writing and will: be delivered by hand or sent by email; if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and if sent by telefax or email during business hours, be presumed to have been received on the date of successful transmission of the telefax or email. Any telefax or email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
  • Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 89.

 

GENERAL

  • This Agreement constitutes the whole agreement between the parties relating to the subject matter hereof and, subject to the provisions of the CPA to the extent that the CPA may be applicable to this Agreement, no party shall be bound to any express or implied term nor to any representation or warranty nor to any extension, relaxation or waiver of any provision hereof, unless reduced to writing and agreed to by the parties. Any such extension, relaxation or waiver will be strictly interpreted as applying only to the matter in respect of which it is made or given.
  • The Customer acknowledges that MFN seeks, on an on-going basis, to improve the services which it offers to its customers. This, together with other changes which may be required as a result of legislation or regulation or arising from the environment in which MFN operates, may require MFN to amend the terms and conditions of this Agreement from time to time. Subject always to the Customer’s rights to terminate this Agreement, MFN shall have the sole discretion to amend this Agreement and to modify or discontinue any function or component of the Services. Any use by the Customer of such Services after such amendment has been implemented and notified to the Customer in writing, shall be deemed to be an acceptance by the Customer of such amendment.
  • If any part of this Agreement is found to be invalid, the balance of the provisions shall remain enforceable. The rule that, in the case of any ambiguity in an agreement, the agreement shall be interpreted against the party responsible for the preparation thereof, shall not apply to this Agreement.
  • This Agreement shall be subject to and shall be governed by the laws of the Republic of South Africa.
  • The Customer agrees, in accordance with the provisions of the Magistrates Court Act of 1944, as amended from time to time, to the jurisdiction of the Magistrates Court having jurisdiction over its person in connection with any action or proceeding instituted against the Customer in terms of or arising out of this Agreement, provided that either party may institute any action or proceedings in any division of the High Court of South Africa which has the necessary jurisdiction. In the case of either party (“the aggrieved party”) taking legal action against the other party (“the defaulting party”) for the recovery of any amounts due or any other legal action in terms of this Agreement, the aggrieved party will be entitled to recover legal costs from the defaulting party on a the scale as between an attorney and its own client.
  • The Customer shall be entitled to refer any dispute between itself and MFN with regard to the accessibility of Services to the Authority or to refer any matter to any other regulatory body having jurisdiction in respect thereof.
  • No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.-
  • Neither this Agreement nor any rights or obligations hereunder may be ceded, delegated or assigned by the End User without the prior written consent of Initio.