CYNET 360 XDR TERMS AND CONDITIONS
MASTER SERVICES AGREEMENT BETWEEN TOUCHNET TELECOMMUNICATIONS (PTY) LTD AND Affiliates REGISTRATION NUMBER: 2019/517655/07 (Duly represented by Charly Bahous, in his capacity as CEO) (“hereinafter referred to as “Supplier”)
And
CUSTOMER (“hereinafter referred to as “Customer”) (Both hereafter collectively referred to as “the Parties”)
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
The following words and expressions shall have the meanings indicated, except where the context otherwise requires. Defined terms and words are, in general, signified in the text of the Agreement by the use of capital initial letters, but the absence of such letters does not necessarily signify that a term, or word, is not defined.
1.1.1. “AFSA” means the Arbitration Foundation of Southern Africa including its successors in title and assigns.
1.1.2.“Affiliate” means any and all legal entities which are now or hereafter under the control of the ultimate parent of the Supplier
1.1.3. “Agreement” means the Master Services Agreement including terms and conditions herein together with any relevant Annexures appended hereto.
1.1.4. “API” means application programming interface.
1.1.5. “Applicable Laws” means any and all laws, statutes, regulations, decisions, rulings, government policies, enactments or instruments, requirements or regulations, and codes of practice, codes of conduct, policies and decisions of any relevant regulator, which may from time to time be in force in the Republic of South Africa and be relevant to any rights or obligations under this Agreement.
1.1.6. “Charges” means all charges and/or fees payable by the Customer to the Supplier for the Services.
1.1.7. “Confidential Information” means any information or data in whatever form or medium whether tangible or intangible, oral or in writing, including but not limited to, documents, materials or data which by its nature or content is or should reasonably be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence or is marked as confidential information by the Disclosing Party, and of which the Receiving Party may obtain knowledge through or as a result of the relationship created in terms of this Agreement, access to the Disclosing Party and/or the Disclosing Party’s premises, or communications with the Disclosing Party’s employees, representatives or independent contractors. Without limiting the generality of the foregoing, “Confidential Information” shall include but is not limited to ideas, concepts, business plans, strategies, financial statements, pricing data, operations, inventions, discoveries, formulae, processes, designs, specifications, drawings, prototypes, sample, improvements, developments, applications, marketing data, customer names, projections, trademarks, trade names, and trade secrets, any commercial, financial, technical or strategic information, whether or not the same are or may be patented, registered, or otherwise publicly protected;
1.1.8. “Customer” as depicted by the approval on the signed Touchnet quotation.
1.1.9. “Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored or transmitted using the Services.
1.1.10. “Equipment” means Supplier and third-party vendor equipment hosted at the customer premises and/or data center, or any networks or network equipment not owned by the Customer, supplied by Supplier.
1.1.11. “Disclosing Party” means the Party that discloses the Confidential Information to the Receiving Party (as the case may be).
1.1.12. “ECA” means the Electronic Communications Act 36 of 2006, including any regulations and amendments thereto from time to time.
1.1.13. “Effective Date” means the date of signature of this Agreement by the last party signing the agreement.
1.1.14. “End User” means the Customer and those persons or entities with whom the Customer concludes End User Agreements for the resale or lease of the Services.
1.1.15. “End User Agreement” means the Agreement concluded between the Customer and the End User.
1.1.16. “End User Premises” means the locations or locations occupied by the Customer and its End Users to which the Services are delivered.
1.1.17. “Intellectual Property Rights” means and includes, rights relating to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), copyright, database, domain name, circuit topography design, and/or utility model, whether registered or not, and including the benefit of all registrations or applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; and all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may exist anywhere in the world.
1.1.18. “Initial Period” means the period from the Service Activation Date to the date of expiration of a Service.
1.1.19. “Maintenance” means any maintenance action performed on Services related hardware, and any upgrades, improvements and bug fixes performed Services related software.
1.1.20. “MRC” means Monthly Recurring Cost as set out in the Quotation and/or Order Form.
1.1.21. “Network” means the fixed fibre optic communications network, and/or wireless services network used for the distribution of the Services which are provided by the Supplier as envisaged in this Agreement.
1.1.22. “Order Form” means the signed and dated request for Services submitted by the Customer to the Supplier.
1.1.23. “Parties” means the Supplier and Customer to this Agreement and “Party” means any one of them.
1.1.24. “Personal Information” means any information relating to the Parties, their subsidiaries, divisions and undertakings, directors, officers, employees, agents, contractors, customers, end users and future customers, including without limitation, information of the nature contemplated in the definition of personal information contained in POPIA
1.1.25. “POPIA” means the Protection of Personal Information Act 4 of 2013, including any regulations and amendments thereto from time to time.
1.1.26. “Receiving Party” means the Party that receives the Confidential Information from the Disclosing Party.
1.1.27. “Services” means the services provided by Touchnet to the Customer as described in the Touchnet Quotation and/or Touchnet Proposal documentation, including all third party related services provided by Touchnet as the Supplier.
1.1.28. “Supplier” means Touchnet Linx (Pty) Ltd, a company with limited liability duly incorporated in accordance with the company laws of the Republic of South Africa, and having its principal place of business at Address, Johannesburg, South Africa, and its Affiliates.
1.1.29. “Service Activation Date” means the service activation date set forth in the Service Schedule or the date that the Services actually commence, whichever is the earlier.
1.1.30. “Service Levels” means the specific performance levels applicable to the provision of the Services selected by the Customer.
1.1.31. “Signature Date” means the date of signature of this agreement by the Party signing last in time.
1.1.32. “Software” means any downloadable or accessible tools, software development kits (SDK), APIs or other such proprietary computer software modules provided by the Supplier in connection with the Services, which may be downloaded or accessed by Customer, and any updates the Supplier may make to such software from time to time.
1.1.33. “Third Party” means any person who is not defined as a Party to this Agreement, and
1.1.34. “VAT” means value-added tax, chargeable under the VAT Act 89 of 1991 including any regulations and amendments thereto from time to time.
2. INTERPRETATION
2.1. Unless inconsistent with the context, an expression in the Agreement which denotes:
2.1.1. Any gender shall include the other genders
2.1.2. A natural person shall include a juristic person and vice versa
2.1.3. The singular shall include the plural and vice versa
2.1.4. Where appropriate, meanings ascribed to defined words and expressions in clause 1.1 of this Agreement shall impose substantive obligations on the Parties.
2.1.5. Words and phrases defined in the main body of this Agreement shall bear the same meanings in the annexes to this Agreement where such words or phrases are not specifically defined.
2.1.6. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause
2.1.7. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement
2.1.8. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
2.1.9. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule (i.e. the rule that a general word or clause is restricted in meaning to the same class as the specific words which precede it) shall not be applied in the interpretation of such general wording or such specific example/s
2.1.10. The terms of this Agreement having been negotiated, the contra proferentem rule (i.e. that words should be interpreted against the stipulator) shall not be applied in the interpretation of this Agreement
2.1.11. Any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Effective Date, and as amended or substituted from time to time.
2.1.12. The use of the words “Business hours” shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time.
2.1.13. The use of the words “Days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time and if such day falls on a Saturday, Sunday or public holiday, then the next day
2.1.14. The rule of interpretation that, in the event of ambiguity, the contract must be interpreted against the party responsible for the drafting of the contract does not apply.
2.1.15. The termination of this Agreement does not affect those of its provisions which expressly provide that they will operate after termination, or which must continue to have effect after termination, or which must by implication continue to have effect after termination.
2.1.16. The Schedules to this Agreement form an integral part of it and words and expressions defined in this Agreement will bear, unless the context otherwise requires, the same meaning in such Schedules.
3. ORDER OF PRESEDENCE
3.1 If there is a conflict in meaning between any provision contained in the main body of this Agreement and those of a Service Schedule, the provisions contained in the main body of this Agreement will have primacy unless the Schedule states that it prevails in relation to specific identified clauses.
4. APPOINTMENT AND AUTHORITY
4.1. The Customer appoints the Supplier to supply the Services to the Customer for the Initial Period in accordance with the terms and conditions set out in this Agreement, although the Parties will be bound by the terms and conditions of this Agreement with effect from the Signature Date.
4.2. The Customer hereby authorizes the Supplier to enter into agreement and arrangements with Third parties as may be necessary for the Supplier to render the Services.
4.3. Customer may not assign this Agreement, in whole or in part, without the prior written consent of the Supplier. The Supplier may assign this Agreement in whole or in part, without consent, to an Affiliate, or as part of a corporate reorganization or a sale of its business.
4.4. In order to provide the Services, Customer agrees that the Supplier may use third party service providers to perform all or any part of the Services, provided it remains responsible to Customer under this Agreement for work performed by such third party.
5. TERM
5.1. This Agreement shall come into effect on the Effective Date and shall continue in force for the Initial Period unless terminated by either Party.
5.2. After the expiry of the Initial Period, this Agreement shall automatically renew for a period equal in length to the Initial Period (the “Renewal Period”) and shall continue automatically on the terms contained in this Agreement for an unlimited number of Renewal Periods, unless terminated by the Customer, on expiration of the Initial Period or a Renewal Period.
5.3. All Service schedules will be bound by the terms and conditions stipulated on each individual Service Schedule and will not renew automatically.
5.4. Should the Customer terminate this Agreement prior to the expiry of the Initial Period or any Renewal Period for any reason other than expressly provided for in this Agreement, the Customer shall remain liable for all amounts owing to the Supplier and the Supplier shall be entitled (unless the Customer is entitled to terminate this Agreement without penalty in accordance with the provisions of the CPA, if applicable) to levy a cancellation/early settlement fee (which fee shall be amounts due for the remainder of the contract term).
5.5. Notwithstanding the termination of this Agreement, each Service Schedule shall remain in force until termination thereof and shall remain subject to the terms of this Agreement.
6. DELIVERY
6.1. The Supplier shall deliver the Equipment and the Services to the Customer in accordance with a Service Schedule and at the address nominated by the Customer in writing.
6.2. The Customer shall be obliged to pay the reasonable costs incurred by the Supplier in delivering the Equipment prior to the shipment of the Equipment. If the Supplier cannot deliver the Equipment to such address through no fault of the Supplier, the Customer shall be obliged to pay all reasonable costs incurred by the Supplier in making the attempted delivery.
6.3. The Supplier will provide an invoice to the Customer for all delivery costs.
6.4. The Supplier shall use its reasonable endeavors to meet the stipulated dates and times for delivery of the Equipment and the Services.
6.5. The Supplier shall not be liable in any manner whatsoever to the Customer for any loss arising from any failure or delay in performance or providing Services and/or Equipment resulting from any of the force majeure events referred to in Clause 20 nor for any other reason unless such failure or delay is directly attributable to the gross negligence or fraudulent intent of the Supplier.
6.6. Unless the Customer proves otherwise and without limiting the rights of the Customer pursuant to the CPA, if applicable, signature by the Customer on any acceptance certificate provided by the Supplier and/or its service providers upon the installation of the Equipment or at the instance of a commissioned Service, shall be deemed to be an acknowledgement by the Customer that it has fully inspected and approved the Equipment and all of its components and that the Equipment and components have been received to the full satisfaction of the Customer.
6.7. The Customer shall, at its own cost and expense, be responsible for:
6.7.1. obtaining all necessary approvals and authorities imposed by any competent authority and required for the purpose of the supply, delivery and/or installation of the equipment and the services, including landowners’ consent, where the customer is not the landowner.
6.7.2. The Customer hereby indemnifies the Supplier against any claim or liability suffered by the Supplier by reason of such approval and authorities not having been obtained.
7. EQUIPMENT
7.1. The Customer undertakes to use the Equipment only for the purpose for which it is intended and to ensure that its employees, agents and/or sub-contractors comply with the instructions and recommendations of the Supplier.
7.2. Upon delivery or collection of the Equipment as the case may be, risk in the equipment shall pass to the Customer who shall then be responsible for:
7.2.1. Keeping the Equipment protected against loss and damage from whatsoever cause; free from any judicial attachment, hypothec or any other legal charge or process and shall not encumber the Equipment.
7.2.2. Exercising due care and diligence in respect of the Equipment.
7.2.3. Protecting all Equipment against any form of lightning by means of installing a lightning protection, unless expressly provided by the Supplier to the Customer, and
7.2.4. Obtaining adequate insurance for the Equipment for the full replacement value thereof.
7.3. Upon the expiry of this Agreement and or a Service Schedule, the Customer shall return all Equipment in good working order and in the same condition as at the date of installation, fair wear and tear excepted.
7.4. The Equipment shall at all times remain the property of the Supplier and/ or its service providers, as the case may be, who shall have the right to inspect the Equipment at all reasonable times during the currency of this Agreement and to remove the Equipment on termination of this Agreement for any reason. Accordingly, the Customer undertakes forthwith upon the installation of the Equipment, to notify the landlord of the premises where the Equipment is to be installed of the Supplier’s and/ or its service provider’s ownership of the Equipment.
7.5. The Customer shall provide:
7.5.1. The Supplier with access to its premises, the Equipment, software and/or network for the purposes of monitoring, maintenance and upgrades
7.5.2. The Supplier with plans, organograms, structural, architectural and block diagrams, user lists, company procedures and any other form of information that the Supplier deems necessary for the proper provision of Services.
7.6. In the event that Equipment is lost, stolen or damaged for any reason whatsoever and howsoever arising, the Customer shall immediately notify the Supplier in writing of such loss, theft or damage.
7.7. In the case of the Equipment that is damaged or stolen, the Customer shall remain fully liable for all replacement costs and charges pertaining to such Equipment and Services.
7.8. The Supplier shall, as soon as reasonably possible after receipt of written notification of such theft, loss or damage for Equipment supplied, repair or replace Equipment (other than Equipment that has not been supplied by the Supplier, the repair and/or replacement of which shall be for the Customer’s entire responsibility). The cost for the repair and/or replacement of the Equipment will be invoiced to the Customer for the Customers insurance claim.
7.9. The Supplier shall in its sole discretion, using reasonable testing methods, determine whether such Equipment has been subjected to improper, malicious or negligent use.
7.10. In respect of any Equipment provided to the Customer by the Supplier under a Managed Service Schedule and in respect of Equipment provided by the Supplier at the Suppliers cost to the Customer, the Customer will be required to ensure that the equipment is insured as the costs for replacement due to theft and damage in the insurance cover provide proof of insurance cover for all equipment supplied.
7.11. The Customer shall be obliged to ensure that the Equipment and all components thereof at all times remain at the site of installation thereof. Should the Customer wish to relocate any fixed or movable components of the Equipment to alternative premises, the Customer shall be precluded from doing so unless it has made written application to the Supplier to such effect and the Supplier has approved such relocation in writing. The Customer will be charged for any site relocation requirement (whether within the Customers existing premises or to alternative premises) at the relevant rates stipulated by the supplier and/or its service providers at the time of such site re-location.
7.12. The Customer shall not itself be entitled to nor permit any other party to repair, maintain, modify, alter or add to the Equipment in any manner whatsoever without the Suppliers prior written consent.
8. SOFTWARE
8.1. The Customer shall use any Software provided to it by the Supplier, only for the purposes for which it is intended and licensed in terms of this Agreement.
8.2. The Customer shall not permit anyone else to reverse engineer, decompile, modify, tamper with, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the software or any part, variation, modification, release or enhancement thereof or have any Software or any program written or developed for it based on the Software.
8.3. All rights of whatever nature in and to the Software and all upgrades, updates, modifications and variations thereto from time to time, shall vest in the Supplier and no rights in and to the Software, its upgrades, updates, modifications and variations thereto are granted or assigned to the Customer. The Customer shall not, at any time in any way, question or dispute the ownership of the Software and undertakes not to infringe or prejudice any rights of the Supplier in and to the Software.
9. PROVISION OF ZADARA SERVICES, LOCATIONS AND ACCESS
9.1. Contingent on Zadara’s acceptance of a Customer Order, and subject to the terms and conditions of the Agreement, the Supplier agrees to provide the Services and the Support described in the Customer Order. The Services may be accessed via API’s provided by the Supplier. The Supplier may modify or replace its API’s at any time.
9.2. By Signing up for the Services, the Customer understands that the Supplier may send the Customer (including via email) information regarding the Services, such as: (a) notices about Customers use of the Services, including notices of violations of use (b) updates to the Services and the new features or products and (c) promotional information and materials regarding the services. If the Customer doesn’t consent to receive notices (other than promotional materials) electronically, the Customer must refrain from using the Services.
9.3. The Supplier and Zadara, stores the Application and Customer Data on the drives selected by the Customer at the VPSA creation. By using the Services, the Customer consents to this storage of the Application and the Customer Data. The Supplier agrees to store the Application and Customer Data in the specific geographic locations named at the time of purchase. The Customer understands and agrees that while the Customer Data will be stored and may be processed in the locations, some processing and metadata storage may continue to be provided from the United States. It is the Customers responsibility to configure and properly utilize the applicable Services and Locations to address its obligations related to data types and data residency obligations.
10. CUSTOMER DATA SECURITY AND PRIVACY
10.1. The Supplier is committed to assist the Customer to protect the security of Customer Data. The Supplier uses a variety of administrative, technical and physical security technologies and procedures to help protect Customers Data from unauthorized access, use, or disclosure. However, the Customer is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of the Customer Data. Customer specifically agrees to maintain at the least one additional current copy of the Customer Data elsewhere.
10.2. As between the Parties, the Customer is the controller of Customer Data. The Supplier doesn’t control, verify, or endorse the Customer Data. The Customer is responsible for (a) all Customer Data it uploads through the Services and (b) making sure the Customer has all the rights it needs to the Customer Data. In addition, by storing, using or transmitting Customer Data, the Customer cannot and will not violate any laws or this Agreement.
10.3. The Customer agrees to provide the Supplier (as well as agents or service providers acting on the Suppliers behalf to provide the Services) the right to transmit, process, use and disclose Customer Data and other information which they may obtain as part of the Customer use of the Services but only (i) as necessary to provide the Services (ii) as otherwise required by law, regulation or order, or (iv) to respond to an emergency.
10.4. The Suppliers security obligations with respect to Customer Data are limited to the obligations described herein, the Supplier shall not use or disclose Customer Data. Customer data is and shall always remain under the exclusive care, custody and control of the Customer.
10.5. The Customer must maintain the security of its login credentials and may not share login credentials except as required to establish and authorize users in its account.
11. MONITORING TOOLS
11.1. The Customer agrees to provide information and/or other materials related to its Applications as reasonably requested by the Supplier and allow the Supplier to access the Applications or crawl or otherwise monitor the external interfaces of Customers Applications with the Services, for the purposes of verifying the Customers compliance with this Agreement and to allow the Supplier to more efficiently manage various service issues. The Customer undertakes not to block, disable or otherwise interfere with such crawling or monitoring tools.
12. SERVICES PROVIDED BY THIRD PARTIES
12.1. The Supplier may direct the Customer to third party products or services, including availability of third-party applications through deployment or implementation tools. The Supplier makes no representation or warranty whatsoever regarding third-party products and services that are not purchased from the Supplier,
13. CHARGES AND PAYMENTS
13.1. Where the Supplier provides a single solution comprising a number of Services and Equipment, billing will commence for each respective Service and Equipment as and when each individual solution is commissioned.
13.2. Services as per the agreed Cloud Node Proposal and may include the following:
13.2.1. Zadara Node
13.2.2. Training and Onboarding Facilitation
13.2.3 Switching and Networking Equipment
13.2.4 NOC Support and Service Level Agreement services
13.3. Unless otherwise agreed to by the Supplier in a Service Schedule, in consideration of the provision of the Services and Equipment by the Supplier to the Customer, the Customer shall effect payments in advance, in full, without deduction or set off and free of bank charges, as per the Supplier invoice.
13.3.1. For the supply and delivery of Services, Equipment and installations
13.3.2. For the monthly managed Service charges and/or all other maintenance charges, if applicable, and of all other relevant periodic charges (including monthly and annual charges) in advance, as may be specified in a Service Schedule.
13.3.3. For usage charges, in arrears, as may be specified in a Service Schedule.
13.4. It is expressly recorded and agreed that the Supplier shall be entitled, on 30 days written notice to the Customer, to increase the charges payable by the Customer in circumstances of either such increases being specifically provided for in a Service Schedule or the direct costs to the Supplier in providing the Services (including without limitation, the charges charged by the network provider(s) in respect of such Services) being increased. In such event the increases to the charges shall be commensurate with the increased costs of providing the Services.
13.5. Unless the Customer notifies the Supplier in writing within 5 Business Days of receipt of an invoice to the contrary, the contents of such invoice shall be deemed to be correct.
13.6. Unless otherwise stipulated, all amounts payable by the Customer to the Supplier in terms of this agreement are exclusive of VAT and any other statutory levies, taxes and imposts as may be levied thereon from time to time. The Customer may be liable for VAT and rates, taxes, government or statutory levies as may be imposed in respect of the services from time to time.
14. WARRANTIES AND LIMITATION OF LIABILITY
14.1. The Supplier shall use all reasonable endeavours to ensure that the Equipment supplied by it and/or the Services provided by it is in accordance with a Service Schedule and is otherwise correct in terms of the Customer’s requirements.
14.2. Subject to any warranties that may by implied by the CPA to the extent that the CPA is applicable to this Agreement, the Supplier does not, however, make any representations nor, unless expressly given in writing, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services or the Equipment including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose.
14.3. Subject to the provisions of the CPA to the extent that the CPA is applicable to this Agreement, the Supplier shall not be liable to the Customer or any third party for any loss or damage which the Customer or such third party may suffer or incur as a consequence of utilizing the Services and/or Software and/or Equipment, irrespective of whether such loss or damage is direct, special, incidental, consequential or otherwise. The Supplier shall not (other than in circumstances of the Suppliers gross negligence or fraudulent intent) be liable for any damage or loss suffered by the Customer caused by and/or attributable to:
14.3.1. The Services being interrupted, suspended or terminated, for whatsoever reason, and/or
14.3.2. The Suppliers failure to suspend the provision of the Services to the Customer in terms of an arrangement between the Supplier and the Customer or after the Customer has specifically requested the Supplier to do so in order to limit the applicable charges, and/or
14.3.3. Communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever, and/or
14.3.4. Circumstances that constitute a force majeure event (as contemplated in Clause 14), and/or
14.3.5. The Customers failure to perform its obligations under this agreement, and/or
14.3.6. Changes made to the Customer’s operating environment which were not communicated to the Supplier, and/or
14.3.7. A power failure or power interruptions at any site from where the Services or any component of the Services are rendered, and/or
14.3.8. Any failure or delay by the Customer to report problems or queries to the Supplier’s call centre, and/or
14.3.9. The server and/or equipment of any recipient party being non-functioning for any reason whatsoever, and/or
14.3.10. The failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party or whom the Supplier and/or Customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the Services
14.3.11. The unavailability of the Supplier’s website for any reason whatsoever, and/or
14.3.12. The Customer using the Service for any unlawful, improper or immoral purpose, and/or
14.3.13. The unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, and/or telecommunication Equipment. In such circumstances, the Customer shall remain liable for all charges incurred pursuant to such unlawful or fraudulent access and hereby indemnifies the Supplier against loss, liability, damage or expense which the Supplier may suffer as a result thereof.
14.4. Notwithstanding any other provisions of this Agreement, the Supplier’s liability to the Customer and/or any third party for any damages or loss of whatsoever nature, including without limitation any damages or loss caused by the negligence (but excluding gross negligence) of the Supplier or the Customer, as the case may be, or that of its servants, agents and subcontractors, shall in any event and under all circumstances be limited to an amount equal to the fixed monthly charges payable by the Customer for the preceding 6 (six) months
15. CONSUMER PROTECTION ACT
15.1. Breach, termination and renewal of fixed term contracts by natural person
15.1.1. Notwithstanding anything contained in this Agreement, a Consumer who is a natural person shall be entitled to remedy a breach of this Agreement within 20 (twenty) business days of the Supplier giving notice of the breach, and the Agreement will only be capable of termination if the Customer persists in the breach notwithstanding the expiry of the period of the notice.
15.1.2. Notwithstanding the standard terms of this Agreement in respect of termination, a Consumer who is a natural person has the right to terminate this Agreement on 20 (twenty) business days’ notice in writing, provided that he/she will be liable to the Supplier for reasonable cancellation fee determined by the Supplier.
15.1.3. If a Consumer is a natural person, the Supplier will notify him/her not more than 80 days and not less than 40 days before the expiry of the fixed term of this Agreement.
15.1.4. If the Supplier fails to perform to the standards required by this Agreement, the Consumer’s sole remedy will be to require the Supplier to remedy the defect or to claim a reasonable reduction in the price paid for the service.
15.2. Quality of Equipment or Services
15.2.1. If Equipment is purchased from the Supplier in a transaction that is subject to the provisions of the CPA and such Equipment is found within 14 days of delivery to the Consumer to be:
15.2.2. Unsuited for the purpose for which it is intended;
15.2.3. Of poor quality or defective;
15.2.4. Unusable or non-durable for a reasonable period of time having regard to the use to which such Equipment would normally be put and other relevant circumstances, the Consumer may return the Equipment to the Supplier at the Suppliers risk and expense and elect either to have the deficient Equipment replaced or to refund the price paid and, upon discharging the Consumer’s election, the Supplier shall bear no further liability to the Consumer in this respect, save to the extent that the Supplier may be found to be liable for damages contemplated in section 61 of the CPA;
15.3. If Services are supplied to a Consumer, then where the standards of such Service are not in accordance with the standards specified in the applicable Service Schedule then the Consumer may as its only remedy require the Supplier to remedy the non-conformance or claim a reasonable reduction in the price paid for the Service.
15.3.1. All other warranties or conditions as to quality, description or fitness for purpose are specifically excluded. The liability of the Supplier for breach of this warranty (or any other claim based on any defect in Equipment that the Supplier supplies to the Consumer) shall under no circumstances exceed the replacement or repair value (if such Equipment can be repaired) of the Equipment shown to be defective or, at the Supplier’s election, reimbursement of the price received by it for the Equipment;
15.3.2. The Supplier shall not be liable for breach of the warranty set out in this clause where the defects in the Equipment has been caused by or the quality of the Equipment has been affected by the negligence or fault of the Consumer, the Consumer’s employees or any third parties.
15.4. If the Supplier elects to make partial deliveries in respect of a sale, each partial delivery shall be deemed to be the subject of a separate sale and non-delivery or delay in effecting any partial delivery shall not affect the balance of the sale or entitle the Consumer to cancel the sale. Payment shall be postponed until such time as all the Equipment ordered has been delivered.
15.5. Where a term in this clause 15 conflicts with another provision of this Agreement, the provisions of this clause 15 will prevail. This clause 10 only applies to Consumers.
15.6. Where the Customer is a Consumer, the Supplier will not accept the cancellation by the Customer of an order placed in advance for customised Equipment or Services but the Customer has the right to cancel an order placed in advance for standard Equipment or Services, subject to payment of a reasonable cancellation fee determined by the Supplier in its reasonable discretion.
16. ABUSE OF SERVICES
16.1. The Customer hereby warrants and undertakes in favour of the Supplier that the Customer –
16.1.1. Shall not use nor allow the Services to be used for any improper, immoral or unlawful purpose, including, without limitation, attempting to utilise the Services to route (or assist another party to route) transit traffic from other networks to the Supplier, nor in any way which may cause injury or damage to persons or property or an impairment or interruption of the Services;
16.1.2. Shall comply with all relevant legislation and regulations imposed by any competent authority and all directives issued by the Supplier relating to the Services and hereby indemnifies the Supplier for any losses, expenses, damages, harm or amount for which the Supplier may become liable arising from or relating to the use of the Services in any manner whatsoever which violates the terms of this Agreement, any law, legislation or regulations; and/or any claims made by any third party arising from the Customer’s use of the Services.
17. SUSPENSION
17.1. The Supplier may upon 5 days’ written notice to the Customer, suspend the Customer’s use of the Services and remove Equipment in the event that –
17.1.1. any modification, maintenance or remedial work is required to be undertaken pertaining to the Services and Equipment; and/or
17.1.2. the Customer fails to perform any of its obligations or breaches any term/s of this Agreement.
17.2. The Supplier may require the Customer to effect payment of any applicable reconnection charges pursuant to the restoration of the Services suspended in the circumstances contemplated in clause 13.1.2.
17.3. The Customer remains liable for the applicable charges payable by it in terms of this Agreement during any period of suspension in the circumstances contemplated in clause 13.1.1.
17.4. During a suspension period or following the termination of the Agreement, the Customer shall not have access to the Customer Data.
18. DEFAULT AND TERMINATION
18.1. Save where otherwise provided for in this Agreement, should the Customer –
18.1.1. fail to pay any amount payable under this agreement within 5 days after receipt of written demand requiring such payment;
18.1.2. commit a breach of any provision of this Agreement and, if such breach is capable of remedy, fail to remedy such breach within 5 days after receipt of written demand from the other Supplier requiring it to do so;
18.1.3. becomes the subject of business rescue proceedings, is placed under liquidation, judicial management or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;
18.1.4. commit any act which if committed by a natural person would constitute an act of insolvency or become insolvent;
18.1.5. compromise or attempt to compromise generally with any of its creditors;
18.1.6. have a final judgment taken against it which is not satisfied within 30 days after the granting of such judgment,
18.1.7. then the Supplier shall be entitled, without prejudice to any of its other rights under this Agreement and/or in law and by giving written notice, to immediately cancel this Agreement or to claim immediate specific performance of all of the Customer’s obligations whether or not due for performance, in either event without prejudice to the Supplier’s right to claim damages.
18.2. The Customer is liable for any obligation accrued at the date of termination or suspension of the Services, including the payment of any costs or charges that may arise in connection with such termination (including, without limitation, the cancellation fees referred to in clause 5.3) or suspension, and the payment of all outstanding fees for the use of the Services prior to said termination or suspension.
18.3. The payment obligations of the Customer in terms of this Agreement are not suspended, stayed, delayed or otherwise affected by any suspension of access to the Services where such suspension arises from the Customer’s failure to comply with, or violation of, the terms and conditions of this Agreement or any law or legal obligation of the Customer.
18.4. The Supplier shall be entitled to immediately deactivate the Service on the date of termination or cancellation and further, has no obligation to the Customer after any termination or cancellation of this Agreement.
19. EXPORT
19.1. The Customer shall, in connection with its use of Services, comply with all applicable export and re-export control laws and regulations, including the International Traffic and Arms Regulations, and country specific economic sanction programs implemented by the Foreign Asset Control regulations.
20. FORCE MAJEURE
20.1. No party will be liable for loss or damage sustained by reason of its failure to perform its obligations under this Agreement if the failure results from any event beyond reasonable control, including without limitation one or more of the following, namely, an act of god, any law, decree, regulation or governmental authority, pandemic, epidemic, flood, earthquake or other natural disaster, strikes, lockouts or other labour disputes, embargo, or inability to obtain supplies, provided however that the party whose performance has been prevented will give written notice within a reasonable period to the other party of the nature thereof and the date such condition commenced and will further give written notice within a reasonable time after the condition will have terminated. Should the operation of this Agreement be interrupted as aforesaid, such period shall be automatically added onto the term of this Agreement thereby extending the expiration date accordingly.
20.2. The affected party will use its best endeavours to terminate the circumstances giving rise to the force majeure, and upon termination of the event giving rise thereto, will forthwith give notice to the unaffected party.
20.3. The requirement that any force majeure will be remedied with all possible diligence will not require the settlement of strikes, lockouts or other labour difficulties by the party concerned on terms contrary to its reasonable wishes. The manner in which all such labour difficulties will be handled will be entirely within the discretion of the party concerned.
20.4. The mere shortage of labour, materials or utilities shall not constitute force majeure unless caused by circumstances, which are themselves force majeure.
21. DISPUTE RESOLUTION
21.1. In the event of any dispute or difference arising between the parties relating to or arising out of this Agreement including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the parties shall forthwith enter a process of conciliation in order to attempt to resolve such dispute or difference. At least one member of the senior managers and/or CFO of each party shall be actively involved at all times in the conciliation process.
21.2. In the event that such dispute or difference cannot be resolved by way of conciliation within 30 (thirty) days of such process commencing, either party may declare a formal dispute, which dispute shall be finally settled, at the option of the Supplier, by the courts of South Africa or by a single arbitrator mutually appointed by the Customer and the Supplier. Arbitration proceedings shall be conducted in accordance with the rules of the Arbitration Foundation of Southern Africa, and shall be held in Johannesburg, South Africa.
21.3. The provisions of this clause shall continue to be binding on the parties, notwithstanding any termination or cancellation of this Agreement.
22. DOMICILIUM CITANDI ET EXECUTANDI
22.1. The Parties choose domicilium citandi et executandi for all purposes arising from this Agreement, including, without limitation, the giving of any notice and serving of any process, as follows:
22.2. Customer: As per the address captured on the Touchnet Quotation
22.3. Touchnet: Vunani Office Park, Block B, 151 Katherine Street, Sandown, Gauteng, 2196
Charly Bahous – Chief Executive Officer [email protected]
22.4. Any of the Parties shall be entitled from time to time, by written notice to the other party, to vary its domicilium to any other physical address and/or its electronic address.
22.5. Any notice given by any of the Parties to the other by which:
22.5.1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being, shall be presumed to have been received by the addresses at the time of delivery;
22.5.2. is delivered by courier during the normal business hours of the addressee at the addressee’s domicilium for the time being, shall be reputably presumed to have been received by the addressee on the 10th (tenth) day after the date of instruction to the courier to deliver to the addressee; and
22.5.3. is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium for the time being, shall be presumed to have been received by the addressee on the 15th (fifteenth) day after the date of posting.
22.6. Any notice given that is transmitted by electronic mail to the addressee at the addressee’s electronic address for the time being, shall be presumed, until contrary is proved by the addressee, to have been received by the addressee on the date of successful transmission thereof as evidenced by the confirmation of transmission generated by the sender’s transmission device.
22.7. Any notice or other document which is hand-delivered to a person or actually received by a Party, shall be adequate for purposes of this Agreement, notwithstanding that such notice or document was not received at that party’s domicilium address.
SIGNED at Vunani Office Park, 151 Katherine Street, Sandown, Johannesburg, South Africa