1.1 In this Agreement unless the context indicates a contrary intention –
1.1.1 an expression which denotes any gender includes the other genders and a natural person includes an artificial person and vice versa;
1.1.2 the singular includes the plural and vice versa;
1.1.3 when any number of days is prescribed, 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 it shall be inclusive of the first day following the said Saturday, Sunday or public holiday;
1.1.4 if any provision in the definition clause is a substantive provision conferring rights or imposing obligations on a party, then notwithstanding that such provision is contained in this clause, effect shall be given thereto as if such provision were a substantive provision in the body of the agreement;
1.1.5 any reference in this agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or re-enacted from time to time;
1.1.6 the head notes to the clauses to this agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate; and
1.1.7 no provision herein shall be construed against or interpreted to the disadvantage of any party by reason of such party having or being deemed to have structured, drafted or introduced such provision.
2.1 Unless otherwise determined by the context, the following words will bear the meanings assigned to them hereunder –
2.1.1 “this Agreement” means these General Terms and Conditions together with all Service Schedules, the Acceptable Use Policy and any other annexures, schedules and/or amendments from time to time;
2.1.2 “Access Codes” means usernames, passwords, email addresses and other unique identifiers allowing the Customer access to the Services;
2.1.3 “Acceptable Use Policy” means Vodacom’s Acceptable Use Policy posted on www.vodacombusiness.co.za, as amended from time to time by Vodacom in its sole discretion;
2.1.4 “Business Days” means Monday to Friday, both days inclusive, but excluding officially promulgated South African public holidays that fall on or between a Monday and Friday;
2.1.5 “Business Hours” means those hours between 08:00 to 17:00 Monday to Friday on any Business Day;
2.1.6 “Commencement Date” means …………………………, notwithstanding the date of signature of this Agreement;
2.1.7″Customer” means the party contracting with Vodacom in respect of the Services;
“ECNS provider” means electronic communications network services providers licensed to provide those services in terms of the Electronic Communications Act 36 of 2005, other than Vodacom;
2.1.8 “Equipment” means equipment supplied by Vodacom to the Customer, on the basis of a loan or rental, to enable the Customer to utilise the Services;
2.1.9 “the Network” means the physical wireless and wired network operated and made available by Vodacom as well as a virtual network (using Multi Packet Label Switching or related technologies) operated and made available by Vodacom over its own network as well as the networks of ECNS providers;
2.1.10 “Service Schedule” means, in respect of each Service which Vodacom provides to the Customer, the Service Schedule concluded between the parties setting out, inter alia, a description of the Service, the fees payable, the service levels applicable;
2.1.11 “the System” means, collectively, the Network, any network provided by an ECNS provider (if applicable), the Equipment and the Customer’s equipment;
2.1.12″ Vodacom” means Vodacom Business Africa (Nigeria) Ltd Corporate. Head office: 3A Aja Nwachukwu Close, Ikoyi
3.2 Notwithstanding any termination of this Agreement in terms of clause 3.1 above, such termination shall not affect the validity of any Service Schedule in force at the time of termination which shall continue to be of full force and effect and subject to the terms and conditions herein contained until such time as all obligations of each party vis-Ãƒ -vis the other have been discharged in full.
3.3 Each Service Schedule shall commence on the date provided for therein and shall continue for the period provided for therein subject to termination as provided for therein.
3.4 Notwithstanding the provisions of clause 3.1 above, the Customer may, on not less than 1 (one) calendar month’s written notice to Vodacom, cancel any Service Schedule during the initial period provided for therein, subject to payment by the Customer of the then-applicable early termination penalty.
4.1 Each Service Schedule shall be deemed to be a separate agreement on the terms and conditions set out herein and the termination of any specific Service Schedule shall not be deemed to constitute a termination of any other Service Schedule or this Agreement, all of which shall continue to be of full force and effect.
4.2 In the event of any conflict or inconsistency between a Service Schedule and the main body of the Agreement, then the provisions of the Service Schedule shall prevail.
4.3 Each Service Schedule shall be catalogued numerically for identification purposes and shall provide:
4.3.1 a description of the Service to be rendered;
4.3.2 the effective date, initial period and termination period particular to the Service;
4.3.3 the pricing and payment terms as well as any discounts applicable to the Service;
4.3.4 the Key Performance Indicators (“KPI’s”), means of measurement thereof and required service levels;
4.3.5 escalation procedure in the event of a fault;
4.3.6 particular undertakings and terms and conditions not contained in this Agreement which pertain to the Service; and
4.3.7 any other information required as provided for in this Agreement.
Adjustment of Charges
5.1 Notwithstanding anything to the contrary herein contained, Vodacom shall have the right, on each anniversary of the effective date of a Service Schedule, by written notice to the Customer, to vary the charges and fees payable by the Customer thereunder, on 1 (one) month’s notice to the Customer, provided that:
5.1.1 in the case of Service which are not regulated by a regulatory authority, any increase levied by Vodacom in terms of this clause 6 shall not exceed the latest published Consumer Price Index excluding interest rates on mortgage bonds (“CPI”) as published from time to time by Statistics South Africa, or any other relevant Government Agency on the anniversary date. For the avoidance of doubt, the latest officially published CPI figures immediately preceding the anniversary date will be used in the determination of such increase; and
5.1.2 in the case of Services which are regulated by a regulatory authority, any increase levied by Vodacom in terms of this clause 6 shall not exceed those charges and fees lodged with and approved by the regulatory authority.
5.2 Without in any way derogating from the provisions of this clause 6, Vodacom undertakes to the Customer that it shall review its charges to the Customer in the event of a downward adjustment of its tariffs in respect of the Services, to ensure that its charges to customers in respect of like Services are, in aggregate, comparative
6.1 The Customer shall, at all times, comply strictly with all restrictions imposed on computer networks by legislation through which any information and/or data transmitted by the Customer passes. In particular, the Customer shall at all times comply with the Acceptable Use Policy.
6.2 The Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
6.2.1 in any manner damages Vodacom’s technical infrastructure or the Network any part thereof;
6.2.2 impedes, impairs or precludes Vodacom from being able to provide the Services in a reasonable and businesslike manner; and/or
6.2.3 constitutes an abuse or misuse, whether malicious or otherwise, of the Services.
6.3 The Customer shall not:
6.3.1 allow any person other than its personnel and authorised parties, access to the Services; and/or
6.3.2 use or allow others to use the Services for any improper, immoral or unlawful purpose.
6.4 The Customer acknowledges that all or any Access Codes allocated to or created by the Customer are personal to the Customer. The Customer undertakes to maintain the security and confidentiality of Access Codes and hereby indemnifies Vodacom against any loss or damage suffered by Vodacom arising out of the disclosure by the Customer of any Access Code.
6.5 Notwithstanding the provisions of clause 6.4 above, the Customer acknowledges that all Access Codes allocated to the Customer by Vodacom are and shall at all times remain the property of Vodacom and are provided to the Customer for its use for the duration of the Service Schedule in terms of which they are allocated or created. The Customer shall not be entitled to sell, lease, transfer, assign, encumber or otherwise alienate its rights in and to such Access Codes.
6.6 The Customer acknowledges that any third party services and products accessible or used in conjunction with any Services are provided subject to the terms and conditions specified by the third party providers thereof.
7.1 The Customer acknowledges and agrees that all rights of ownership in and to the Equipment shall, at all times, remain vested in Vodacom and accordingly, the Customer shall not hold itself out as the owner of the Equipment, nor sell, transfer, dispose of, mortgage, charge or pledge the Equipment or permit the possession of the Equipment to be taken away from the Customer.
7.2 Notwithstanding the provisions of clause 7.1 above, all risk in and to the Equipment shall pass to the Customer on delivery thereof to the Customer and the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
7.3 The Customer shall:
7.3.1 display in relation to the Equipment no lesser degree of care than it would had same belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;
7.3.2 not procure repair or maintenance of the Equipment by any third party without the prior written consent of Vodacom or in any other manner tamper with the Equipment;
7.3.3 not make any alteration or modification to the Equipment nor use the Equipment or permit the Equipment to be used for any purpose for which it is not designed or in contravention of any applicable law or regulation;
7.3.4 not affix the Equipment to any land or building in such a manner as to become a fixture;
7.3.5 allow Vodacom to affix or to cause to be affixed to the Equipment plates or the markings indicating the ownership of the Equipment; and
7.3.6 subject to the Customer’s reasonable security restrictions, allow Vodacom and persons authorised by it, at all reasonable times during Business Hours, access and entry to any premises where the Equipment is situated for purposes of inspecting the Equipment.
7.4 Vodacom shall be entitled to recover from the Customer any costs relating to repairs, replacements, adjustments or error corrections arising out of a failure by the Customer to abide by the provisions of this clause 8 and the Customer shall make payment to Vodacom in respect of such costs upon demand.
8.1 Vodacom warrants unto and in favour of the Customer that:
8.1.1 it has the necessary competency to fulfil its obligations as set out in this Agreement read together with the relevant Service Schedule;
the Services shall be of the industry standards in terms of quality and service and shall be rendered in a proper, professional and workman-like manner by appropriately qualified personnel;
8.1.2 to the best of its knowledge, no claim, lien or action exists or is threatened against Vodacom which will interfere with the Customer’s rights under this Agreement; and
8.1.3 all regulatory licenses, permits, approvals, authorisations and consents required to perform the Services have been obtained and are valid as at the Commencement Date.
8.2 Save as expressly otherwise stated in this Agreement or any Service Schedule, Vodacom does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Services (whether express, implied or tacit, by statute, common law or otherwise).
8.3 Where any equipment is purchased by the Customer from Vodacom, Vodacom undertakes to cede to the Customer all warranties and/or guarantees on the equipment provided by the manufacturer and shall provide the Customer with all documentation detailing the terms and conditions thereof as well as any exclusions therefrom.
Content and Communications
9.1 The Customer acknowledges and agrees that in the event that Vodacom, in its sole discretion or if obliged by any applicable law, determines that any content hosted by Vodacom, published by Vodacom on the Customer’s behalf or transmitted by the Customer by means of the Service (“Content”) is in violation of any law or the Acceptable Use Policy, Vodacom shall be entitled to:
9.1.1 request the Customer to forthwith remove such Content;
9.1.2 require the Customer to forthwith amend or modify such Content;
9.1.3 terminate the Customer’s access, without notice, to any Service) and/or suspend or terminate any Service; and/or
9.1.4 delete, without notice, the offending Content.
9.2 The Customer acknowledges that any exercise by Vodacom of its rights in terms of clause 9.1 above shall not be construed as an assumption of liability by Vodacom and/or Vodacom for the Content and/or the publication thereof whether or not Vodacom and/or Vodacom have knowledge of such Content, having cognisance of the fact that Vodacom and Vodacom have no general obligation in law to monitor Content. The Customer hereby indemnifies Vodacom and Vodacom and holds them harmless against any liability, claims, fines or other penalties of whatsoever nature imposed on Vodacom and/or Vodacom by any person arising either directly or indirectly out of the Content or the publication or hosting or transmission thereof.
9.3 The Customer further acknowledges that Vodacom and Vodacom have certain obligations in terms of the Regulation of Interception of Communications and Provision of Communications-related Information Act concerning the lawful interception of communications and provision of information. The Customer hereby indemnifies Vodacom and Vodacom and holds them harmless against any liability, claims, fines or other penalties as a result of Vodacom and/or Vodacom complying with such obligations.
New Technologies and Additional Services
10.1 Vodacom shall provide the Services using such up-to-date technology which is made generally available to its other customers. Vodacom shall promptly notify the Customer of potential enhancements and improvements that it believes the Customer may wish to consider implementing. If the Customer learns of a potential service enhancement or improvement to an existing Service (“New Technologies/Additional Service”), provided that such enhancement or improvement is offered by Vodacom to its customers, the Customer may request information from Vodacom in order to evaluate its interest in implementing such enhancement or improvement.
10.2 Upon the Customer’s request, Vodacom shall provide the indicative price, performance specifications, installation interval, or effects then known to Vodacom of any New Technologies/Additional Service. The provision of the new technology or additional services shall be subject to Vodacom standard charges and the then applicable standard terms and conditions.
Discontinuation OR Substitution of Technology
11.1 Vodacom reserves the right in its sole discretion, without cost or penalty to itself, to substitute or discontinue (in whole or in part) the technology in terms of which the Services are delivered to the Customer, provided that Vodacom shall be obliged to furnish the Customer with 6 (six) months prior written notice of such substitution or discontinuation .
11.2 In the event that Vodacom elects to substitute the technology or to discontinue in part the technology in terms of which the Services are delivered to the Customer and the new technology and the partially discontinued technology has no lesser functionality or features than the substituted or partially discontinued technology, the Customer shall not be entitled to resile from this Agreement. In all other instances, the Agreement in respect of the affected Services shall ipso facto terminate upon the expiry of the 6 (six) month written notice furnished by Vodacom to the Customer pursuant to clause 13.1 above and Vodacom shall render all reasonable assistance to the Customer in respect of the migration to an alternate provider of the affected Services.
Suspension of the Services
12.1 Vodacom shall be entitled, without prejudice to any right it may have in terms of this Agreement or at law, at any time and on such notice as may be reasonable in the circumstances to suspend provision of the Services or any part thereof in any of the following circumstances:
12.1.1 for so long as the Customer remains in breach of its obligations under this Agreement;
12.1.2 in the event that the quality of the Services, the System or the operation of the Network is adversely affected due to any act or omission on the part of the Customer; and/or
12.1.3 in the event that the Customer infringes the intellectual property rights of any third party in relation to the provision of the Services.
12.2 Vodacom shall be entitled, at any time and upon such notice to the Customer as may be reasonable in the circumstances, to suspend provision of the Services or any part thereof for the purposes of modifying, expanding, maintaining or repairing the System and/or the Network; and/or
12.3 All liability on the part of Vodacom for any loss or damage (whether direct or consequential) incurred or for any costs, claims, or demands of any nature arising out of the suspension of the Services as contemplated in clause 12.1 above, is excluded.
12.4 Should the provision of the Services be suspended by Vodacom for the purpose specified in clause 12.2 above for a period in excess of 48 (forty eight) consecutive hours, the Customer shall be entitled to a credit equal to a pro rata portion of the basic monthly subscription fee payable in respect of the disrupted Services as set out in the relevant Service Schedule.
12.5 Notwithstanding anything to the contrary contained herein, the Customer shall be obliged to continue to pay all charges and fees due under each Service Schedule during the period during which the Services is/are suspended and acknowledges and agrees that under no circumstances shall it be entitled to resile from this Agreement or, subject to clause 12.4 above, withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Vodacom, its servants, its agents or any other persons for whose acts and omissions Vodacom is vicariously liable in law (and in whose favour this provision constitutes a stipulatio alteri).
13.1 The Customer acknowledges that any and all of the trade marks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Services belong exclusively to and shall be and remain the sole property of Vodacom and save as set out herein, nothing contained in this Agreement shall be construed so as to confer on the Customer any copyright or other intellectual property rights in respect of any particular Services provided by Vodacom to the Customer.
13.2 The Customer acknowledges that all rights in any copy, translation, update, upgrade, adaptation or derivation of the Services including without limitation any improvement or development thereof belong exclusively to and shall be and remain the sole property of Vodacom.
13.3 The Customer shall not, in any manner, remove, alter or in any manner whatsoever, tamper with any copyright and/or other proprietary notice or legend of Vodacom, its vendors or suppliers.
13.4 Nothing contained in this Agreement shall be construed so as to confer on the Customer any copyright or other intellectual property rights in respect of any particular Services provided by Vodacom to the Customer.
Infringement of Intellectual Property
14.1 Vodacom hereby indemnifies the Customer against any damages (including costs) suffered or sustained by the Customer or any third party in respect of a claim that possession or use of the Service or any part thereof (“the infringing Service”) supplied by Vodacom to the Customer infringes any patent, copyright or other intellectual property rights of any third party, provided that:
14.1.1 the infringement or alleged infringement has not arisen by virtue of the Customer’s failure to use the infringing Service in accordance with instructions given by Vodacom or from any modifications or adaptation to or alteration of the infringing Service by a third party without the prior written consent of Vodacom;
14.1.2 the Customer shall have notified Vodacom as soon as practicably possible of any actual, alleged or suspected infringement and shall have made no admission of liability in respect of any such claim;
14.1.3 Vodacom shall have sole control of all aspects of the defence of such a claim and sole rights to any damages or any counterclaim; and
14.1.4 the Customer shall provide Vodacom with all such documentation, information and assistance as Vodacom may reasonably require to assist it in relation to such claim provided that Vodacom shall reimburse the Customer its reasonable costs in providing same.
14.2 If any such claim for which Vodacom is liable to indemnify the Customer under clause 14.1 above is upheld by law or in the reasonable opinion of the Customer is likely to be upheld by law, then Vodacom shall be obliged to either:
14.2.1 modify or replace the infringing Service or Product any part thereof to the extent that same is rendered non-infringing provided that such modification or replacement does not materially alter the performance or functionality of the infringing Service; or
14.2.2 to procure the right for the Customer to continue using the infringing Service.
Limitation of Liability
15.1 Except as otherwise expressly provided to the contrary either herein or in the applicable Service Schedule, Vodacom shall not be liable in any way to the Customer or to any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Vodacom or against Customer by any party arising directly or indirectly out of the Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be.
15.2 Subject to clause 15.1 above, the maximum liability of Vodacom under this Agreement in respect of any claim for direct damages by the Customer in respect of any wilful misconduct and/or negligent act or omission of Vodacom or any person for whose acts and omissions Vodacom is vicariously liable in law, for any event or series of connected events, whether as a result of breach of contract, delict or any reason whatsoever, shall be limited to the total fees, excluding Value Added Tax, paid by the Customer to Vodacom in the 12 (twelve) month period immediately preceding the month in which the incident arose which gave rise to the claim.
15.3 Under no circumstances whatsoever shall any party shall be liable for any indirect, incidental or consequential damages, (including, but not limited to, damages for loss of business, profits, revenue, data, use, or other economic advantage) incurred by the other party, arising out of or relating to this Agreement and/or any Service Schedule.
16.1 For the duration of this Agreement and a period of 1 (one) year thereafter, each party hereby undertakes to the other to:
16.1.1 keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or entering into or to performance of this Agreement (“the information”)
16.1.2 not without the other party’s written consent to disclose the information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in the implementation, of this Agreement and who have a need to know the same
16.1.3 to use the information solely in connection with the implementation of this Agreement and not for its own or the benefit of any third party; and
16.1.4 protect the confidential information of the providing party using the same standard of care used to safeguard its own confidential information and agrees further to store and handle the confidential information in such a way as to prevent any unauthorised disclosure thereof.
16.2 The provisions of clause 16.1 above shall not apply to the whole or any part of the information to the extent that it is:
16.2.1 trivial or obvious;
16.2.2 already in the other’s possession other than as a result of a breach of this clause;
16.2.3 independently developed by one party prior to the execution of this Agreement;
16.2.4 in the public domain through no fault of the receiving party; or
16.2.5 is disclosed by the receiving party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulations in force from time to time; provided that in these circumstances, the receiving party shall, to the extent permitted by law, advise the disclosing party in writing prior to such disclosure to enable the disclosing party to take whatever steps it deems necessary to protect its interest in this regard; provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and the receiving party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances.
Each party hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the information and the provisions of this clause 16 and without prejudice to the generality of the aforegoing, to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause
Assignment and Sub-contracting
17.1 The Agreement is specific to the Customer and the Customer shall not be entitled to cede or assign its rights and/or delegate its obligations, either partially or entirely, to a third party without the prior written consent of Vodacom.
17.2 Vodacom shall be entitled, at any time, to cede, assign, transfer, encumber or delegate any of its rights, title, interest or obligations in terms of this Agreement to any Affiliate(s) without the Customer’s consent. For the purposes of this clause 17.2, “Affiliate(s)” means any corporation, company, or other entity which is (i) controlled by Vodacom; (ii) controls Vodacom; or (iii) is under common control with Vodacom and “control” means that more than 50% (fifty percent) of the controlled entity’s shares or ownership interest representing the right to make decisions for such entity are owned or controlled, directly or indirectly, by the controlling entity.
17.3 Vodacom shall be entitled to sub-contract any or all of its obligations under this Agreement without the prior written consent of the Customer. Notwithstanding that any obligations may have been sub-contracted by Vodacom under this clause 17.3, Vodacom shall be, and at all times remain, fully responsible and liable for the fulfilment of all Vodacom’s obligations so sub-contracted.
18.1 In the event of the Customer on the one hand or Vodacom on the other (hereinafter referred to as “the defaulting party”):
18.1.1 committing or allowing the commission of any breach of this Agreement or any Service Schedule and failing to remedy that breach within a period of 10 (ten) days after receipt of written notice to that effect from the party not so in breach (“the aggrieved party”); and/or
18.1.2 repeatedly breaching any of the terms of this Agreement or any Service Schedule in such manner as to justify the aggrieved party in reasonably holding that the defaulting party’s conduct is inconsistent with the intention or ability of the defaulting party to carry out the terms of this Agreement, then and in any of such events the aggrieved party shall have the right, (but shall not be obliged), forthwith to cancel this Agreement or the applicable Service Schedule (either wholly or in relation to the affected portion) or to claim specific performance, in either event without prejudice to the aggrieved party’s rights to claim damages. The aforesaid is without prejudice to such other rights as the aggrieved party may have at law.
18.2 Notwithstanding anything to the contrary contained herein, either party may, without prejudice to its rights in terms of the Agreement or at law, immediately terminate the Agreement, or any Service Schedule appended to the Agreement, in the event that the other party:
18.2.1 takes steps to place itself, or is placed in liquidation, whether voluntary or compulsory, or under judicial management, in either case whether provisionally or finally;
18.2.2 takes steps to de-register itself or is de-registered; or
18.2.3 commits an act which would be an act of insolvency as defined in the Insolvency Act, 1936 (as amended) if committed by a natural person, provided that the aggrieved party acting in good faith considers such event to be detrimental to it for sound business reasons.
18.1.3 Upon termination of this Agreement for whatsoever reason:
18.3.1 the Customer shall no longer be entitled to use of the Equipment and will forthwith tender return of the Equipment to Vodacom who shall be entitled to enter any premises where the Equipment is located to recover same;
18.3.2 the Customer shall forthwith make payment to Vodacom all arrear amounts as well as all current amounts due as at the date of termination.
Dispute Resolution and Arbitration
19.1 Any dispute arising out of or in connection with this Agreement shall, in the first instance, be referred for consideration and attempted resolution to the duly authorised senior management representatives of the Customer and Vodacom.
19.2 Should the representatives referred to in clause 19.1 above be unable to resolve the dispute within 7 (seven) days of same being referred to them, then they shall appoint a third party to act as a mediator (and not an arbitrator) to mediate in the resolution of the dispute. Such mediator shall be selected by the President for the time being of the Association of Law Societies of South Africa.
19.3 Should the mediation referred to in clause 19.2 above fail to resolve the dispute within 7 (seven) days of appointment of the mediator, then such dispute shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
19.4 Notwithstanding the provisions of this clause 19, neither party shall be precluded from obtaining relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
20.1 Neither party shall be liable to the other for inability to perform or delayed performance in terms of the Agreement, should such inability or delay arising from any cause beyond the reasonable control of such party, provided that the existence/happening of such cause has been drawn to the attention of the other party within a reasonable time of occurrence of such cause (hereinafter referred to as “a Force Majeure Event”).
20.2 For the purposes of this clause a Force Majeure Event shall without limitation of the generality of the aforegoing, be deemed to include strikes, lock outs, accidents, fires, explosions, theft, war (whether declared or not), invasion, foreign enemies, hostilities rights, civil insurrection, flood, earthquake, lightning, act of local or national Government, Martial Law or any other cause beyond the reasonable control of the party effected.
20.3 Should Vodacom party be unable to fulfil a material obligation under this Agreement or any Service Schedule, as the case may be, for a period of not less than 30 (thirty) days due to circumstances beyond its control more fully set out in clauses 20.1 and 20.2 above, and be unable to provide a suitable temporary alternative to the affected Service or Service Element, as the case may be, then the Customer may terminate this Agreement or the applicable Service Schedule.
20.4 Notwithstanding anything to the contrary herein contained, as an alternative to termination in terms of clause 20.3 above, in the event of a Force Majeure Event, the Customer may, at its option, extend this Agreement or the applicable Service Schedule (whichever is appropriate in the circumstances) for a period equal to the period during which the Force Majeure Event subsists.
Domicilia and Notices
21.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process, the payment of any monies and for any other purpose arising from this Agreement, as follows:
21.1.1 Vodacom Commercial Park, 082 Vodacom Boulevard, Vodavalley, Midrand
21.1.2 The Customer –
21.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.
21.3 Any notice given by either party to the other (“the Addressee”) which:
21.3.1 is delivered by hand during the normal Business Hours of the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee at the time of delivery;
21.3.2 is posted by prepaid registered post to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee on the 4th (fourth) day after the date of posting.
22.1 This Agreement shall be governed, construed and interpreted in accordance with the laws of the Republic of South Africa.
23.1 Nothing in the Agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other in any way for any purpose.
Binding on Successors and Related Parties
24.1 The terms and conditions of this Agreement shall be binding upon the assigns and/or other successors-in-title of the parties from time to time.
25.1 No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless recorded in a written document and signed by or on behalf of the duly authorized representatives of both parties. For purposes hereof a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the Electronic Communications and Transactions Act 25 of 2002, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
Invalidity and Severability
26.1 If any provision of the Agreement shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of the said provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision, with the retention of the economic, legal and commercial objectives of the said invalid or unenforceable provision.
27.1 The waiver by either party of a breach or default of any of the provisions of the Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or provision that it has or may have hereunder operate as a waiver of that right or power or of any breach or default by the other party.
27.2 Any concession or relaxation of any of the terms of the Agreement that either party may make or allow the other party will not in any way compromise any or all of the rights contained herein or in law of the party making or allowing the said concession or relaxation to demand specific performance.
28.1 This Agreement, together with all schedules, appendices, Service Schedules, annexures and/or amendments from time to time and any specifically referenced documents if applicable, constitutes the complete and exclusive statement of the Agreement between the Parties and supersedes all prior or contemporaneous agreements, promises, representations, understandings and negotiations between the Parties, whether written or oral, with respect to the subject matter hereof. The terms and conditions of any and all schedules, appendices, Service Schedules (including any specifically referenced documents, if applicable) to this Agreement, as amended from time to time by mutual agreement of the Parties or in accordance with the terms of this Agreement, are incorporated herein by reference and shall constitute part of this Agreement as if fully set out herein.
SMEE Bundles - Office Complete
- 29.1 Office Complete bundles are only available on 24-month contract.
- 29.2 All prices include VAT.
- 29.3 Upgrades and downgrades cannot be accommodated.
- 29.4 Elements of the bundles cannot be changed for any alternative product or service.
- 29.5 Any usage outside of the inclusive IP Talk voice bundles will be invoiced monthly in arrears. The IP Talk bundles reset at the beginning of each month and no carry over is permitted. Once the inclusive VoIP call minutes have been depleted the usage based VoIP rates will apply. Terms and Conditions apply to all Contract and Prepaid offers. Please visit www.vodacom.co.za for our full Terms and Conditions that always apply.
- 29.6 You will be charged for the volume of data sent and received, and not the time you spend connected. Unused Contract, Month-to-Month and Once-Off bundles data expire at month end. Unused Prepaid and Top Up bundle data expire after 30 days. Once you have used up your bundle, the applicable out-of-bundle rate will apply. SMS messages are charged in accordance with prevailing tariff plans. Data transfer speeds are not guaranteed and are dependent on network availability and utilisation. A compatible device is required to use the 3G & HSDPA services. Out-of-bundle pricing is rounded up to the nearest cent. Bundles and tariffs only apply to standard APNs. It is the responsibility of the Prepaid and Top Up customer to ensure that they have a sufficient balance to their account for any downloads or other activity. Customers will not be refunded if they attempt to download any items and they run out of funds during this download, causing the session to be terminated. Tariffs do not apply to data roaming. Migration terms and conditions apply. Prepaid and Top Up customers must have a minimum airtime balance of R2.00 to initiate a data session. Deals/Offers valid while stocks last.
- 29.7 Vodacom reserves the right to alter or withdraw the deals advertised in this brochure, website without notice. Subscriptions on the different packages may vary based on negotiated corporate rates. E&OE.