This Service Schedule shall be governed by the terms and conditions contained in the General Terms and Conditions and shall be deemed to be incorporated therein by reference.
1.1 By using or subscribing to any of the ENTELEK IT Services (Pty) Ltd products or services you agree that you have read, understood and are bound by the following:
1.2 In the event of a discrepancy between these Terms and Conditions and any product or service specific terms and conditions, the product or service specific terms and conditions will take precedence.
1.3 Your use of any of the ENTELEK IT Services (Pty) Ltd products and/or services indicates your acceptance without modification of the Terms, which will constitute a legal agreement between you and ENTELEK IT Services (Pty) Ltd. If you do not want to be bound by the Terms, you must not use or subscribe to any ENTELEK IT Services (Pty) Ltd product and/or service.
2.1 “Entelek IT Services (Pty) Ltd”, “we”, “us” and “our”
means ENTELEK IT Services (Pty) Ltd, Registration Number 2013/214040/07, its affiliates and subsidiaries; and will herein be referred to as ENTELEK
2.2 “Activation Date” means the date on which ENTELEK will give you access to and/or enable you to use a service;
2.3 “Agreement” means the Terms as defined in clause 1.1.1, including any Application Form provided to by the Customer you by ENTELEK and the service or solution ordered by the Customer
2.4 “Application Form” means the document on which the Customer selected the service or product of choice; this may also be construed as a signed quote or Solution ID
2.5 “Authority” means the Independent Communications Authority of South Africa (“ICASA”);
2.6 “Business Day” means Monday to Friday, but excludes a day which is an official public holiday in the Republic of South Africa;
2.7 “Business Hours” means the hours between 08h00 and 17h00 on a Business Day;
2.8 “Constitutive documents” means in the case of a company the memorandum of association, articles of association, certificate to commence business, certificate of incorporation and or the memorandum of incorporation and registration certificate, as the case may be, or in the case of a close corporation the founding statement, or in the case of a trust, the trust deed and certificate of authority;
2.9 “Effective Date” means the date on which the Customer accepted the terms and conditions for a service or product, be that in writing or by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone, including telephonic acceptance;
2.10 “Electronic Communications Act” means the Electronic Communications Act, 2005;
2.11 “ECT Act” means the Electronic Communications and Transactions Act, 2002;
2.12 “Equipment” or “CPE – Customer Premise Equipment” means any device, equipment or hardware used to access the services or used in conjunction with the services, including any SIM(Subscriber Identity Module) card;
2.13 “Force Majeure” means (including without limitation) fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of ENTELEK, that may result in a delay or a failure to provide the Service;
2.14 “Goods” means any goods provided by ENTELEK to you including hardware, which includes without limitation, servers, peripherals, routers, switches, cables, generators, uninterruptible power supplies and software together with all intellectual property belong to ENTELEK;
2.15 “Group” means you affiliates, associates, subsidiaries and divisions together with you holding company and its affiliates, associates, subsidiaries and divisions;
2.16 “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978;
2.17 “Marks” means any trademarks, logos, brand names, domain names or other marks of ENTELEK;
2.18 “NCA” means the National Credit Act, 34 of 2005;
2.19 “Network Coverage” means the geographical area within which the service can be accessed and used by the
Customer, as determined at the time coverage was established;
2.20 “Network Operator” means ENTELEK that owns an electronic communications network, and which makes such network and the electronic communications services conveyed over such network available to other industry players for commercial purposes (e.g. Vodacom, MTN and Telkom);
2.21 “Personal information” means personal information as defined in the Protection of Personal Information Act, Act 4 of 2013;
2.22 “RICA” means the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002;
2.23 “Website” means www.entelek.co.za
2.24 “Security violation” includes without limitation any form of theft, loss or damage or any possibility or threat of any theft loss of damage;
2.25 “Subscriber”, “you” or “Customer” (including natural or legal person) means an user of any of our product or services;
2.26 “System” means any goods operated together or owned by ENTELEK;
2.27 “Third Party” means any party which is not a contracting party to this agreement, excluding a party defined under group in 2.15 or in the employee of the customer, to which services is contracted or provided to by the customer;
2.28 “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991.
2.29 “You” means the contracting party or the customer as defined in the pre-agreement statement and quotation.
3. WARRANTIES,REPRESENTATIONS,UNDETAKINGS,CONCLUSION OF THE AGREEMENT AND DURATION
3.1 The Customer warrants that they have the contractual capacity to enter into this Agreement with ENTELEK. If the Agreement is signed by a person acting in a representative capacity on behalf of the Customer, the signing party hereby warrants that all of the information relating to the entity, partnership, association or other person whom he/she represents and which he/she has supplied to ENTELEK at any time will be true, accurate and complete. ENTELEK reserves the right to treat all misrepresentations by the Customer as a fraud and you indemnify ENTELEK against any loss or damage that ENTELEK may sustain resulting from such misrepresentation.
3.2 You warrant and represent to ENTELEK on the date on which you sign this agreement and for the duration of the agreement, that you have full capacity to effect and carry out your obligations in terms of this agreement and that you have obtained all approvals required by your constitutive documents to enter into this agreement and that you are duly authorised to conclude this agreement;
3.3 All information provided to ENTELEK in connection with this agreement is in all respect true and complete and you are not aware of any material circumstances not disclosed to ENTELEK which if disclosed will affect ENTELEK’s decision to enter into this agreement;
3.4 When the Customer applies for a service or product from ENTELEK, the Customer will provide us with a certified copy of their identity document, proof of residential and/or business address and proof of income (a copy of your payslip or bank statements). In the event of a juristic person, the Customer will provide ENTELEK with the same information as above for your authorised representative, together with proof of address for the juristic person, registration documents and other documentation which may be required by ENTELEK.
3.5 The Agreement will be effective from the Effective Date. No agreement will come into effect in the event of a negative credit reference or risk assessment. The agreement will terminate on the anniversary date calculated from the service Activation Date.
3.6. This Agreement will terminate, in the case of a:
3.6.1. Fixed term agreement: upon the expiry of the fixed period selected by the Customer on the Application Form starting from the Activation Date (“the Initial Period”). At the end of the Initial Period, the Agreement will automatically renew and will continue on a monthly basis (“the Renewal Period”). The Customer may terminate the Agreement during the Renewal Period by giving ENTELEK either 1 (one), 2 (two) or 3 (three) calendar months’ notice depending on the specific notice period set out in the specific product term or Application Form, which notice will take effect on the first day of the month immediately following the end of such notice period; or
3.6.2. Month to month arrangement: upon receipt in writing from the Customer of 1 (one), calendar months’ notice, which notice will take effect on the first day of the month immediately following the end of the applicable notice period; or
3.6.3. Service provided pursuant to an agreement with a Network Operator, on the date specified in a notice in writing from ENTELEK which we may give to the Customer in the event of the termination of the agreement between ENTELEK and any Network Operator relating to the provision of the service.
3.7. The Customer agrees to pay the service fee for the remainder of the fixed term period, as well as any other amounts due by the Customer to ENTELEK under this Agreement, in the event of the early termination by the Customer of a fixed term agreement. Early termination will be accepted on 30 (thirty) days prior written notice to ENTELEK following which the balance of the fixed term period will be invoiced to the Customer for settlement.
3.8. Upon the termination of the Agreement, the Customers use of the service shall terminate. However, in the event that the Customer continues to use the service following a termination, the terms will apply and the Customer shall be liable to make payment to ENTELEK of any service charges arising therefrom. This shall in no way constitute a revival of the Agreement, and ENTELEK shall be entitled to terminate the service without notice to you.
4. ECT ACT AND NCA
4.1 The Customers application for a service or product may be subject to a credit referencing or risk assessment process. This means that ENTELEK may request and receive Confidential Information from the Customer, Consumer Credit Information and Prescribed Information (as defined in the NCA) (“Assessment Information”) from registered credit bureaus in order to perform a financial means test to determine whether you will be in a position to meet your obligations under the intended agreement.
4.2 ENTELEK is entitled to perform this financial means test each time the Customer applies for a service or product.
4.3 In this regard the customer consents to ENTELEK requesting, receiving and reporting your Assessment Information from and to registered credit bureaus in accordance with the provisions and for the purposes of the NCA; and the sharing of such Information by registered credit bureaus and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
4.4 The provisions of the ECT Act, apply to transactions and communications that are executed electronically by a natural person. It does not apply to juristic persons or paper based transactions, e.g. where you apply for a service or product by completing an Application Form in writing.
4.5 The Customer acknowledges that ENTELEK will provide the Customer with an opportunity in respect of all electronic transactions to:
4.5.1 Review the entire electronic transaction;
4.5.2 Correct any mistakes; and
4.5.3 Withdraw from the transaction, before finally placing the order.
5. CONDITIONS OF ACCESS
5.1 ENTELEK will make the service available to the Customer on the Activation Date.
5.2 The Customer agrees that:
5.2.1 They will use, where applicable the assigned user name and password for their own use only;
5.2.2 Will not disclose their user name and password to any other person, natural or legal for any reason whatsoever and that they will maintain the confidentiality thereof;
5.2.3 In the event that the Customers password is compromised, the Customer will immediately notify ENTELEK and request a password change;
5.2.4 Agrees to cause all persons (natural or legal) who use any products or services under the Customer’s account or with the applicable Customer authorization to comply with the Terms and acknowledge that the acts or omissions of all persons who use services under your account or with the Customers authorization will be treated for all purposes as the Customers acts or omissions;
5.2.5 Unless such right is specifically and expressly provided to the Customer, any applicable product or service terms the Customer will not, at any time, permit and/or initiate a simultaneous network log-in; and
5.2.6 Will not attempt to circumvent the ENTELEK user authentication processes or engage in attempts to access the ENTELEK network where not expressly authorised to do so.
6. SERVICE DELIVERY, SERVICE AVAILABILITY
6.1 ENTELEK will make all its services and products available to the Customer in accordance with the provisions herein as well as the product specific terms and conditions, which together form the part of the solution terms and conditions.
6.2 ENTELEK will use reasonable endeavors to make its services available to its subscribers, and to maintain the availability thereof for use by its subscribers. However, ENTELEK provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to the Customers delivery timeline requirements. The product specific SLA will apply as indicated on the Solution ID or unless otherwise documented and agreed.
6.3 ENTELEK will use its best endeavours to notify the Customer in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.
7. DATA RETENTION
7.1 ENTELEK will use reasonable endeavours to ensure the safekeeping of any data or content which the Customer may receive or upload to our servers from time to time, such as (without being limited to) photographs, websites, videos, data and e- mail messages (hereinafter collectively referred to as “your data”). However, it is the Customers obligation to keep copies and back-ups of their data, as:
7.1.1 ENTELEK will not be liable for any direct or indirect loss or damages of any kind, which the Customer may suffer as a result of the loss of their data, or any part thereof, for any reason whatsoever (including as a result of our negligence); and
7.1.2 ENTELEK will delete all Customer data from our servers upon termination of this Agreement and any other agreement between us.
8.1 Billing will commence on the Activation Date.
8.2 The Customer agrees to pay all amounts due under the Agreement in consideration for a service or product, in accordance with the service or product specific terms under which that service is rendered or that product is offered.
8.3 All amounts due and payable in terms hereof shall be paid free of exchange and without deduction or set-off, by way of a direct debit order in favour of ENTELEK (drawn against a current banking account nominated by the Customer), or in such other manner as ENTELEK may from time to time determine. The Customer agrees that:
8.3.1 The Customer by furnishing your bank details to us, the Customer instructs and authorise ENTELEK to draw all amounts payable in terms of this agreement, service and or solution from the account specified (or any other bank or branch to which it may be transferred);
8.3.2 That the debit order will commence on the Activation Date and continue until termination of the agreement and the service or product specific agreement under which a service is rendered or a product provided and the payment in full of all outstanding amounts due and payable to ENTELEK under any of the aforementioned Agreements;
8.3.3 The Customer will sign all such forms and do all such things as may be necessary to give effect to the debit order as contemplated in this clause 9.3.
8.4 The first bill or invoice may be pro rata; the Customer is charged for the number of days left in the month post the activation date plus the subscription for the preceding month.
8.5 The Customer is required to direct any complaint or dispute in connection with a payment to ENTELEK in accordance with the provisions set out in clause 8 above. ENTELEK will reach a decision on the billing complaint and communicate it to the Customer within fourteen (14) Business Days of receipt of the complaint.
8.6 Should the Customer fail to pay any amount on the due date for payment notwithstanding receipt of ENTELEK decision referred to in clause 8.5, then ENTELEK may, without prejudice to any of its other rights:
8.6.1 Take all such further steps as may be necessary to recover the outstanding amount from the Customer, including without limitation the use of debt collection mechanisms; and if the debt arises from an agreement which is a credit agreement, then in accordance with the collection and repayment practices as prescribed in the NCA;
8.6.2 Suspend the Customers access to the service without notice to the Customer until such time as the outstanding amount has been paid in full; or
8.6.3 Terminate this agreement with immediate effect.
8.7 Subject to the terms and conditions of any agreement entered into between ENTELEK and a Network Operator, ENTELEK shall be entitled to amend the terms, fees or charges for its services or products at any time on 30 (thirty) days’ notice to the Customer as provided for in clause 23 below. The amendment will take effect on the date indicated in the notice.
8.8 ENTELEK will use reasonable endeavors to inform the Customer well in advance and in any event prior to disconnection, about the possibility of disconnection in the case of non¬payment.
8.9 The Customer indemnifies ENTELEK against any damage, loss, cost or claim which the Customer may suffer or incur arising from the suspension or termination of the service/s for any reason contemplated in the Terms.
8.10 When roaming off the ENTELEK facilities (including voice, data and hotspot roaming), the Customer will be responsible for all applicable ENTELEK charges and will be subject to the limitations or conditions of service of the service provider of such roaming services.
8.11 To the extent that ENTELEK incurs any additional expenditure relating to the tracing and/or collection of unpaid amounts, those costs shall be for the Customer’s account.
9. EQUIPMENT AND SOFTWARE
9.1 Except for Equipment that that the Customer has fully paid for, all Equipment installed or provided by ENTELEK remains the property of ENTELEK and the Customer agrees that:
9.1.1 Reasonable care will be taken with such Equipment;
9.1.2 The Customer may not sell, lease, mortgage, transfer, assign or encumber such Equipment;
9.1.3 May not re-locate such Equipment without ENTELEK prior knowledge and permission;
9.1.4 The Customer will inform any landlord that such Equipment is owned by ENTELEK and therefore not subject to any landlord’s hypothec; and
9.1.5 The Customer will return such Equipment to ENTELEK at their own expense upon termination of the Services to which the Equipment is related.
9.2 If such Equipment is lost, stolen or damaged or sold, leased, mortgaged, transferred, assigned, encumbered, or not returned, the Customer agrees to pay ENTELEK the undiscounted retail value of such Equipment, together with any costs incurred by ENTELEK in seeking possession of such Equipment.
9.3 the Customer authorizes ENTELEK and their representatives to enter or have access to their premises as necessary, at mutually agreed upon times, to install, maintain, inspect, repair or remove the Equipment or to maintain, investigate, protect, modify or improve the operation of our services or our facilities.
9.4 Equipment and related software may have to meet certain minimum requirements and be maintained in certain ways and in certain locations in order to access the services or for the proper operation of the services. Such requirements may be changed from time to time at our sole discretion.
9.5 The Customer must immediately notify ENTELEK, if the Equipment is lost, stolen, or destroyed. Should the Customer then wish to terminate your services; your obligations under the Agreement will continue to apply.
9.6 Any software and documentation ENTELEK provide to the Customer remains the property of ENTELEK or that of our licensors. The Customer will take reasonable steps to protect such software or documentation from theft, loss, or damage. The Customer must review and agree to the applicable end user license agreement before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all end user license agreements will terminate upon termination of the Agreement.
10. RETURN, EXCHANGE AND REFUNDS
10.1 The policy of ENTELEK for exchanges, returns and refunds in respect of products, in particular hardware, provided to you under this Agreement are dealt with in the service and product specific schedule and or at the sole discretion of ENTELEK.
10.2 The policy of ENTELEK in respect of exchanges, returns and refunds depends on the type of goods and the policy of the manufacturer or supplier thereof. Where the manufacturer or supplier does not have an exchange, return, and refund policy in place, no mention of such policy will be made in the service and product specific terms and conditions.
10.3 Warranties, if any, will ordinarily be included in the hardware packaging.
11. SECURITY AND PRIVACY
11.1 ENTELEK will take whatever action it may deem necessary and reasonable to preserve the security and reliability of its network.
11.2 The Customer may not utilize any service in any manner which may compromise the security of the ENTELEK network, or any other network connected to the ENTELEK network, or tamper with a service or such a network in any manner whatsoever.
11.3 ENTELEK takes reasonable steps to secure your payment information. ENTELEK uses a payment system that is sufficiently secure with reference to accepted technological standards at the time of the electronic transaction and the type of the transaction concerned.
12. ACCEPTABLE USE POLICY
12.1 The Customer hereby agrees to adhere to generally acceptable Internet and e-mail etiquette. In this regard the Customer must read and familiarize themselves with our Acceptable Use Policy found on our Website. Without limiting our Acceptable Use Policy we have listed examples below and you agree not to:
12.2 Engage in any abuse of e-mail or bulk messages (spamming), including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
12.3 Take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent your affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service;
12.3.1 Use any service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights;
12.3.2 Use any service to make fraudulent offers to sell or buy products, items, or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”;
12.3.3 Use any service in a manner that may infringe the Intellectual Property Rights or other proprietary rights of others, including (without being limited to) the transmission of pirated software;
12.3.4 Use any service to post or transmit anything which contains viruses or any other destructive features, codes, programs or files that may impede or destroy the functionality of any computer, software, equipment or network, regardless of whether or not damage is intended;
12.3.5 Repeatedly post gratuitous off the topic postings;
12.3.6 Gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect personal information about third parties without their knowledge or consent;
12.3.7 Violate the privacy of any person or attempt to gain unauthorized access to the service or any other network, including (without being limited to) through hacking, password mining or any other means;
12.3.8 Use the service to engage in any illegal or unlawful activity;
12.3.9 Use the service in any manner that in sole discretion of ENTELEK constitutes abuse of the service or system; or
12.3.10 Be abusive towards ENTELEK staff or use language that are defamatory, discriminatory, obscene, offensive, threatening, abusive, harmful, and hateful or are of a religious or racial nature.
12.4 ENTELEK reserves the right to establish policies, rules and limitations, from time to time, concerning the use of the service. The Customer must comply with any bandwidth, data storage and other limitations ENTELEK may impose, in our sole discretion. Failure to comply with these rules will result in the Customers service being restricted, suspended, or terminated, in our sole discretion.
12.5 We reserve the right to limit the number of emails that the Customer may send in any given period or to limit the total message volume (amount of data) sent per hour.
12.6 Unless the Customer is subscribed to a business package, they may not use any services for anything other than their own personal use.
12.7 Interactive forums. The Customer may not share their services.
12.8 The Customer may not restrict, inhibit or interfere with the ability of any User to access, use or enjoy the Internet or any related services, or create an unusually large burden on our network, including, without limitation, continuously uploading or downloading streaming video or audio; continuous FTP uploading or downloading, or otherwise generating levels of traffic sufficient to impede others’ ability to send or retrieve information, or to use the services in an abusive manner in connection with any unlimited packages, options or promotions.
12.9 ENTELEK will manage bandwidth usage to the best of our ability during peak periods; however, it remains a best effort service unless a guaranteed serviced has been ordered in which event the terms and conditions of the specific product as well as SLA conditions will apply.
12.10 ENTELEK reserve the right to manage our network in order to optimize its efficiency for the benefit of all our subscribers, including, without limitation, by way of the following: rate limiting (speed), rejection or removal of spam or otherwise unsolicited bulk e-mail, anti-virus mechanisms, protocol filtering and imposing restrictions on the Customers use. We may take any other action we deem appropriate in order to help ensure the integrity of the network experience for all subscribers, including limiting your data traffic by controlling your network and/or bandwidth usage.
12.11 The Customer may not use the service for unattended automated operation, unless otherwise agreed; may stay connected as long as the Customer is actively using the connection. The Customer further agrees not to use Internet applications for the purpose of simulating network activity to avoid session inactivity disconnection.
12.12 ENTELEK do not make any express or implied representations, warranties, or guarantees regarding the availability, accuracy, reliability, timeliness, quality, or security of any services.
12.13 ENTELEK are committed to provide the Customer with uninterrupted services. However, we cannot guarantee that service and the allocated capacity will always be available.
12.14 ENTELEK can terminate the service at any time if we decide to discontinue the service offering for any reason whatsoever, without any further liability to the Customer.
12.15 If the service is used in a way that we, in our sole discretion, believe violates this Acceptable Use Policy or any of our rules or limitations, we may take any responsive actions we deem appropriate. Such actions may include without limitation, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and/or the immediate limitation, restriction, suspension or termination of all or any portion of the services or the Customer’s account.
12.16 Should the Customer engage in any one or more of the above activities, which shall be determined in our sole discretion and which decision shall be final, then ENTELEK shall be entitled, without prejudice to any other rights it may have, to take any responsive action we deem appropriate, such actions may include, without limitation:
12.16.1 Without notice, temporary or permanent limitation, restriction or suspension of the Customers access to the service concerned;
13.14.1 Terminate all agreements with the Customer with immediate effect;
13.14.2 Charge the Customer for any costs incurred by ENTELEK as a result of the offending activity, including (without being limited to) bandwidth used, administration costs, downtime, usage of ENTELEK name or registered domain names and CPU cycles; and
13.14.3 Disclose information relating to the offending activity as may be required under the circumstances.
14. RICA AND INTERCEPTION OF COMMUNICATION
14.1 The Customer acknowledges that ENTELEK and/or a third party Network Operator (as the case may be) may under the circumstances as prescribed in RICA, be required to intercept, lock, filter, read, delete, disclose and use communications sent or posted via ENTELEK or the Network Operator’s network and the Customer hereby consent to the undertaking of such activities by ENTELEK and/or a third party Network Operator. ENTELEK and/or a third party Network Operator shall not be liable to the Customer for any losses, liabilities, damages and claims and for any related costs and expenses suffered by you as a result of ENTELEK and/or a third party Network Operator performing any activity referred to in this clause.
14.2 A copy of RICA is available at http://www.info.gov.za/acts/2002/a70-02.
14.3 RICA requires that the Customer must obtain and keep certain information if you sell, buy, or otherwise provide (including providing a SIM card to your employee) a cellular phone or SIM card or if you lose or have a SIM card or cellular telephone stolen. You need to read and comply with these requirements. We have set these out together with other important information on what documentation you need to provide and or obtain and keep in our RICA document found here http://www.entelek.co.za.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Customer agrees to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our services and/products.
15.2 Customer is prohibited from using any of ENTELEK trademarks and related without the prior written approval of ENTELEK.
15.3 Other than as specifically provided in the product or service specific terms and conditions, ENTELEK will wholly and exclusively retain all existing Intellectual Property Rights and become the exclusive and unencumbered owner of all intellectual property right(s) employed in or otherwise related to software used by ENTELEK, Its network infrastructure, e-commerce network infrastructure, business and the provision of any of the services in terms of the product or service specific terms and conditions.
16.1 Should Customer or any person associated with the customer of your group be in breach of any provision of this Agreement or any agreement concluded with your group, other than the provisions of clause 13 above, or any provision of the service and product specific schedules, then ENTELEK shall be entitled, without prejudice to any other rights that it may have and without notice to the Customer, to forthwith:
16.1.1 Afford the Customer reasonable opportunity to remedy the breach; or
16.1.2 Suspend the Customers access to a service;
16.1.3 Cancel all agreements concluded between us; or
16.1.4 Claim immediate performance and/or payment of all the Customers obligations in terms hereof.
16.1.5 Should ENTELEK suspend, disconnect, or terminate the Customers service, ENTELEK may charge the Customer a fee for reconnecting your service.
17.1 The Customer hereby unconditionally and irrevocably indemnifies ENTELEK and agrees to hold ENTELEK harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whenever arising, suffered or incurred by ENTELEK or instituted against ENTELEK as a result of (without limitation):
17.1.1 Customers use of our services or products;
17.1.2 Customers use of the password reminder service;
17.1.3 Customers failure to comply with the Terms and a provision of any Agreement concluded between us;
17.1.4 Any unavailability of, or interruption in the service;
17.1.5 Any other cause whatsoever relating to our provision of services or products to you.
18. LIMITATION OF LIABILITY
18.1 We do not make any express or implied representations, warranties or guarantee regarding the availability, accuracy, reliability, timeliness, quality, or security of the service.
18.2 To the extent permitted by applicable law, ENTELEK shall not be liable to the Customer for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal finally determines, notwithstanding the limitation contained in this clause, that ENTELEK is liable to the Customer for any damages, ENTELEK liability to the Customer for any damages howsoever arising shall be limited to the amounts paid by the Customer under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.
19. CERTIFICATE OF INDEBTEDNESS
19.1 The amount due and payable by the Customer to ENTELEK in terms of any agreement between us at any time shall be determined and proved by a certificate signed by one of ENTELEK directors, whose appointment, qualification, and authority need not be proved.
19.2 Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against the Customer, unless the Customer has reason to direct a dispute in connection with a payment to us in accordance with the Billing Complaints Handling Procedure as contemplated in clause 8.
20. CESSION AND DELEGATION
The Customer may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of their rights and obligations under and in terms of this Agreement without the prior written approval of ENTELEK. ENTELEK shall be entitled to sell, cede, assign, delegate, alienate, dispose, or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without the Customers consent and without notice to the Customer.
21. AMENDMENT OF THIS AGREEMENT
ENTELEK reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is the Customers obligation to visit our web site on a regular basis in order to determine whether any amendments have been made.
22. DELIVERY AND RISK IN GOODS
22.1 When receiving goods from ENTELEK you acknowledge that you have chosen the goods from ENTELEK’s supplier and that ENTELEK has no knowledge of the purpose for which the goods are intended apart from such information given by you to ENTELEK.
22.2 When receiving the goods you must inspect the goods and satisfy yourself that the goods are free from defects, and by accepting the goods you are mandating us to pay the supplier on your behalf.
22.3 When delivering the goods to you ENTELEK will be acting as agent of the supplier for the purpose of delivery of the goods.
22.4 You agree that ENTELEK has made no warranties or representations to you as to the state, condition or fitness of the good. ENTELEK is not the manufacturer of the goods and could therefore not reasonably have discovered any defects in the goods.
22.5 The risk in the goods will pass to you when you take delivery of the goods or when this agreement is signed, whichever comes earlier.
23. NOTICES AND DOMICILLIA
23.1 All notices in terms of this agreement shall be given in writing and shall be delivered to the addresses selected in the pre-agreement quotation
23.2 Both parties to this agreement select the address given in the pre-agreement quotation as their respective domicillium citandi executandi and will be entitled to change such address by written notice to the other party.
23.3 Any notice give in terms of the agreement must be way of hand delivery or email and shall be deemed to have been received on the date of physical delivery of the notice by hand or on the date of sending the email.
24.1 The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No variation or addition of this Agreement or the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties.
24.2 ENTELEK is in terms of section 43 of the ECT Act required to make its contact details, its domicile citandi et executandii, and certain other information available to its Subscribers who enter into electronic transactions with ENTELEK. This information is available on request.
24.3 The Customer agrees that any notices we send to the Customer in terms of any agreement concluded between us may be sent via e-mail.
24.4 You hereby expressly renounce the benefits of the non causa debiti, the errore calculi, the revision of accounts, no value recorded and, if there is more than one debtor, the de duobus vel pluribus reis debendi or the oridinis seu excussionis ET divisionis.
24.5 If any clauses (or portion of a clause) in this agreement are found to be invalid, illegal and unenforceable this will not affect the remaining clauses in this agreement which will continue with full force and effect.
24.6 Neither ENTELEK nor any of its employees, agents or representatives shall in any circumstances, including negligence of any degree or breach of any of their obligations, be liable to you or any other person for any indirect or consequential damages, including but not limited to loss of profits.
24.7 Should ENTELEK instruct attorneys to enforce any of ENTELEK’s rights in terms of the agreement or to institute action against you, you will be liable for all cost involved in such enforcement action on a scale as between attorney and own client.
24.8 No indulgence, leniency or extension of time which ENTELEK may grant or show to the Customer shall in any way prejudice ENTELEK or preclude ENTELEK from exercising any of its rights in the future.
24.9 The Customer warrants that as at the date of signature of the Application Form or the acceptance of the service, quote or solution, all the details furnished by you to ENTELEK are true and correct and that the Customer will notify ENTELEK in the event of any change to such details.
24.10 All our terms and conditions can be accessed, stored, and reproduced electronically by you.