Master Airtime Agreement T&Cs
SCOPE OF THIS AGREEMENT
A. Vodacom is a provider of electronic communications services(mobile voice and data Services), SIM Cards and Devices;
B. Vodacom and the Subscriber have entered into this Agreement in order to enable the subscriber to order mobile voice and data Services and Devices from Vodacom in accordance with the terms and conditions set out in this Agreement.
NOW THEREFORE the parties agree as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 In this Agreement, unless the contents indicate a contrary intention, the following expressions have the following meanings:
1.1.1 “Agreement” means this Master Airtime Agreement together with any annexures thereto, including all Transaction Schedules, Service schedules and terms and conditions relating to any Value-added services that the Subscriber may subscribe to from time to time;
1.1.2 “Affiliates” means any company which is a subsidiary of either Party, a holding company of either Party, or a subsidiary of any holding company of either Party (where the terms “subsidiary” and “holding company” shall have the meaning ascribed to them in section 1 of the Companies Act, 2008 (Act No. 71 of 2008));
1.1.3 “activation” means to allow access to the electronic communication Network of Vodacom as contemplated by RICA subject to the Vodacom activation policy and "activated" has a corresponding meaning;
1.1.4 “Call Charge” means a predetermined charge unit of time or data as set out in the Tariff Schedule published by Vodacom from time to time;
1.1.5 “Commencement Date” means notwithstanding the date of signature hereof, the date of activation of the first Subscriber Number allocated to the Subscriber;
1.1.6 “Confidential Information” means any commercial, financial, technical, legal, marketing or other data, know-how, trade secrets or any other information of whatever nature relating to a Party or any member of its Group or their respective businesses which has been disclosed (whether in writing, orally or by another means and whether directly or indirectly) by or on behalf of that Party to the other Party whether before or after the date of the Agreement or issuance of an Agreement (as applicable)
1.1.7 “connection” means the connection of the Subscriber Number radio interface to the Network, via the SIM Card and the Devices;
1.1.8 “Connection Charge” means the initial charge for connecting SIM Card to the Network as specified in the Tariff Schedule as published by Vodacom from time to time;
1.1.9 “Connection Date” means the date of the connection, as set out in the Transaction Schedule;
1.1.10 “Content” means digitally stored and transmitted material, including text, pictures, images, audio, video, games, graphics, software or services incorporating any of these things, including any data transmitted to the Subscriber and/or the User at the special instance and request of the Subscriber and/or User, by a wireless application service provider or other third Party content provider;
1.1.11 ”Controller” means the Party that is defined by applicable Data Protection Legislation as being legally responsible for ensuring that Personal Data and/or Traffic Data are processed in accordance with the obligations of that Data Protection Legislation;
1.1.12 “Data Protection Legislation” means any applicable data protection or data privacy laws applicable in South Africa;
1.1.13 “Data” means any data about the Subscriber, Personal Data and/or Traffic Data;
1.1.14 “Day” means any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa. Unless the context indicates otherwise, any reference to a number of Days shall be a reference to a continuous period;
1.1.15 “Device(s)” means any mobile, transportable or portable cellular mobile terminal, handset or other Devices including the accessories which is approved by any Regulatory Authority and under any legislation concerning such Devices and which is capable of connection by radio interface to the Network;
1.1.16 “GSM” means Global System for Mobile Communications as defined in the European Telecommunications Standards Institute (ETSI) structure of technical specifications;
1.1.17 Intellectual Property Rights means:
(i) rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright, moral rights, databases, domain names, topography rights and utility models, and including the benefit of all registrations of, 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;
(ii) rights in the nature of unfair competition rights and to sue for passing off; and
(iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information;
1.1.18 “Minimum Subscription Term” means a period of 24 (twenty four) months being the minimum period of connection to the Network and/or Services for a SIM Card under a Subscription;
1.1.19 “Monthly Access Fee” means the monthly charge raised by Vodacom on the Subscriber in regard to the connection as set out in the Tariff Schedule published by Vodacom from time to time;
1.1.20 “Network” means the digital cellular mobile telecommunications network using the GSM standard operated by Vodacom and to be made available by Vodacom to the Subscriber under and pursuant to this Agreement;
1.1.21 “Personal Data” means any information that relates to an identified or identifiable individual;
1.1.22 “Processing”/“Processed”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including—
(i) organisation, adaptation or alteration of the information or data,
(ii) retrieval, consultation or use of the information or data,
(iii) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(iv) alignment, combination, blocking, erasure or destruction of the information or data;
1.1.23 “Processor” means the Party that is defined by applicable Data Protection Legislation as carrying out Processing for a Controller;
1.1.24 “Privacy Authority” means the relevant statutory or supervisory authority with responsibility for the applicable Data Protection Legislation in the jurisdiction of the Controller;
1.1.25 “Purchase Order” means the purchase order approved by Vodacom to be used for ordering the Services or Devices;
1.1.26 “Regulatory Authority” means the relevant Regulatory Authority vested with the power and authority in terms of the Independent Communications Authority of South Africa, No. 13 of 2000, as amended, to regulate the operation of the Global System for Mobile Communication and any similar networks in the Republic of South Africa (and any other similar Regulatory Authority outside of the Republic of South Africa in the event that the Device is used by the Subscriber outside of the boundaries of the Republic of South Africa);
1.1.27 “RICA” means Regulation of Interception of Communications and Provision of Communication-related information Act, 2002 (Act 70 of 2002) as amended from time to time, or any act that may repeal or replace it including all regulations and government notices published in terms thereof;
1.1.28 “Services” means such electronic communication services which enable the Subscriber to connect to the Network and use and access the services and facilities provided by, on or over the Network whether using GSM, General Packet Radio Service “GPRS” or 3G (which are network operating standards) and such additional services as are available from time to time to Vodacom;
1.1.29 “SIM Card” means the Subscriber Identity Module card, being a card bearing a Subscriber Number and issued by Vodacom to the Subscriber to enable the User to access the Network;
1.1.30 “Subscriber Number” or “MSISDN number” means the Mobile Station Integrated Services Digital Network number used or to be used by the Subscriber or its authorised User for the purpose of obtaining the Services;
1.1.31 “Subscription” means each SIM Card (connected to the Network);
1.1.32 “Tariff Schedule” means the schedule of charges payable for the Services as published by Vodacom from time to time as approved by the Regulatory Authority where applicable;
1.1.33 “Transaction Schedule” means the schedule detailing each SIM Card, Subscriber Number and Connection Date which is allocated to and utilised by the Subscriber in terms of this Agreement;
1.1.34 “Traffic Data” means any data processed for the purpose of the conveyance of a communication on an electronic communications network and for the billing thereof;
1.1.35 “User” means the relevant authorised delegate of the Subscriber making use of the Services provided by Vodacom in terms of this Agreement;
1.1.36 “Upgrade” means the transaction, effected at the expiry of the Minimum Subscription Term of the relevant Subscription, in terms of which Vodacom supplies to the Subscriber a new Device against payment of any charges therefor and the simultaneous renewal of the relevant Subscription for a further Minimum Subscription Term by the Subscriber. Such upgrade shall at all times, be subject to Vodacom’s policies and procedures applicable thereto from time to time;
1.1.37 “Vodacom” means Vodacom (Pty) Ltd a company with limited liability duly formed and incorporated under the laws of the Republic of South Africa and having registration number 1993/003367/07.
1.2 Words indicating any gender shall include the other genders. Words indicating natural persons shall include legal entities (incorporated or unincorporated), and vice versa. Words indicating the singular shall include the plural and vice versa.
1.3 Where in any definition rights and/or obligations are conferred and/or imposed, same shall be regarded and effect given thereto as a substantive provision of this Agreement.
1.4 Where any definition is contained in any clause (or sub-clause) the meaning/s ascribed shall apply when used elsewhere in this Agreement, unless in the context a contrary intention is expressly indicated.
1.5 The terms, conditions, rights, warranties, promises, undertakings, covenants, obligations and provisions contained, conferred or imposed under this Agreement (and all of which are, for the purposes of this clause 1.5, referred to as “provisions”) are severable and divisible as to each provision or part thereof, and should any provision be found to be invalid or unenforceable by a competent Court (or by an arbitrator or arbitrators appointed in terms of this Agreement), the remaining provisions or parts thereof shall remain of full force and effect.
1.6 Where any particular number of Days is provided for the doing of any act for any purpose, the reckoning shall exclude the first Day and shall include the last Day.
1.7 Where any amounts are referred to in numerals and in words, in the event of any conflict, the amount referred to in numerals shall prevail.
1.8 Schedules to this Agreement shall be deemed to be incorporated in and form an integral part of this Agreement.
1.9 A reference to any statute shall be construed as a reference to that statute as at the Signature Date and as amended or replaced from time to time.
1.10 No provision herein shall be construed against or interpreted to the disadvantage of a Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.
1.11 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 shall not be applied in the interpretation of such general wording or such specific example/s.
2.1 Notwithstanding the date of signature hereof, this Agreement shall be effective from the Commencement date and shall remain in force for indefinite period for as long as there are valid subscriptions in force unless terminated earlier as provided for in this Agreement.
2.2 Each Subscription shall commence on the Connection Date as set out in the relevant Transaction Schedule and shall remain in force for the Minimum Subscription Term whereafter it shall automatically be renewed on a month to month basis unless Upgraded by the Subscriber.
2.3 No Subscriptions shall be Upgraded without the Subscriber’s prior written approval.
3. PROVISIONS OF THE SERVICES
3.1 Vodacom shall, with effect from the Connection Date as set out in each individual Transaction Schedule use all reasonable efforts to make the Services available to the Subscriber at all times and to maintain the connection of the SIM Card to the Network. Vodacom shall make the Services available to the Subscriber throughout the term of the Subscription save and except in circumstances brought about by force majeure as contemplated in clause 17. Due to the constraints of radio and electronic communications, the Services are not fault free.
3.2 Notwithstanding the aforegoing, the Subscriber acknowledges and agrees that service quality, coverage and availability of the Services shall be limited to that provided by the Network and the Services may, from time to time, be adversely affected by physical features such as buildings and underpasses as well as atmospheric conditions and other causes of interference; and it shall not hold Vodacom liable for the non-availability of the Services or any alleged inadequacy of the quality thereof, provided same is not a result of Vodacom’s willful default or gross negligence.
3.3 Vodacom shall provide all Services with all reasonable skill and care.
3.4 Vodacom shall use all reasonable efforts to obtain access for the Subscriber to compatible telecommunications networks when the Subscriber is roaming outside of the territory covered by the Network subject to the applicable terms and conditions. Vodacom shall not be responsible for the performance of such networks, and the Subscriber acknowledges that the quality, coverage, features, functions and services of such networks may be different to the Network.
3.5 The Subscriber acknowledges that the provision of any value-added service(s) by Vodacom will be subject to Vodacom’s standard terms and conditions applicable thereto from time to time.
3.6 The Subscriber shall not willfully and/or intentionally use, and shall take reasonable steps necessary to ensure that Users shall not use the Services and the Devices for:-
3.6.1 the transmission of illegal material;
3.6.2 the transmission of any improper, immoral or offensive material
3.6.3 the transmission of material that contains software viruses or any other disabling or damaging programs;
3.6.4 where applicable to the specific Service, applications which have not been approved in writing by Vodacom for use by the Subscriber;
3.6.5 impairing or damaging the Network or the provision of the Services.
3.7 The Subscriber may use the Services to access the internet, other data networks, websites and other resources or to download Content and load software applications onto Devices that generate communications traffic (both intentionally and accidentally). The Subscriber shall be responsible for all Charges which result from such access. Such access shall be at the Subscriber’s own risk, and if Vodacom is not the Content provider, Vodacom shall not be responsible for such Content. In the event that Vodacom provides the Subscriber with Content directly, separate terms and conditions shall apply for these services.
3.8 From time to time Vodacom will need to carry out maintenance, modification and testing of the Network, during which time Vodacom shall be entitled to suspend the Services. Vodacom may also suspend the Services if there is a technical failure of the Network, to safeguard the security and integrity of the Network or if required by law. Vodacom shall keep all suspensions to a minimum.
3.9 The Subscriber shall not resell, distribute, provide or sub-licence the Services or Devices to any third Party. For the avoidance of doubt, the provision of the Services or Devices to Users shall not be deemed to be reselling.
4. SUPPLY AND ALLOCATION OF SIM CARDS AND SUBSCRIBER NUMBERS
4.1 Vodacom shall allocate and make SIM Cards together with corresponding Subscriber Numbers available to the Subscriber at the latter's special instance and request as may be required from time to time by the Subscriber against payment of the applicable charges by the Subscriber.
4.2 The User shall comply with and implement such procedures and arrangements as are established and notified by Vodacom from time to time in relation to the Subscriber Number, SIM Card, the Network and the use thereof.
4.3 If any Subscriber Number that has been allocated to the Subscriber remains unconnected from the Network for any reason for a continuous period of 90 (ninety) days from date of allocation, Vodacom shall be entitled (but not obliged), after consultation with the Subscriber, to withdraw such Subscriber Number without any liability and to reallocate the number to any other person.
4.4 Vodacom shall provide a facility for the transferring of mobile numbers in relation to Subscriptions in accordance with standard industry practice and applicable law.
4.5 The Subscriber acknowledges and agrees that all rights of ownership attaching to the SIM Cards shall at all times remain vested in Vodacom. Notwithstanding the aforegoing above all risk in and the responsibility for the SIM Cards and the Devices shall pass to the Subscriber upon delivery thereof.
5. DELIVERY OF DEVICES
5.1 Vodacom shall deliver Devices to the delivery address set out in the Purchase Order. A delivery note, quoting the Purchase Order number, shall accompany the Devices. If Devices are not delivered within 10 (ten) Business Days of the date the Purchase Order is accepted, the Subscriber shall notify Vodacom. All risk in the Devices shall pass to the Subscriber upon delivery.
5.2 If the Devices are damaged on delivery, the Subscriber shall notify Vodacom within 10 (ten) Business Days of receipt of the Devices by the User as determined by the date the SIM Card is first inserted in the Device. On receipt of such notice, Vodacom shall send replacement Devices.
5.3 Vodacom shall pass on the benefit of any warranties that Vodacom obtains from the manufacturer of any Devices supplied by Vodacom to the Subscriber.
5.4 If Devices supplied to the Subscriber by Vodacom become faulty for reasons unconnected with the Subscriber’s or any User’s acts, omissions or misuse of the Devices within the manufacturer’s warranty period, the Subscriber shall notify the fault to Vodacom. On receipt of such notice, Vodacom shall at its option either repair or replace the faulty Devices at no cost to the Subscriber.
5.5 The Subscriber acknowledges and agrees that all rights of ownership attaching to any Devices shall vest in Vodacom during the Minimum Subscription Term to which such Devices relate. Upon expiry of the Minimum Subscription Term of the applicable Subscription, ownership of the Devices relating to such Subscription shall pass to the Subscriber, provided that the Subscriber has made payment in full of all amounts of whatsoever nature due by it to Vodacom during the Minimum Subscription Term.
6.1 The Subscriber shall pay to Vodacom the following charges in respect of each individual Subscription:
6.1.1 the Monthly Access Fee;
6.1.2 the Call Charges;
6.1.3 the charges in respect of any value-added services that the Subscriber may subscribe to.
6.2 The charges for Devices and SIM Cards shall be invoiced upon delivery by Vodacom. The Subscriber shall pay to Vodacom all invoiced amounts due in respect of Devices and SIM Cards and applicable connection charges within 30 (thirty) days of receipt of the applicable invoice.
6.3 The Call Charges and the charges in respect of any other Services referred to in clause 6.1.3 shall be invoiced monthly in arrears by Vodacom. The Monthly Access Fee referred to in clause 6.1.1 shall be invoiced monthly in advance. The Subscriber shall pay all invoiced charges due in respect of each Subscription within 30 (thirty) days of receipt of the applicable invoice.
6.4 All charges and fees shall be exclusive of value-added tax and any other taxes, duties and other imposts of whatsoever nature which shall be borne and paid by the Subscriber.
6.5 All payments to be made by the Subscriber to Vodacom shall be made free of deduction, bank charges or commission. The Subscriber shall not have the right to withhold any payment or to set off or reduce such payment by reason of any claim which the Subscriber may have or aver to have against Vodacom.
6.6 The computerised accounts of Vodacom or any certificate signed by any credit manager of Vodacom shall be prima facie proof of all payments made by the Subscriber and the validity of all charges and fees payable by the Subscriber pursuant to this Agreement and of the amounts outstanding at any time by the Subscriber.
6.7 All payments shall be made either at the address of Vodacom as set out in clause 22.1.1 or any other address provided by Vodacom from time to time or by means of electronic transfer of funds directly into the banking account provided by Vodacom in writing.
6.8 Should any payment by the Subscriber not be made on due date thereof, Vodacom shall be entitled to
6.8.1 suspend any further deliveries of any Devices or the provision of any Services until Vodacom has been paid in full. If the non-payment is in respect of a specific User, Vodacom shall be entitled to suspend any further deliveries of any Devices or the provision of any Services in respect of that User until Vodacom has been paid in full in respect of that User; and
6.8.2 to charge interest at a rate of 2 (two) percentage points above the prime bank overdraft rate of interest from time to time quoted by the Standard Bank of South Africa Limited, compounded monthly, as certified by any manager of the said Standard Bank of South Africa Limited whose appointment and designation need not be proved; and
6.8.3 withhold any sums currently owing to the Subscriber by Vodacom by way of credit note or rebate and offset such sums against the sums owing.
6.9 Any User may use the Services provided under this Agreement but the Subscriber shall remain responsible for all obligations relating to the Services, including payment obligations.
6.10 Where the Subscriber disputes that an invoice or any part of it is payable by the Subscriber (“disputed amount”), the Subscriber shall notify Vodacom within 21 (twenty) days of receipt of the invoice of the disputed amount, including details of why the disputed amount is incorrect and/or is being disputed and, if possible, how much the Subscriber considers to be the correct amount. If the Parties are unable to resolve the dispute then the matter shall be referred for resolution in accordance with clause 21. All other Charges not related to the dispute shall be paid in accordance with this clause 6. Payment of an invoice does not prejudice the Subscriber’s or Vodacom’s ability to dispute the accuracy of an invoice within the limitation period under applicable law.
7. DISCOUNTS, SPECIAL PRICING AND CONFIDENTIAL REBATE
7.1 Subject to compliance by the Subscriber with the terms and conditions contained in this Agreement, Vodacom shall grant to the Subscriber the percentage discounts on each Subscriber Number activated on the tariff plans specified in Annexure A hereto. Such discounts shall apply in respect of Monthly Access Fees and national call and SMS charges but shall exclude Connection Charges, roaming charges, content charges, charges relating to international calls and international SMS messages and charges in respect of any other Services.
7.2 In addition to the discounts referred to in clause 7.1 above, Vodacom shall supply the value-added services detailed in Annexure B, as amended from time to time, at the rates set out therein subject to –
7.2.1 the provisions of clause 11 below; and/or
7.2.2 the condition that the provision of such service is not mandatory in terms of a special deal offered by Vodacom.
7.3 In addition to the discounts and special pricing referred to in clauses 7.1 and 7.2 above, Vodacom shall grant to the Subscriber a confidential rebate of on each Subscriber Number activated on the tariffs specified in Annexure A hereto at the rate specified therein. Such confidential rebate shall be calculated as a percentage of charges related to Monthly Access Fees and local and national Call Charges (but excluding international Call Charges, international SMS charges, data calls, roaming charges, charges in respect of content and the charges levied in respect of all or any other Services) and shall be paid to the Subscriber on a monthly basis in arrears in accordance with the provisions set out below. For the purposes of this clause 7.3, “content” shall mean any data transmitted to any Subscriber Number allocated to the Subscriber at the special instance and request of the Subscriber, by a wireless application service provider or other third Party content provider.
7.4 Payment of the confidential rebate will be made by Vodacom within 60 (sixty) days of the last day of the month in respect of which it is payable, provided that, in each case, the Subscriber has submitted its invoice.
8. SUSPENSION OF SERVICES
8.1 Upon the Subscriber defaulting in respect of its payment obligations to Vodacom during the Minimum Subscription Term of any Subscription, as the case may be, Vodacom shall be entitled to suspend the Services and to disable or disconnect the Device, by electronic or other means, from the Network, thereby preventing further use of such Device. The Subscriber indemnifies Vodacom in respect of any claim of whatsoever nature arising out of Vodacom’s exercise of the right conferred hereunder.
8.2 In the event of the theft or loss of any Devices, the Subscriber shall be entitled to request Vodacom to temporarily suspend the Services and to disable or disconnect the Device, by electronic or other means, from the Network, thereby preventing further use of such Device or to flag, on the Network, that the Subscriber Number relating to such Device be identified to facilitate the possible tracing and recovery of such Device, subject to the prevailing policy of Vodacom from time to time and provided that all required information has been supplied by the Subscriber. Vodacom may, in its sole discretion, elect to levy a reasonable charge in respect of such suspension of services and/or flagging of the Device or removal pursuant to a request from the Subscriber. Such charge will be payable by the Subscriber within 30 (thirty) days of date of Vodacom’s invoice therefor.
9. THEFT OR LOSS OF SIM CARD
9.1 The Subscriber undertakes to notify Vodacom in writing of the fact that a SIM Card is lost, stolen, damaged or destroyed. The Subscriber shall not be liable for any loss, liability, damage or expense incurred or suffered by the Subscriber after notification, save that the Subscriber will continue to be liable to pay to Vodacom all Monthly Access Fees relative to such SIM Card for the remainder of the Minimum Subscription Term or any notice period, as the case may be.
9.2 Vodacom will immediately lock or temporarily disconnect from the Network a lost, stolen, damaged or destroyed SIM Card on receipt of the Subscriber’s notification of such incident.
9.3 In addition and in terms of RICA, the Subscriber shall or procure that the User and/or any other person who was in possession, or had control of the SIM Card when it was lost, stolen or destroyed, report to a police official at any police station within a reasonable time after having reasonably become aware of the loss, theft or destruction of the SIM Card and ensure that they obtain (i) written proof in the prescribed form, that the report has been made or, (ii) in the case of a telephonic report, the official reference number of the report. Failure to produce a SIM Card within seven days of a written request by a police official to do so, will, in the absence of evidence to the contrary which raises reasonable doubt, be sufficient evidence that the SIM Card has been lost, stolen or destroyed.
10. OBLIGATIONS OF VODACOM
Vodacom undertakes to –
10.1 ensure that all tariffs offered by Vodacom will comply with tariffs approved by the Regulatory Authority;
10.2 allocate members of its staff to act as account managers and provide service to the Subscriber in all regions;
10.3 provide Users with such training as is necessary to enable them to operate their Devices and derive the maximum benefit from the Services;
10.4 take reasonable steps to provide the services in accordance with the service levels set out in the Service Level Agreement entered into by the Parties where applicable.
11. ADJUSTMENT OF CHARGES AND VARIATIONS OF THE SERVICES
11.1 Notwithstanding anything to the contrary herein contained, Vodacom shall have the right, by written notice to the Subscriber, at all times and from time to time during the period of this Agreement, to vary the charges and fees payable by the Subscriber hereunder and/or the payment date frequency, on one month’s written notice to the Subscriber.
11.2 Notwithstanding the provisions of clause 11.1 above, Vodacom warrants in favour of the Subscriber that any variation in the charges and fees payable by the Subscriber hereunder shall at all times correspond to those charges and fees approved by the Regulatory Authority, if applicable.
11.3 Vodacom reserves the right, without cost or penalty to itself, to vary any name, code or number relating to or used in connection with the Services offered from time to time and the Subscriber indemnifies Vodacom against any liability of whatsoever nature and howsoever arising in connection with such variation.
12. REPRESENTATIONS & WARRANTIES
12.1 The Subscriber warrants and represents to Vodacom, which enters into this Agreement in reliance upon such warranties and representations, that –
12.1.1 all information and details furnished by the Subscriber to Vodacom as at the date of signature hereof by the Subscriber, the Connection Date and from time to time thereafter shall be true and correct in every respect and that at such date/s the Subscriber shall not be aware of any fact, matter or thing which may result in such information being incorrect or varied, save to the extent disclosed by the Subscriber to Vodacom in writing;
12.1.2 it shall notify Vodacom forthwith in writing of any change in such information and/or details;
12.1.3 It shall at all times -
126.96.36.199 not act or omit to act in a way which may damage any property or the Network or however cause the quality of the Services to be impaired;
188.8.131.52 only use or permit the usage of the Subscriber Number and SIM Card as authorised by Vodacom or any Regulatory Authority in regard to the Network, from time to time;
184.108.40.206 provide Vodacom with all information and co-operation reasonably and/or necessarily required by Vodacom;
220.127.116.11 comply with all reasonable instructions given by Vodacom in relation to the use of the Subscriber Number, the SIM Card and the Network;
18.104.22.168 not be entitled to commercially exploit the Services in any manner whatsoever without Vodacom’s prior written consent, including without limitation, the provision of telephony Services to third parties. The Subscriber shall not resell, distribute, provide or sub-license the Services or Devices to any third Party except the Subscriber may provide the Services and the Devices to a User without further charge. and
22.214.171.124 not use or allow others to use the service for any improper, immoral or unlawful purpose.
12.2 All warranties, conditions or other terms (whether express, implied or tacit, by statute, common law or otherwise) as to the quality of the Services, the SIM Cards or the Subscriber Numbers or their fitness for any particular purpose are hereby expressly excluded and Vodacom shall not be liable for any indirect or consequential costs, claims, damages, expenses, loss of profit or any other claims arising out of any negligence or other act or omission or any breach of contract or statutory duty by Vodacom, its employees or agents. Vodacom will pass on any manufacture’s warranties applicable to all Equipment.
12.3 Each of the parties represents and warrants that:
12.3.1 it is an entity duly registered under the laws of the Republic of South Africa and is fully qualified and empowered to own its assets and undertake the activities which it carries on;
12.3.2 it has the power to enter into this Agreement, and to perform the obligations expressed to be assumed by it herein and has duly authorised the person/s signing this Agreement to execute and deliver this Agreement on its behalf;
12.3.3 neither the Subscriber nor Vodacom is to the best of its knowledge in wilful breach of or in wilful default under any Agreement to which it is a Party or which is binding on it or any of its assets;
12.3.4 there are no pending or threatened actions or proceedings before any court or administrative body which might materially adversely affect either Party’s financial position or operations.
12.4 Each of the representations and warranties given by a Party in terms of clause 12 shall –
12.4.1 prima facie be deemed to be a material representation of fact inducing the other Party to enter into this Agreement;
12.4.2 be a separate warranty and in no way be limited or restricted by reference to or inference from any other warranty.
13.1 Neither Vodacom nor the Subscriber can exclude liability to the other which cannot be excluded by law.
13.2 Except as otherwise expressly provided to the contrary either herein, Vodacom shall not be liable in any way to the Subscriber, User or to any third party for any loss or damage of whatsoever nature and/or howsoever arising or for any costs, claims or demands of any nature whether asserted against Vodacom or against the Subscriber 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.
13.3 Neither Vodacom nor the Subscriber shall be liable under this Agreement for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, (including, but not limited to, claims for loss of data, goodwill, profits, use of money or use of the software programs, interruption in use or availability of data or software programs, stoppage of other work or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in delict or otherwise, whether based on this Agreement, any commitment performed or undertaken under or in connection with this Agreement, or otherwise. Vodacom shall not be liable for any consequential losses arising as a result of technical or other failure in the Services. Vodacom does not warrant that the service shall be fault free or free of interruptions.
13.4 Vodacom’s liability for all claims arising under this Agreement shall not exceed in any 12 (twelve) month period the amount of the total Charges paid by the Subscriber in that 12 (twelve) month period. This limitation on damages applies to loss and damages of all types, including but not limited to direct, compensatory, indirect, special, consequential, exemplary, or incidental damages incurred by the Subscriber. This limitation on damages applies as well to liability under contract, delict, and any other form of liability claim.
14.1 Should either Party to this Agreement commit a material breach (other than a breach expressly referred to in this Agreement and in respect of which a remedy has been specified) and remain in default for a period of 14 (fourteen) days after being called upon in writing to remedy such breach, then the Party giving such notice shall be entitled to terminate this Agreement as against the Party to whom notice was given, without prejudice to any other legal rights or remedies, including an action for damages, which may be available to the Party which gave notice.
14.2 Either Party shall be entitled, but not obliged, forthwith to cancel this Agreement without prejudice to any other legal rights or remedies, including but not limited to an action for damages, should the other Party:
14.2.1 cease conducting business in the normal course, or
14.2.2 take steps to place itself, or it places itself, or is placed, in liquidation, whether provisionally or finally; or
14.2.3 commits an act which would be an act of insolvency (as defined in the Insolvency Act, No. 24 of 1936) if committed by a natural person; or
14.2.4 business rescue proceedings begin in respect of that party, as contemplated in section 132(1) of the Companies Act, No. 71 of 2008,
14.2.5 pass a resolution for its winding up or effect or attempt to effect any compromise with its creditors; or
14.2.6 allow any judgement against it to remain unsatisfied for 30 (thirty) days or longer.
14.3 Notwithstanding the provisions of clause 14.1 above, nothing contained in this Agreement shall be construed as precluding the right of Vodacom to suspend the provision to the Subscriber of all or any Services hereunder in the event that the Subscriber has failed to comply strictly with the provisions of clause 6 above.
15.1 Subject to clause 15.4 below, either Party may end a Subscription by serving the other Party with 30 (thirty) days written notice provided that this right may only be exercised so that the Subscription ends on or after the expiry of the Minimum Subscription Term.
15.2 Subject to clause 15.4 either Party may end this Agreement by serving the other Party with 3 (three) months written notice.
15.3 On termination of this Agreement the Subscriber, and its Users shall stop using the Services and Devices and the SIM Cards will be disconnected unless otherwise agreed by Vodacom and the Subscriber.
15.4 If the Subscriber requests the ending of any Subscription which has not fulfilled a Minimum Subscription Term; or ending of this Agreement results in the ending of any Subscription which has not fulfilled a Minimum Subscription Term; the Subscriber shall pay early termination charges. The early termination charges shall be the number of months remaining of the Minimum Subscription Term multiplied by the Monthly Access Fee.
15.5 Termination of the Agreement shall not end or affect any accrued rights or obligations of either Vodacom or the Subscriber.
16. INTELLECTUAL PROPERTY RIGHTS (IPR)
16.1 The Intellectual Property Rights that exist in the Devices and Services and any software supplied under this Agreement belong to Vodacom or its licensors.
16.2 Vodacom agrees to indemnify the Subscriber for all direct losses (including reasonably incurred legal and other professional costs and expenses) payable to a third Party arising out of any settlement or proven infringement of any Intellectual Property Rights as a direct result of the use by the Subscriber of the Services or any Intellectual Property Rights owned by Vodacom and permitted for use by the Subscriber under this Agreement.
16.3 the Subscriber shall comply with the following requirements to benefit from the indemnity in clause 16.2 -
16.3.1 the Subscriber shall promptly notify any claim to Vodacom, giving written details of the claim. In addition the Subscriber shall provide Vodacom with all such documentation and information as Vodacom may reasonably require in relation to such claim provided that Vodacom shall reimburse the Customer its reasonable costs in providing same.
16.3.2 the Subscriber shall not admit liability or make any Agreement or settlement in relation to the claim (unless required by law or a court order) without the prior written consent of Vodacom; and
16.3.3 the Subscriber shall give Vodacom all reasonable assistance at the Subscriber’s own cost to enable Vodacom to contest or defend the claim. Vodacom shall have sole control of all aspects of the defence of such a claim and sole rights to any damages or any counterclaim;
16.4 Vodacom shall not indemnify the Subscriber under clause 16.2 if the claim:-
16.4.1 is connected to the use of products, equipment or services provided by the Subscriber or third Party companies other than as a direct result of the use by the Subscriber of the Services or any Intellectual Property Rights owned by Vodacom and permitted for use by the Subscriber under this Agreement;
16.4.2 results from the combination of other products or services with the Services or Intellectual Property Rights owned by Vodacom;
16.4.3 results from the use of the Services or Intellectual Property Rights owned by Vodacom which are not in accordance with Vodacom’s instructions; i.e. where the infringement or alleged infringement has arisen by virtue of the Subscriber's failure to use the Service in accordance with instructions given by Vodacom
16.4.4 results from modifications or adaptation to or alteration by the Subscriber or any third Party to the Services or Intellectual Property Rights owned by Vodacom without the prior written consent of Vodacom;; or
16.4.5 results from any breach by the Subscriber, or a User of the provisions of this Agreement.
and Vodacom reserves the right to claim direct damages against the Subscriber in such circumstances.
16.5 The Subscriber 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.
17. NON-PERFORMANCE AS A RESULT OF FORCE MAJEURE
17.1 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 arise 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”).
17.2 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, illness, fires, explosions, theft, war (whether declared or not), invasion, foreign enemies, 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.
18.1 The Subscriber agrees to provide to Vodacom all or any information reasonably required by Vodacom to enable Vodacom fully and properly to maintain a comprehensive and accurate database of the Subscriber including (i) the Subscriber’s name, address, bank details, payment records and (ii) details of the Users relating to each Subscription as provided in the Transaction Schedule (iii) as well as any oral or written enquiries directed by the Subscriber to Vodacom.
18.2 During the term of this Agreement, and for 1 (one) year after its termination, unless a longer period is prescribed by law, Vodacom or the Subscriber when receiving information (“the Recipient”) undertakes to the Subscriber or Vodacom (“Disclosing Party”) respectively:-
18.2.1 to keep Confidential Information confidential and not to disclose the Confidential Information to any third Party for any reason or purpose whatsoever without the prior written consent of the Disclosing Party provided that the Recipient shall be entitled to disclose the Confidential Information only to those directors, officers, employees or sub-contractors who need to know the Confidential Information. The Confidential Information shall be supplied by both Parties pursuant to the provisions of this Agreement, and on the understanding that same shall not be used or imparted to any other person or entity whatsoever, save as permitted in this Agreement.
18.2.2 not to use, employ, exploit or in any other manner whatsoever utilise the Confidential Information disclosed to it pursuant to this Agreement for any purpose other than for the purposes of performing its obligations under this Agreement without the prior written consent of the Disclosing Party;
18.2.3 not make any copies and/or reproductions in whatsoever form, nor store same electronically in any medium, of the Confidential Information other than solely for the purposes of performing its obligations under this Agreement;
18.2.4 to ensure its directors, officers, employees and sub-contractors comply with this clause 18 (Confidentiality).
18.3 Clause 18.2 shall not apply to any information which:-
18.3.1 is otherwise in the public domain or becomes publicly available without the breach of any obligation under this Agreement; and/or other than by a breach of clause 18.2;
18.3.2 is provided by a third Party who lawfully acquired it and is under no obligation of confidentiality;
18.3.3 is independently developed by the Party receiving the information or any member of its Affiliates;
18.3.4 is required to be disclosed by law, the Regulatory Authority or the rules of any applicable stock exchange. provided that in these circumstances, the Recipient shall 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 Recipient will disclose only that portion of the information which it is legally required to disclose and the Recipient will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances;
18.3.5 is known to be or is in the possession of the Recipient prior to disclosure thereof by the Disclosing Party and is acquired independently of the Disclosing Party by the Recipient in circumstances that do not amount to a breach of the provisions of this Agreement.
18.4 The Parties acknowledge that they shall not acquire by implication or otherwise, any rights, title or interest or licence in or to or in respect of the Confidential Information disclosed to it pursuant to this Agreement unless specifically provided for in this Agreement.
18.5 The Recipient agrees to protect the Confidential Information of the Disclosing Party using the same standard of care used to safeguard its own information of a confidential nature and that the Confidential Information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.
18.6 Any announcement or public statement relating to this Agreement must be approved by both Parties in writing prior to its release.
18.7 Vodacom shall exercise all reasonable efforts to ensure the security of the Subscriber’s and Users’ communications and shall, in doing so, comply with all applicable laws and any minimum industry standards. However, for reasons beyond Vodacom’s control, it does not promise or guarantee that communications will be completely secure. Vodacom has security and privacy policies and procedures in place to protect confidential and personal information in relation to its clients, suppliers, contractors, associates as prescribed by Data Protection Legislation.
19. DATA PROTECTION
19.1 Both Parties will comply with applicable Data Protection Legislation.
19.2 The Subscriber acknowledges and agrees that Vodacom is the Controller of the Data and that Vodacom shall Process the Data as a result of Services being provided, including but not limited to the following:
19.2.1 the interception, monitoring or recording of communications between the Users’ mobile terminals and other networks or resources to safeguard the security and integrity of the Network and the Services to the extent permitted in terms of applicable legislation;
19.2.2 the monitoring or recording of Users’ communications with Vodacom’s Customer Care Department for the purposes of quality control and training programmes. Vodacom shall use all reasonable endeavours to notify Users that calls to Vodacom’s customer care department may be recorded; and
19.2.3 disclosure to third parties (i) if necessary to give effect to the requirements of this Agreement subject to Vodacom complying with all applicable Data Protection Legislation (ii) if required by applicable law or any court order, or the Regulatory Authority (iii) who are financial agencies (including debt collection or credit reference agencies, fraud monitoring schemes and credit providers) solely for credit vetting of the Subscriber (iv) who are Affiliates of Vodacom solely for purposes authorised in terms of this Agreement.
19.3 Where required by Data Protection Legislation (i) the Subscriber authorises the Processing of the Data and (ii) agrees to use reasonable endeavours to notify Users about:
19.3.1 Processing for maintaining the security, integrity and quality of the Network Services. Such Processing may include interception, monitoring or recording of communications in accordance with applicable law;
19.3.2 Processing for Vodacom’s own market research and analysis in order to develop and improve Vodacom’s products, services and commercial propositions. Such Processing will not include providing Data to third parties or making it publicly available; and
19.3.3 Disclosure of Data by Vodacom to third parties:
126.96.36.199 if required by applicable law, court order or Privacy Authority; or
188.8.131.52 where such third parties are sub-contracted processors of Vodacom and they provide Vodacom with confidentiality undertaking.
19.4 In order to exercise any statutory rights in respect of Personal Data and if required by Data Protection Legislation, the Subscriber will notify Vodacom in writing and by such means as to provide proof of mailing and receipt.
19.5 The Subscriber hereby authorises the transfer of Data from Vodacom to any Affiliate of the Vodacom to the extent required for the provision of the Services.
19.6 The Subscriber undertakes that it has all the necessary authorisations where required by Data Protection Legislation, of Users, for such transfer.
19.7 If Vodacom requires specific authorisation in writing from the Subscriber and/or the User for Data to be Processed, the Subscriber acknowledges that Vodacom will be unable to provide the required Data for the Services until such authorisation is provided.
19.8 Objections to transfer of Personal Data and Traffic Data:
19.8.1 If at any time any User objects to the transfer of Data, the transfer of the Data shall as soon as reasonably practicable be suspended until the dispute is resolved.
19.8.2 If at any time Vodacom receives notice of an objection from a Privacy Authority to the transfer or collection, processing and use of the Data, Vodacom shall, as soon as reasonably practicable suspend or cease the transfer or collection, and take such other steps as the Privacy Authority may direct.
19.9 Vodacom shall:-
19.9.1 inform the Subscriber of any requests or complaints received by Vodacom regarding the processing or utilisation of, the Personal Data processed as part of the Services and shall provide the Subscriber with information reasonably necessary to respond to such requests or complaints (whether made to the Subscriber, Vodacom or a third Party);
19.9.2 inform the Subscriber within a reasonable period of time, of any requests made by third parties for copies of any and all information disclosed by the Subscriber. In addition to this, Vodacom shall provide the Subscriber with any information the Subscriber reasonably requires to investigate such request;
19.9.3 at the Subscriber’s option, return or destroy the Personal Data once it is no longer required for the purposes of performing the Services or any directly related purpose provided there is no legal obligation on Vodacom to keep records in terms of Data Protection Legislation and/or any other applicable laws;
19.9.4 only act on the instructions of the Subscriber in collecting, processing and utilising the Personal Data (and for the avoidance of doubt, this Agreement shall constitute such instructions);
19.9.5 ensure that only authorised personnel have access to the Personal Data;
19.9.6 take reasonably necessary and appropriate technical and organisational measures in accordance with good industry practice against unauthorised or unlawful processing of, and against accidental loss, destruction of or alteration of the Personal Data, and in order to maintain the integrity of the Personal Data;
20. COMPLIANCE WITH THE APPLICABLE LEGISLATION
20.1 The Subscriber shall, at all times, comply strictly with all applicable laws, by-laws, rules, any rule of common law, statute or regulation or other subordinate legislation having the force of law. Without limiting the generality of the aforegoing, the Subscriber shall ensure that:
20.1.1 it complies with applicable provisions of the Electronic Communications Act No. 36 of 2005, as amended from time to time;
20.1.2 it complies with all requirements of RICA and in particular shall verify and record all the information that the Subscriber is obliged to record and store in terms of RICA;
20.1.3 any applicable and prerequisite licenses, consents and authorities required by any local authorities, governmental bodies, and / or in terms of any by-laws or regulations are in place or are obtained;
20.1.4 it complies with all official regulations or directives or requests for information or circulars published from time to time by the Regulatory Authority as may be communicated by Vodacom from time to time;
20.1.5 generally complies with any other applicable legislation in force from time to time in the Republic of South Africa.
20.2 Any reference in this Agreement to "law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government), statutory or regulatory body which has the force of law.
20.3 A reference to any statute shall be construed as a reference to that statute as at the Signature Date and as amended or replaced from time to time.
21.1 Should any disputes or conflict arise (“the Dispute”) in connection with or pursuant to any matter in connection with this Agreement, or the interpretation thereof, including disputes as to its conclusion, binding effect, amendment and termination, other than in respect of provisions which contain their own specific remedies, before that Dispute is referred for resolution by arbitration or litigation, the Parties undertake to enter into negotiations, in good faith, in order to resolve the matter and to arrive, if possible, at an amicable and negotiated solution with regard thereto. In the event that the Parties are unable to resolve the matter, by such negotiation within 5 (five) Days after the date upon which a Party, had, on notice in writing to the other Party, referred the dispute to negotiation (the “Unresolved Dispute”), the Unresolved Dispute shall be referred for resolution in terms of clause 21.2 below.
21.2 Any disputes arising from or in connection with this Agreement 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.
21.3 Notwithstanding the provisions of clause 21.2 above, neither Party shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
22. DOMICILIA AND NOTICES
22.1 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:
22.1.1 Vodacom – Corporate Park Building, 082 Vodacom Boulevard, Vodavalley, Midrand
22.1.2 The Subscriber – ………………………………
22.2 Either Party 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.
22.3 Any notice given by either Party to the other (“the Addressee”) which:
22.3.1 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;
22.3.2 is posted by prepared 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 7th (seventh) day after the date of posting;
22.3.3 is sent by cable or facsimile 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 day following that during which such cable or facsimile is sent, provided that notices sent in this manner shall be confirmed by registered post to the Addressee at its domicilium for the time being.
23. NO ASSIGNMENT
23.1 The Subscriber shall not cede, assign, transfer or delegate any of its rights or obligations in terms of this Agreement to any third Party without Vodacom’s prior written consent, which consent shall not unreasonably be withheld.
23.2 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 third Party or any of its Affiliates without the Subscriber’s consent and if, for any reason whatsoever, the consent of the Subscriber may be required, the Subscriber shall be deemed to have consented thereto in terms of this Agreement. Vodacom shall give written notice of such cession, assignment, transfer, encumbrance or delegation to the Subscriber.
24. GOVERNING LAW AND JURISDICTION
24.1 This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
24.2 The Parties hereto hereby consent and submit to the non-exclusive jurisdiction of the South Gauteng High Court (Johannesburg) of the Republic of South Africa in any dispute arising from or in connection with this Agreement.
25. BENEFIT OF THE AGREEMENT
This Agreement will endure for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or any of them.
26.1 This Agreement together with the Transaction Schedules, service schedules and terms and conditions relating to any Value –added services that the Subscriber may subscribe to from time to time, constitutes the entire Agreement between the parties pertaining to the subject matter hereof.
26.2 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
26.3 No addition to, variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by or on behalf of the duly authorised representatives of both parties. For the purposes of this clause, “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 and/or intervention.
26.4 Each Party warrants to the other Party that it has the power, authority and legal right to sign and perform this Agreement and that this Agreement has been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of this Agreement.
26.5 No indulgence which either Party (“the grantor”) may grant the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
26.6 Nothing in this 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.
27. COSTS OF THIS AGREEMENT
Each Party will bear and pay its own costs of and incidental to the negotiation, preparation and signature of this Agreement.