General terms and conditions

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1. Interpretation 

16. Infringement of Intellectual Property Rights

2. Definitions

17. Limitation of liability

3. Commencements and duration

18. Confidential Information

4. Service Schedule

19. Assignment & Sub-contracting

5. Charge and Fees

20. Termination

6. Adjustment of Charges

21. Dispute Resolution

 7. Customer Obligations

22. Force Majeure

 8. The Equipment

23. Domicilia 

 9. Warranties

24. Governing Law 

 10. Content and Communications

25. Relationships 

 11. Change Control

26. Binding on Successors and Related Parties

 12. New Technologies and Additional Services

27. Non-variation

 13. Discontinuation or Substitution of Technologies

28. Invalidity and Severability

 14. Suspension of the service

29. Waiver

 15. Intellectual PropertyNew Link

30. Whole Agreement 

 Master Airtime Agreement

1.1 In this Agreement unless the context indicates a contrary intention -

1.1.1 an expression which denotes any gender includes the other genders and a natural person includes an artificial person and          vice versa;

1.1.2 the singular includes the plural and vice versa;

1.1.3 when any number of days is prescribed, same shall be reckoned exclusively of the first and inclusively of the last day                  unless the last day falls on a Saturday, Sunday or public holiday, in which case it shall be inclusive of the first day                        following the said Saturday, Sunday or public holiday;

1.1.4 if any provision in the definition clause is a substantive provision conferring rights or imposing obligations on a party, then          notwithstanding that such provision is contained in this clause, effect shall be given thereto as if such provision were a                substantive provision in the body of the agreement;

 1.1.5 any reference in this agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at             the date of signature hereof and as amended and/or re-enacted from time to time;

 1.1.6  the head notes to the clauses to this agreement are inserted for reference purposes only and shall not affect the                          interpretation of any of the provisions to which they relate; and
 1.1.7 no provision herein shall be construed against or interpreted to the disadvantage of any party by reason of such party                 having or being deemed to have structured, drafted or introduced such provision. 

2.1 Unless otherwise determined by the context, the following words will bear the meanings assigned to them hereunder –

2.1.1“this Agreement” means these General Terms and Conditions together with all Service Schedules, the                                       Acceptable Use Policy and any other annexures, schedules and/or amendments from time to time; 

2.1.2 “Access Codes” means usernames, passwords, email addresses and other unique identifiers allowing the Customer                 access to the Services;

2.1.3“Acceptable Use Policy” means Vodacom’s Acceptable Use Policy posted on www.Vodacombusiness.co.za, as                        amended from time to time by Vodacom in its sole discretion;

          “Business Days” means Monday to Friday, both days inclusive, but excluding officially promulgated South African public              holidays that fall on or between a Monday and Friday; 

2.1.4“Business Hours” means those hours between 08:00 to 17:00 Monday to Friday on any Business Day; 

2.1.5“Commencement Date” means ………………., notwithstanding the date of signature of this Agreement;

2.1.6"ECNS provider" means electronic communications network services providers licensed to provide those services in                 terms of the Electronic Communications Act 36 of 2005, other than Vodacom;

2.1.7“Equipment” means equipment supplied by Vodacom to the Customer, on the basis of a loan or rental, to enable the                 Customer to utilise the Services; 

2.1.8“the Network” means the physical wireless and wired network operated and made available by Vodacom as well as a               virtual network (using Multi Packet Label Switching or related technologies) operated and made available by Vodacom               over its own network as well as the networks of ECNS providers;

2.1.9 “Service Schedule” means, in respect of each Service which Vodacom provides to the Customer, the Service Schedule             concluded between the parties setting out, inter alia, a description of the Service, the fees payable, the service levels                 applicable.

 2.1.10“the System” means, collectively, the Network, any network provided by an ECNS provider (if applicable), the Equipment and the Customer’s equipment.

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    3.1 This Agreement will commence on the Commencement Date and shall continue for an indefinite period unless terminated by either party on not less than 90 (ninety) days written notice of its intention to so terminate. For the avoidance of doubt, it is recorded that upon termination of all Service Schedules, this Agreement shall ipso facto terminate.

    3.2 Notwithstanding any termination of this Agreement in terms of clause 3.1 above, such termination shall not affect the validity of any Service Schedule in force at the time of termination which shall continue to be of full force and effect and subject to the terms and conditions herein contained until such time as all obligations of each party vis-à-vis the other have been discharged in full.

    3.3 Each Service Schedule shall commence on the date provided for therein and shall continue for the period provided for therein subject to termination as provided for therein.

    3.4 Notwithstanding the provisions of clause 3.1 above, the Customer may, on not less than 1 (one) calendar month’s written notice to Vodacom, cancel any Service Schedule during the initial period provided for therein, subject to payment by the Customer of the then-applicable early termination penalty. For clarity and the avoidance of doubt, individual services comprising of a Service Schedule may not be terminated without written agreement between the parties and terms applicable to such termination.

     3.5 Any notice of termination by the Customer pursuant to the provisions of this clause shall not be valid where the Customer is in arrears with its payment obligations to Vodacom.

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    4.1 Each Service Schedule shall be deemed to be a separate agreement on the terms and conditions set out herein and the termination of any specific Service Schedule shall not be deemed to constitute a termination of any other Service Schedule or this Agreement, all of which shall continue to be of full force and effect.

    4.2 In the event of any conflict or inconsistency between a Service Schedule and the main body of the Agreement, then the provisions of the Service Schedule shall prevail.

    4.3 Each Service Schedule shall be catalogued numerically for identification purposes and shall provide                                       4.3.1 a description of the Service to be rendered;
    4.3.2 the effective date, initial period and termination period particular to the Service;
    4.3.3 the pricing and payment terms as well as any discounts applicable to the Service;
    4.3.4 the Key Performance Indicators (“KPI’s”), means of measurement thereof and required service levels;
    4.3.5 escalation procedure in the event of a fault;
    4.3.6particular undertakings and terms and conditions not contained in this Agreement which pertain to the Service;and  
    4.3.7any other information required as provided for in this Agreement.

    5.1 The charges and fees payable by the Customer in respect of a Service shall be specified in the relevant Service Schedule as shall the applicable payment terms and any discounts. 


    5.2 Where any Service is activated by Vodacom on any day of a month other than the first day, the Customer shall be charged a pro-rata portion of the monthly fees in respect of that month.


    5.3 Save as expressly stated to the contrary, all prices specified in any Service Schedule shall be exclusive of:


    5.3.1 value-added tax and any other taxes, duties and other imposts of whatsoever nature which shall likewise, be payable by the Customer. If Vodacom is required to be registered for value added tax and any other taxes (including without limitation instances where reverse tax is applicable), duties or imports, in the territory where the Customer is a tax resident, then the Customer shall attend to such registration and make the required payments on behalf of Vodacom. The Customer shall be liable for and hereby fully indemnifies Vodacom against any penalties and/or interest levied against Vodacom in respect of delayed payments or non compliance by the Customer with the provisions of this clause; and

    5.3.2 service fees relating to any ECNS provider which are procured by the Customer directly and not by Vodacom either on its own or on the Customer’s behalf and which are not specified in a Service Schedule, for which the Customer agrees to make payment directly to the ECNS provider on such terms as are agreed between the ECNS provider and the Customer.

    5.4 If Vodacom is required to pay any withholding taxes imposed by the government or taxing authority of any country, state, province, municipality or any other government jurisdiction arising as a result of this Agreement, in the territory where the Customer is a tax resident, then the Customer shall attend to make the required payments on behalf of Vodacom. The Customer shall be liable for and hereby fully indemnifies Vodacom against any penalties and/or interest levied against Vodacom in respect of delayed payments or non compliance by the Customer with the provisions of this clause.

    5.4.1 Upon payment of withholding tax costs by the Customer in terms of this clause 5.4, the Customer shall, provide Vodacom with a valid tax receipt certificate issued by the relevant tax authority as evidence that the Customer has accounted to the relevant tax authority for withholding tax costs.

    5.4.2 In the event that a double taxation treaty applies which provides for a reduced withholding tax rate, the Customer shall pay the reduced tax rate subject to the issuance of a valid exemption certificate by the competent tax authority.  

    5.5 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 Customer and the validity of all charges and fees payable by the Customer pursuant to this Agreement and of the amounts outstanding at any time by the Customer.

    5.6 Vodacom may, in its sole discretion, levy interest equal to  2% (two per centum) above the prime rate of one of the 4 (four) large banks in South Africa, selected by Vodacom on any unpaid or overdue amount.  In addition, should any payment instrument tendered by the Customer or amount drawn by Vodacom in terms of a debit order authority not be met by the Customer’s bankers, Vodacom reserves the right, in its sole discretion, to levy a fee in regard thereto.

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      6.1 Notwithstanding anything to the contrary herein contained, Vodacom shall have the right, on each anniversary of the effective date of a Service Schedule, by written notice to the Customer, to vary the charges and fees payable by the Customer thereunder, on 1 (one) month’s notice to the Customer, provided that:

      6.1.1 in the case of Service which are not regulated by a regulatory authority, any increase levied by Vodacom in terms of this clause 6 shall not exceed the latest published Consumer Price Index excluding interest rates on mortgage bonds (“CPI”) as published from time to time by Statistics South Africa, or any other relevant Government Agency on the anniversary date. For the avoidance of doubt, the latest officially published CPI figures immediately preceding the anniversary date will be used in the determination of such increase; and 

      6.1.2 in the case of Services which are regulated by a regulatory authority, any increase levied by Vodacom in terms of this clause 6 shall not exceed those charges and fees lodged with and approved by the regulatory authority.

      6.2 Without in any way derogating from the provisions of this clause 6, Vodacom undertakes to the Customer that it shall review its charges to the Customer in the event of a downward adjustment of its tariffs in respect of the Services, to ensure that its charges to customers in respect of like Services are, in aggregate, comparative.

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      7.1 The Customer shall, at all times, comply strictly with all restrictions imposed on computer networks by legislation through which any information and/or data transmitted by the Customer passes. In particular, the Customer shall at all times comply with the Acceptable Use Policy.

      7.2 The Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
      7.2.1 in any manner damages Vodacom’s technical infrastructure or the Network any part thereof; 
      7.2.2 impedes, impairs or precludes Vodacom from being able to provide the Services in a reasonable and businesslike manner; and/or constitutes an abuse or misuse, whether malicious or otherwise,  of the Services.

      7.3 The Customer shall not:

      7.3.1 allow any person other than its personnel and authorised parties, access to the Services; and/or

      7.3.2 use or allow others to use the Services for any improper, immoral or unlawful purpose.

      7.4 The Customer acknowledges that all or any Access Codes allocated to or created by the Customer are personal to the Customer. The Customer undertakes to maintain the security and confidentiality of Access Codes and hereby indemnifies Vodacom against any loss or damage suffered by Vodacom arising out of the disclosure by the Customer of any Access Code.

      7.5 Notwithstanding the provisions of clause 7.4 above, the Customer acknowledges that all Access Codes allocated to the Customer by Vodacom are and shall at all times remain the property of Vodacom and are provided to the Customer for its use for the duration of the Service Schedule in terms of which they are allocated or created. The Customer shall not be entitled to sell, lease, transfer, assign, encumber or otherwise alienate its rights in and to such Access Codes.

      7.6 The Customer acknowledges that any third party services and products accessible or used in conjunction with any Services are provided subject to the terms and conditions specified by the third party providers thereof. 

      8.1 The Customer acknowledges and agrees that all rights of ownership in and to the Equipment shall, at all times, remain vested in Vodacom and accordingly, the Customer shall not hold itself out as the owner of the Equipment, nor sell, transfer, dispose of, mortgage, charge or pledge the Equipment or permit the possession of the Equipment to be taken away from the Customer. 

      8.2 Notwithstanding the provisions of clause 8.1 above, all risk in and to the Equipment shall pass to the Customer on delivery thereof to the Customer and the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.

      8.3 The Customer shall:

      8.3.1 display in relation to the Equipment no lesser degree of care than it would had same belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;

      8.3.2 not procure repair or maintenance of the Equipment by any third party without the prior written consent of Vodacom or in any other manner tamper with the Equipment; 

      8.3.3 not make any alteration or modification to the Equipment nor use the Equipment or permit the Equipment to be used for any purpose for which it is not designed or in contravention of any applicable law or regulation; 

      8.3.4 not affix the Equipment to any land or building in such a manner as to become a fixture; 

      8.3.5 allow Vodacom to affix or to cause to be affixed to the Equipment plates or the markings indicating the ownership of the Equipment; and 

      8.3.6 subject to the Customer’s reasonable security restrictions, allow Vodacom and persons authorised by it, at all reasonable times during Business Hours, access and entry to any premises where the Equipment is situated for purposes of inspecting the Equipment.
       

      8.4 Vodacom shall be entitled to recover from the Customer any costs relating to repairs, replacements, adjustments or error corrections arising out of a failure by the Customer to abide by the provisions of this clause 8 and the Customer shall make payment to Vodacom in respect of such costs upon demand.

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        9.1 Vodacom warrants unto and in favour of the Customer that:

        9.1.1 it has the necessary competency to fulfil its obligations as set out in this Agreement read together with the relevant Service Schedule; 

        9.1.2 the Services shall be of the industry standards in terms of quality and service and shall be rendered in a proper, professional and workman-like manner by appropriately qualified personnel; 

        9.1.3 to the best of its knowledge, no claim, lien or action exists or is threatened against Vodacom which will interfere with the Customer’s rights under this Agreement; and

        9.1.4 all regulatory licenses, permits, approvals, authorisations and consents required to perform the Services have been obtained and are valid as at the Commencement Date.

        9.2 Save as expressly otherwise stated in this Agreement or any Service Schedule, Vodacom does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the  Services (whether express, implied or tacit, by statute, common law or otherwise).

        9.3 Where any equipment is purchased by the Customer from Vodacom, Vodacom undertakes to cede to the Customer all warranties and/or guarantees on the equipment provided by the manufacturer and shall provide the Customer with all documentation detailing the terms and conditions thereof as well as any exclusions therefrom.

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        10.1 The Customer acknowledges and agrees that in the event that Vodacom, in its sole discretion or if obliged by any applicable law, determines that any content hosted by Vodacom, published by Vodacom on the Customer’s behalf or transmitted by the Customer by means of the Service (“Content”) is in violation of any law or the Acceptable Use Policy, Vodacom shall be entitled to:
        10.1.1 request the Customer to forthwith remove such Content; 

        10.1.2 require the Customer to forthwith amend or modify such Content; 

        10.1.3 terminate the Customer’s access, without notice, to any Service) and/or  suspend or terminate any Service; and/or 

        10.1.4 delete, without notice, the offending Content.

        10.2 The Customer acknowledges that any exercise by Vodacom of its rights in terms of clause 10.1 above shall not be construed as an assumption of liability by Vodacom for the Content and/or the publication thereof whether or not Vodacom has knowledge of such Content, having cognisance of the fact that Vodacom has no general obligation in law to monitor Content. The Customer hereby indemnifies Vodacom and holds it harmless against any liability, claims, fines or other penalties of whatsoever nature imposed on Vodacom by any person arising either directly or indirectly out of the Content or the publication or hosting or transmission thereof.
         
        10.3 The Customer further acknowledges that Vodacom has certain obligations in terms of the Regulation of Interception of Communications and Provision of Communications-related Information Act concerning the lawful interception of communications and provision of information.  The Customer hereby indemnifies Vodacom and holds it harmless against any liability, claims, fines or other penalties as a result of Vodacom complying with such obligations.

        11.1 Should either party wish to propose any change or amendment to any Service Schedule, such party shall address a written proposal to the other party detailing the desired changes or amendments.

        11.2 Should the written proposal envisaged clause 11.1 above be made by:

        11.2.1 Vodacom, Vodacom shall detail, in such proposal, the technical impact of the proposed changes or amendments, delivery dates, cost variations, if any, and the effect on the terms and conditions of the Agreement and the applicable Service Schedule and the Customer shall revert with a written response to Vodacom’s proposal within a 30 (thirty) day period; 

        11.2.2 the Customer, Vodacom shall, within a 30 (thirty) day period, revert to the Customer with a written response detailing the technical impact of the proposed changes or amendments, delivery dates, cost variation, if any, and the effect on the terms and conditions of the Agreement and the applicable Service Schedule.

        11.3 No alteration or variation of this Agreement or any Service Schedule shall be of any effect unless and until agreed upon between the parties in writing. Pending agreement between the parties in respect of any variation or alteration of this Agreement or any Service Schedule, Vodacom shall provide the Services in accordance with such agreed terms and conditions that have been reduced to writing and signed by or on behalf of the parties.

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          12.1 Vodacom shall provide the Services using such up-to-date technology which is made generally available to its other customers.  Vodacom shall promptly notify the Customer of potential enhancements and improvements that it believes the Customer may wish to consider implementing.  If the Customer learns of a potential service enhancement or improvement to an existing Service (“New Technologies/Additional Service”), provided that such enhancement or improvement is offered by Vodacom to its customers, the Customer may request information from Vodacom in order to evaluate its interest in implementing such enhancement or improvement.

          12.2 Upon the Customer’s request, Vodacom shall provide the indicative price, performance specifications, installation interval, or effects then known to Vodacom of any New Technologies/Additional Service. The provision of the new technology or additional services shall be subject to Vodacom standard charges and the then applicable standard terms and conditions.

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          16.1 Vodacom hereby indemnifies the Customer against any damages (including costs) suffered or sustained by the Customer or any third party in respect of a claim that possession or use of the Service or any part thereof (“the infringing Service”) supplied by Vodacom  to the Customer infringes any patent, copyright or other intellectual property rights of any third party, provided that:

          16.1.1 the infringement or alleged infringement has not arisen by virtue of the Customer's failure to use the infringing Service in accordance with instructions given by Vodacom or from any modifications or adaptation to or alteration of the infringing Service by a third party without the prior written consent of Vodacom; 

          16.1.2 the Customer shall have notified Vodacom as soon as practicably possible of any actual, alleged or suspected infringement and shall have made no admission of liability in respect of any such claim; 

          16.1.3 Vodacom shall have sole control of all aspects of the defence of such a claim and sole rights to any damages or any counterclaim; and

          16.1.4 the Customer shall provide Vodacom with all such documentation, information and assistance as Vodacom may reasonably require to assist it in relation to such claim provided that Vodacom shall reimburse the Customer its reasonable costs in providing same.
           

          16.2 If any such claim for which Vodacom is liable to indemnify the Customer under clause 16.1 above is upheld by law or in the reasonable opinion of the Customer is likely to be upheld by law, then Vodacom shall be obliged to either

          16.2.1 modify or replace the infringing Service or Product any part thereof to the extent that same is rendered non-infringing provided that such modification or replacement does not materially alter the performance or functionality of the infringing Service; or

          16.2.2 to procure the right for the Customer to continue using the infringing Service.

          17.1 Except as otherwise expressly provided to the contrary either herein or in the applicable Service Schedule, Vodacom shall not be liable in any way to the Customer or to any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Vodacom or against Customer by any party arising directly or indirectly out of the Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be.

          17.2 Subject to clause 17.1 above, the maximum liability of Vodacom under this Agreement in respect of any claim for direct damages by the Customer in respect of any wilful misconduct and/or negligent act or omission of Vodacom or any person for whose acts and omissions Vodacom is vicariously liable in law, for any event or series of connected events, whether as a result of breach of contract, delict or any reason whatsoever, shall be limited to the total fees, excluding Value Added Tax, paid by the Customer to Vodacom in the 12 (twelve) month period immediately preceding the month in which the incident arose which gave rise to the claim.

          17.3 Under no circumstances whatsoever shall any party shall be liable for any indirect, incidental or consequential damages, (including, but not limited to, damages for loss of business, profits, revenue, data, use, or other economic advantage) incurred by the other party, arising out of or relating to this Agreement and/or any Service Schedule.

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            18.1 For the duration of this Agreement and a period of 1 (one) year thereafter, each party hereby undertakes to the other to:

            18.1.1 keep confidential all information  (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or entering into or to performance of this Agreement (“the information");

            18.1.2 not without the other party’s written consent to disclose the information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in the implementation, of this Agreement and who have a need to know the same;  

            18.1.3 to use the information solely in connection with the implementation of this Agreement and not for its own or the benefit of any third party; and

            18.1.4 protect the confidential information of the providing party using the same standard of care used to safeguard its own confidential information and agrees further to store and handle the confidential information in such a way as to prevent any unauthorised disclosure thereof.

            18.2 The provisions of clause 18.1 above shall not apply to the whole or any part of the information to the extent that it is:

            18.2.1 trivial or obvious;

            18.2.2 already in the other's possession other than as a result of a breach of this clause;  

            18.2.3 independently developed by one party prior to the execution of this Agreement;  

            18.2.4 in the public domain through no fault of the receiving party; or 

            18.2.5 is disclosed by the receiving party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulations in force from time to time;  provided that in these circumstances, the receiving party shall, to the extent permitted by law, advise the disclosing party in writing prior  to such disclosure to enable the disclosing party to take whatever steps it deems necessary to protect its interest in this regard;  provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and the receiving party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances.

            18.3 Each party hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the information and the provisions of this clause 18 and without prejudice to the generality of the aforegoing, to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 18.

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            16.1 Vodacom hereby indemnifies the Customer against any damages (including costs) suffered or sustained by the Customer or any third party in respect of a claim that possession or use of the Service or any part thereof (“the infringing Service”) supplied by Vodacom  to the Customer infringes any patent, copyright or other intellectual property rights of any third party, provided that:

            16.1.1 the infringement or alleged infringement has not arisen by virtue of the Customer's failure to use the infringing Service in accordance with instructions given by Vodacom or from any modifications or adaptation to or alteration of the infringing Service by a third party without the prior written consent of Vodacom; 

            16.1.2 the Customer shall have notified Vodacom as soon as practicably possible of any actual, alleged or suspected infringement and shall have made no admission of liability in respect of any such claim; 

            16.1.3 Vodacom shall have sole control of all aspects of the defence of such a claim and sole rights to any damages or any counterclaim; and

            16.1.4 the Customer shall provide Vodacom with all such documentation, information and assistance as Vodacom may reasonably require to assist it in relation to such claim provided that Vodacom shall reimburse the Customer its reasonable costs in providing same.
             

            16.2 If any such claim for which Vodacom is liable to indemnify the Customer under clause 16.1 above is upheld by law or in the reasonable opinion of the Customer is likely to be upheld by law, then Vodacom shall be obliged to either

            16.2.1 modify or replace the infringing Service or Product any part thereof to the extent that same is rendered non-infringing provided that such modification or replacement does not materially alter the performance or functionality of the infringing Service; or

            16.2.2 to procure the right for the Customer to continue using the infringing Service.

            17.1 Except as otherwise expressly provided to the contrary either herein or in the applicable Service Schedule, Vodacom shall not be liable in any way to the Customer or to any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Vodacom or against Customer by any party arising directly or indirectly out of the Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be.

            17.2 Subject to clause 17.1 above, the maximum liability of Vodacom under this Agreement in respect of any claim for direct damages by the Customer in respect of any wilful misconduct and/or negligent act or omission of Vodacom or any person for whose acts and omissions Vodacom is vicariously liable in law, for any event or series of connected events, whether as a result of breach of contract, delict or any reason whatsoever, shall be limited to the total fees, excluding Value Added Tax, paid by the Customer to Vodacom in the 12 (twelve) month period immediately preceding the month in which the incident arose which gave rise to the claim.

            17.3 Under no circumstances whatsoever shall any party shall be liable for any indirect, incidental or consequential damages, (including, but not limited to, damages for loss of business, profits, revenue, data, use, or other economic advantage) incurred by the other party, arising out of or relating to this Agreement and/or any Service Schedule.

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              18.1 For the duration of this Agreement and a period of 1 (one) year thereafter, each party hereby undertakes to the other to:

              18.1.1 keep confidential all information  (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or entering into or to performance of this Agreement (“the information");

              18.1.2 not without the other party’s written consent to disclose the information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in the implementation, of this Agreement and who have a need to know the same;  

              18.1.3 to use the information solely in connection with the implementation of this Agreement and not for its own or the benefit of any third party; and

              18.1.4 protect the confidential information of the providing party using the same standard of care used to safeguard its own confidential information and agrees further to store and handle the confidential information in such a way as to prevent any unauthorised disclosure thereof.

              18.2 The provisions of clause 18.1 above shall not apply to the whole or any part of the information to the extent that it is:

              18.2.1 trivial or obvious;

              18.2.2 already in the other's possession other than as a result of a breach of this clause;  

              18.2.3 independently developed by one party prior to the execution of this Agreement;  

              18.2.4 in the public domain through no fault of the receiving party; or 

              18.2.5 is disclosed by the receiving party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulations in force from time to time;  provided that in these circumstances, the receiving party shall, to the extent permitted by law, advise the disclosing party in writing prior  to such disclosure to enable the disclosing party to take whatever steps it deems necessary to protect its interest in this regard;  provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and the receiving party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances.

              18.3 Each party hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the information and the provisions of this clause 18 and without prejudice to the generality of the aforegoing, to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 18.

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