Terms and Conditions for Mobile Services – Portal purchase

1. Agreement:
   • For purposes of these Terms and Conditions, any reference to you / your/ Customer is reference to the Company who has entered into this Agreement by subscribing to the Services.
   • Your acceptance of a quote or proposal, alternatively by activating a subscription(s) to the mobile service constitutes your acceptance of these Terms and Conditions.
   • You hereby warrant to Vodacom that you have the required legal capacity to enter into and be bound by this Agreement on behalf of the Company.
   • This Agreement is separate and distinct from any existing Agreement between you / your Company and Vodacom which may have been entered into in respect of the same or similar Services.
   • Vodacom reserves the right to modify the Service(s) where reasonably required and may from time to time expand on these Terms and Conditions. You will be bound by all current Terms and Conditions that prevail at a specific point in time.
   • No standard terms or conditions on any company / customer purchase order or other customer purchase documents shall form part of this Agreement or be of any force of effect.
   • Nothing in this Agreement is intended to prevent you from exercising any rights you may have under the Consumer Protection Act, 2008.
2. Service Conditions
   • Use of Services: Customer: (a) is responsible for anyone Customer allows to use the Services, including payment obligations, whether to Vodacom, Vodacom Group Companies, or to third parties (such as providers of content, goods, or services); (b) must comply with the AUP; and (c) may not resell, distribute, provide, or sub-licence the Services to any third party. Unless provided by Vodacom as part of the Service, Vodacom is not responsible for any content, goods, or services that are accessed, downloaded, or transmitted by Customer through use of the Services.
   • Customer Information: Customer and its Users must provide all necessary information and complete all documentation (such as identification, registration, VAT, Other Tax, and billing details) required by Vodacom or an NRA for the purposes of the Services.
3. Intellectual Property Rights (“IPR”)
   • Ownership: Vodacom and Customer each retain ownership of their own IPR. Vodacom has sole ownership of the IPR in materials that it creates and invests in.
   • Licence: Vodacom grants to Customer a licence to use the IPR owned by it or Vodacom Group Companies that is required in order for the Services to be rendered, as may be further limited in this Agreement. Each licence is: (a) valid only for the duration of this Agreement; (b) not transferable, not sub-licensable, and non-exclusive; and (c) contains no right to copy, modify, reverse engineer, adapt, translate, decompile, disassemble, or correct errors.
   • Third Party Licences: When third party licenses apply to Services or Equipment, Customer and Vodacom must comply with the terms of the relevant third party license (“Third Party License”). Vodacom’s liability to Customer for third party claims for infringement of IPR in Equipment does not exceed the liability of the OEM or reseller to Vodacom.
   • Indemnity: Vodacom shall defend and indemnify Customer for amounts paid to a third party for infringement of that third party's IPR resulting from use by Customer of the Services in accordance with this Agreement (“IPR Claim”).
   • Indemnity Process: To receive indemnification, Customer must: (a) promptly notify Vodacom and provide full written details of any actual or potential IPR Claim; (b) not admit liability or take any action that may prejudice defence of the IPR Claim; (c) not admit or settle the IPR Claim without Vodacom's prior written consent; (d) give Vodacom all reasonable assistance and sole conduct of the defence of the IPR Claim; (e) mitigate its losses; and (f) use modifications to the Services provided by Vodacom to avoid potential infringement.
   • Indemnity Restrictions: Vodacom has no liability in relation to any IPR Claim and Customer is responsible for any claims for: (a) the use of materials provided by Customer; (b) Vodacom's compliance with instructions given by Customer; (c) the combination of the Services with products or services not provided by or authorised by Vodacom; (d) Customer's failure to follow Vodacom's instructions; (e) unauthorised Customer modifications to the Services; (f) Customer's failure to adopt modifications made by Vodacom to the Services; or (g) Customer's breach of this Agreement or any Third Party License.
   • Other Remedies: If any aspect of the Services is the subject of a claim for IPR infringement, Vodacom, at Vodacom’s option, may: (a) modify the Service so as to avoid infringement; (b) procure the right for Customer to continue to use the Service; or (c) terminate the Service without liability for such termination.
   • Entire Remedy: Clause 3 states Customer’s only remedies for IPR infringement.
4. Warranties: Each Party warrants that it has full power and authority to enter into this Agreement and to perform its obligations under this Agreement. Unless expressly set out in the Service Schedules, all warranties, representations, duties and conditions that are implied by statute or otherwise are expressly excluded to the extent permitted by Applicable Law.
5. Payment and Tax
   • Payment: Charges are exclusive of VAT and Other Taxes. Customer shall pay the Charges, VAT, and Other Taxes within 30 days of invoice date. Vodacom shall provide Customer an appropriate tax invoice for VAT. For VAT purposes, only the establishment at the Customer’s registered address will receive and use the Services.
   • Invoice Disputes: Customer may only dispute invoiced Charges with reasonable cause by: (a) notifying Vodacom in writing prior to the due date of the invoice; (b) including sufficient details of the dispute and how much it believes is payable; and (c) paying all undisputed amounts by the due date. Following resolution of an invoice dispute, Vodacom will promptly issue a credit or Customer will promptly make payment as applicable, as the case may be.
   • Late Payment: If Customer does not pay undisputed Charges by the due date, Vodacom may charge interest on the unpaid amount at the applicable at the prime 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) , withhold any sums owed to the Customer by Vodacom, and offset such sums against the unpaid Charges.
   • Withholding Tax: The parties agree to cooperate and take all reasonable steps (including the provision of withholding tax certificates) to obtain any available tax relief from withholding tax. If Customer is required by Applicable Law to make any deduction or withholding from any payment under this Agreement, Customer shall also pay to Vodacom such additional amount so that Vodacom receives the full amount invoiced by the due date before application of withholding or deduction.
6. Sanctions and Export Controls: Each Party, in the context of this Agreement: (a) must comply with Sanctions and Trade Law; (b) may not cause the other Party or Vodacom Group Companies or Customer Group Companies, as applicable, to directly or indirectly breach Sanctions or Trade Law; (c) must provide assistance, documentation, and information that the other Party reasonably requests regarding compliance with Sanctions and Trade Law; and (d) must notify the other Party in writing promptly if it or Vodacom Group Companies or Customer Group Companies, as applicable, become subject to special Sanctions and Trade Law restrictions. Each Party has the right to terminate this Agreement for material breach without liability to the other Party if the other Party breaches this clause. If Sanctions and Trade Law prohibits the export, import, or use of Equipment or other element of the Service in a territory, Customer will not be able to use the Service in that territory.
7. Bribery and Corruption: The Parties shall comply and act in accordance with all applicable laws in relation to bribery and corruption including but not limited to PoPIA, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977 (ABC Laws) and shall notify Vodacom of any actual, suspected or attempted breach of ABC Laws. Breach of this clause shall entitle Vodacom to terminate this Agreement and shall further entitle Vodacom to all outstanding payments due under this Agreement.
8. Service Monitoring: Customer gives express consent for Vodacom to monitor Customer’s use of the Service (and disclose and otherwise use the information obtained) to the extent allowed by Applicable Law in order to: (a) comply with Applicable Law; (b) protect the Network from misuse; (c) protect the integrity of the public internet and/or Vodacom’s Networks; (d) determine if Customer has breached any conditions or restrictions on use of the Service; (e) provide the Service; and/or (f) take other actions agreed or requested by Customer.
9. Confidentiality: Each Party shall handle the other Party’s Confidential Information as follows: (a) keep it confidential for the duration of this Agreement and for 3 years after date of termination of this Agreement; (b) use it solely for the purpose of performing its obligations or exercising its rights under this Agreement; (c) not disclose it to any person save to its own directors, officers, employees, sub-contractors, or professional advisors (or those of its Vodacom Group Companies or Customer Group Companies, as applicable) who need it to perform obligations, exercise rights, or conduct audits in connection with this Agreement, or as required by Applicable Law; (d) ensure that such persons keep it confidential; and (e) return or destroy it on termination of this Agreement save when necessary to keep it for regulatory reasons in secure archives. A Party is not liable for breach of this clause 9 due to a breach of Applicable Privacy Law.
10. Data Protection - When Service Schedules Identify Vodacom is Responsible Party or Data Controller
    • The Customer agrees and provides its consent in order that Vodacom may Process User Personal Information or Personal Data for the following general purposes: (a) account relationship management; (b) sending bills; (c) order fulfilment / delivery; and (d) customer service (e) provision of products and services.
    • As an electronic communications services provider, Vodacom may Process Traffic Data for the following purposes: (a) delivering User communications; (b) calculating Charges for each User; (c) identifying and protecting against threats to the Network or Services; and (d) internal use for development and improvement of Network or Services.
    • Vodacom may disclose User Personal Data and Traffic Data: (a) to Vodacom and Vodafone Group Companies or suppliers and/or (b) if required by Applicable Law, court order, Information Regulator or Privacy Authority, or any Authority. 
    • Vodacom’s privacy notice containing details of how we process personal information can be found on vodacom.co.za
11. Data Protection – When Service Schedules Identify Vodacom as the Operator or Data Processor
    • Processing User Personal Data: Vodacom may only Process User Personal Data for: (a) provision and monitoring of the Service; or (b) any other purpose agreed between the Parties in writing. Additional instructions from Customer require prior written agreement and may be subject to Charges.
    • De-identified Data: Vodacom may use User Personal Data to create statistical data and information about service usage and devices that does not identify a User.
    • Sub-Operator: Vodacom may engage Sub-Operators. An indicative list of Current Sub-Operators or Sub- Processors are listed at https://www.vodacombusiness.co.za/business/solutions/vodacom-business-sub-processors all update its list of Sub- Operator from time to time.
    • Sub-Operator Obligations: Vodacom enters into binding agreements with its Sub-Operator that imposes upon the Sub-Operator substantially the same legal obligations for Processing activities as these terms. If a Sub-Operator fails to fulfil its data protection obligations under the agreement, Vodacom remains liable to Customer for the performance of that Sub-Operator’s obligations.
    • Data Retention: Vodacom may retain the User Personal Data for as long is permitted by law or as required to deliver the Service and will (at Customer’s option) return User Personal Data in its possession upon termination of the Agreement, or delete such User Personal Data within a reasonable time after the termination of the Agreement, unless Applicable Law requires Vodacom to retain it.
    • Data Access: Vodacom limits access to User Personal Data to those persons necessary to meet Vodacom's obligations in relation to the Service and takes reasonable steps to ensure that they: (a) are under a statutory or contractual obligation of confidentiality; (b) are trained in Vodacom’s policies relating to handling User Personal Data; and (c) do not process User Personal Data except as instructed by Customer unless required to do so by Applicable Law.
    • Security: As required by Applicable Privacy Law, Vodacom shall: (a) provide appropriate technical and organisational measures for a level of security appropriate to the risks that are presented by Processing; (b) comply with the security requirements contained in the Vodacom information security policies based on ISO/IEC 27001:2013; (c) provide Customer with such information, assistance and co-operation as Customer may reasonably require to establish compliance with the security measures contained in Applicable Privacy Law; (d) notify Customer without undue delay of any unauthorised access to User Personal Data that Vodacom becomes aware of and that results in loss, unauthorised disclosure, or alteration to the User Personal Data; (e) provide reasonable assistance to Customer in relation to any personal data breach notification that Customer is required to make under Applicable Privacy Law; and (f) provide Customer reasonable assistance, prior to any Processing: (A) with carrying out a privacy impact assessment of the Services; and (B) with a consultation of the relevant Privacy Authority regarding Processing activities related to the Services. Further information on data security measures is found at vodafone.com/business/customer-security.
    • Audit: Where Customer has a right of audit and inspection under Applicable Privacy Law, Customer agrees to exercise its right as follows:
      • No more than once each calendar year and at a reasonable time, Customer may request to review Vodacom’s security organisation and the good practice and industry standards contained in Vodacom’s information security policies. Any audit may only relate to data protection compliance of the Services and the provision of documentary evidence of compliance. If the Transfer Contract Clauses apply, nothing in this clause amends or varies those standard clauses nor affects any data subject or Privacy Authority’s rights under those clauses.
    • In connection with an audit, Vodacom shall inform Customer if, in its reasonable opinion, any Customer instruction infringes Applicable Privacy Law; however, this requirement does not affect Customer’s responsibility for ensuring its instructions comply with Applicable Privacy Law.
    • Customer is responsible for reviewing the information Vodacom makes available and making an independent determination if the Services meet Customer’s requirements and legal obligations.
    • Transfer of User Personal Data out of South Africa: Vodacom may Process or transfer User Personal Data in countries outside South Africa provided that : the third party who is the recipient of the information is subject to a law, binding corporate rules or binding agreement which provide an adequate level of protection that (i) effectively upholds principles for reasonable processing of the information that are substantially similar to the conditions for lawful processing of personal information relating to a data subject as detailed in PoPiA or any relevant local law (ii) includes provisions, that are substantially similar to this section, relating to the further transfer of personal information from the recipient to third parties who are in a foreign country; (b) the Customer consents to the transfer; (c) the transfer is necessary for the performance of a contract between the Customer and the responsible party, or for the implementation of pre-contractual measures taken in response to the data subject's request; (d) the transfer is necessary for the conclusion of performance of a contract concluded in the interest of the Customer between the responsible party and a third party; or (e) the transfer is for the benefit of the Customer, and (i) it is not reasonably practicable to obtain the consent of the Customer to that transfer, and (ii) if it were reasonably practicable to obtain such consent, the Customer would be likely to give it.        
    • Law Enforcement: Vodacom: (a) may receive legally binding demands from a law enforcement Authority for the disclosure of, or other assistance in respect of, User Personal Data, or be required by Applicable Law to disclose User Personal Data to persons other than Customer (a “Demand”); (b) is not in breach of any obligation to Customer in complying with a Demand to the extent legally bound; and (c) will notify Customer as soon as reasonably possible of a Demand unless otherwise prohibited.
    • User Enquiries: When Customer is required under Applicable Privacy Law to respond to enquiries or communications (including subject access requests) from Users, and taking into account the nature of the Processing, Vodacom will: (a) pass on to Customer without undue delay any such enquiries or communications received from Users relating to their User Personal Data or its Processing; and  (b) have reasonable  technical and organisational measures to assist Customer in fulfilment of those obligations under Applicable Privacy Law.
12. Local Data Protection Terms: The Parties agree to the local data protection terms for the relevant countries found at Vodacom.com/business/vge-customer-terms.
13. Liability
    • Exclusions: Neither Party is liable to the other Party (whether in contract, tort (including negligence), breach of statutory duty, indemnity, or otherwise) for: (a) any loss (whether direct or indirect) of profit, revenue, anticipated savings, or goodwill; (b) any loss to or corruption of data; (c) any fines prescribed by any Authorities; (d) any loss arising from business interruption or reputational damage; or (e) any indirect or consequential loss, regardless of whether any of these types of loss were contemplated by either of the Parties at the time of contracting for the relevant Services. Notwithstanding the above exclusions, neither Party excludes or limits any liability: (i) that cannot be excluded or limited by Applicable Law; or (ii) for fines related to breach of any Applicable Law.
    • Liability Cap: A Party’s maximum aggregate liability under or in connection with the Services (whether in contract, tort (including negligence), breach of statutory duty, indemnity, or otherwise) is limited in each consecutive 12-month period starting on the date of last signature of the relevant This Agreement (“Liability Period”) to the amount of the Charges paid or payable by the Customer to Vodacom in respect of that Liability Period for those Services. If the Charges have been paid or payable for less than 12 months in any Liability Period, a Party's liability will not exceed the average monthly Charge paid or payable for that Liability Period multiplied by 12.
    • Neither Parties’ liability will be limited in respect of damages resulting from a breach of clause 9 (Confidentiality) or non-payment of Charges and breach of any Applicable Law.
14. Equipment Terms
    • Vodacom Equipment: When Vodacom provides Vodacom owned Equipment (“Vodacom Equipment”) for Customer’s use.
      • Title to the Vodacom Equipment at all times remains with Vodacom, its suppliers, or subcontractors. Customer may not resell, distribute, provide, or sub-licence the Vodacom Equipment to any third party.
      • Customer agrees to: (a) use the Vodacom Equipment only for the purpose of using the Services in accordance with Applicable Law and Vodacom's instructions; (b) use it only with compatible Equipment that is in good working order; (c) allow only Vodacom representatives to add to, modify, or alter it; (d) notify Vodacom immediately and be responsible for loss or damage to it, save for reasonable wear and tear or loss or damage caused by Vodacom or its representatives; (e) connect the Vodacom Equipment to the Network only using a Vodacom approved network termination point; and (f) return the Vodacom Equipment to Vodacom upon termination of the Service or upon its replacement by Vodacom.
    • Customer Equipment: When Customer uses Customer Equipment with the Service.
      • Customer must: (a) use Customer Equipment meeting Vodacom specifications; (b) install and configure the Customer Equipment at the agreed location(s) no later than the agreed delivery date or as otherwise agreed; (c) support and maintain the Customer Equipment according to OEM recommendations, including prompt installation of security patches and updates; (d) be responsible for the configuration and compatibility of Customer Equipment with the Service; (e) promptly replace or correct any Customer Equipment that Vodacom determines is incompatible with the Service or is likely to interfere with the Service or Network, and reimburse Vodacom for any additional costs Vodacom incurs as a result; (f) after the Service terminates, give Vodacom prompt access to and reasonable help with disconnecting Customer Equipment from the Service; and (g) record and dispose of Customer Equipment in accordance with Applicable Law. Customer acknowledges that failure to comply with this clause may prevent its ability to use the Service and excuses Vodacom from liability for delays and failure to deliver the Service.

• Equipment: As part of rendering the Services, Vodacom may provide the Customer with complementary Equipment for the duration of the Agreement, if applicable. Upon termination of the Agreement, Vodacom will transfer all rights of ownership in and to the relevant Equipment (excluding the SIM) to the Customer. Risk in the Equipment passes to Customer upon delivery. Vodacom will deliver Equipment to the agreed delivery address. If Equipment is damaged on delivery, Customer must notify Vodacom within 5 Working Days of delivery and provide written details.  Notwithstanding the passing of Risk, Vodacom retains all right, title and ownership of the Equipment until termination of the Agreement.
• Import: If Vodacom delivers Equipment to Customer from outside the country of delivery: (a) the Equipment is shipped to Customer DAP (Incoterms 2010); and (b) Customer is the importer of record and must clear the Equipment through the customs authority in the country of delivery and pay any import duties, copyright levies and all other related charges.
• Equipment Return: If Customer wishes to return Equipment after delivery it must follow the OEM’s return process and pay return shipping charges. Vodacom does not accept any Equipment returns.
• Warranties: Vodacom will pass on the benefit of any warranties on Equipment that Vodacom obtains from the OEM; however, Vodacom does not assign any of its rights or appoint Customer to act on Vodacom’s behalf. If the Equipment fails to meet OEM specifications for reasons unconnected with Customer’s or any User’s acts, omissions, or misuse (including failure to follow the OEM’s guidelines) within the Equipment warranty period, Customer may notify the OEM. As stated in the relevant OEM’s warranty, the OEM may either repair or replace the faulty Equipment at its discretion. This clause states Customer’s only remedy for faulty Equipment.

15. Suspension of Services
    • Vodacom may suspend the Services: (a) upon receipt of a legally binding demand from an Authority and otherwise in order to comply with Applicable Law; and (b) during maintenance, modification, repair, and testing of the Network when necessary to safeguard the functionality, security, and integrity of the Network. Vodacom uses reasonable endeavors to notify Customer in advance of these suspensions but may not be able to do so in emergency situations.
    • Vodacom may suspend the Services: (a) upon notice when Customer materially breaches this Agreement and there is no remedy available; and (b) on 30 days’ written notice, when Customer fails to pay undisputed Charges when due or fails to remedy any other material breach.
    • Vodacom uses reasonable efforts to minimise the impact of any suspensions on Customer and Users by only suspending individual Services for the reasons listed above, not all of the Services, as reasonably practical.
16. Term and Termination
    • Termination upon Notice: Either Party may terminate this Agreement on at least 30 days' written notice to the other and subject to the Customer making payment of the applicable Recovery Charge as the case may be.
    • Termination for Cause: Either Party may terminate this Agreement with immediate effect by written notice if the other Party: (a) materially breaches this Agreement and there is no remedy available; (b) materially breaches this Agreement in a manner that may be remedied but fails to remedy the breach within 30 days of receipt of written notice of default from the other Party; or (c) commits an act of insolvency as set out in Section 8 of the Insolvency Act 24 of 1936.
    • Termination of Services: Either Party may terminate a Service (in whole or in part) or individual subscription for Service for the causes as set out in clause 3 (Termination for Cause) and 18.5 (Force Majeure).
    • Effect of termination: On termination of this Agreement or an individual Service, Customer and its Users must: (a) immediately stop using the relevant Services; and (b) return or make available for collection, any equipment, documents, and information owned by Vodacom in accordance with Vodacom's reasonable instructions; (c) pay any applicable Recovery Charge; and (d) any provision of this Agreement and / or the General Terms that expressly or by implication is intended to be in force after termination of this Agreement will continue to be of force and effect notwithstanding termination. The Recovery Charge will be provided after receipt of notice of termination and will be calculated as the number of months remaining of the Minimum Subscription Terms multiplied by the monthly charges or other applicable reasonable cancellation charge determined by Vodacom.
17. Changing the Terms
    • Change Orders and Amendments: Either Party may propose a change to the Service or This Agreement by written request. If the change is agreed, the Parties must authorise it in the form of a change order or other written amendment to this Agreement. Vodacom has no obligation to commence work in connection with a change until a change order or amendment is executed by the Parties. Except as provided in clause 1 (Permitted Changes), any amendment to this Agreement must be in writing and signed by the Parties as required in clause 18.10 (Signatures) below.
    • Permitted Changes: Vodacom may: (a) vary this Agreement (including withdrawing Services) as required to comply with Applicable Law; (b) retire and replace the Services (or any part of them) as long as Vodacom provides Customer with replacement services that provide comparable or improved functionality; (c) provide substitute Equipment if Vodacom is unable to provide the Equipment requested; (d) make changes to the Service, Charges, and Network, if required due to a change in Vodacom's or a Third Party Provider’s operations or in instances where such changes are necessary to safeguard the security and or stability of the Network or (e) vary the Service or Service Schedules from time to time. Vodacom will provide Customer at least 30 days’ written notice of any change that is materially detrimental to Customer, unless under (a) or (d) above it is impractical to do so. In that case, Customer may terminate the affected part of this Agreement on 30 days’ written notice to Vodacom if the change cannot be offset by Vodacom to Customer's reasonable satisfaction. Customer’s right to terminate under this clause is its only remedy for any detriment suffered due to Vodacom’s exercise of this clause. The right to terminate will expire 30 days after the effective date of the change.  Save as aforesaid, Vodacom reserves the right to change any documents referenced herein (or any specific provisions therein) including those appearing on the Vodacom website as referenced in clause 1 without notice in which case the Customer hereby agree that the Customer will be bound to the then current version of such terms.
18. General Provisions
    • Applicable Law: Vodacom and Customer shall respectively comply with Applicable Law.
    • Assignment and Sub-contracting: Neither Party may assign, novate, or otherwise transfer any of its rights and obligations under this Agreement without the prior written consent of the other Party, that may not be unreasonably withheld or delayed. However, Vodacom may assign or novate any of its rights or obligations under this Agreement to a Vodacom Group Company without the consent of Customer. Vodacom may sub-contract any of its obligations under this Agreement but is responsible to Customer for the acts or omissions of its sub-contractors.
    • Survival of Clauses and Waiver: Any provision of this Agreement that expressly or by implication is intended to be in force after termination of this Agreement will continue in force. A waiver of any provision of this Agreement shall be effective only (i) if it is in writing, (ii) for the specific instance and purpose for which it was given, and (ii) will not operate as a waiver of any other provision. It is recorded that while the Parties may correspond via email or other electronic means during the course of their relationship, this Agreement(s) cannot be varied by email or any other electronic means except as contemplated in clause 17.
    • Notices: All notices relating to the General Terms, Service Schedules or this Agreement must be sent to the Parties’ respective addresses as set out in this Agreement by pre-paid recorded delivery. Notices solely relating to the General Terms must be sent to the Parties’ respective addresses as set out in the Customer Terms by pre-paid recorded delivery. Other notices regarding the Service may be provided via regular post, email, and web portal.
    • Force Majeure: If a Force Majeure event occurs, the affected Party is not liable to the other and is released from its affected obligations for the period of the Force Majeure event. Either Party may terminate this Agreement with immediate effect by written notice to the other Party if either Party experiences a Force Majeure event for a continuous period of 90 days.
    • Illegality: If any provision of this Agreement is found to be illegal or unenforceable, then the Parties shall meet and negotiate in good faith to remove or amend the relevant provision with a provision which is enforceable and is reasonably consistent with the intentions underlying the original provision within 14 days. Failing agreement on a substitute provision between the Parties,if such substitution is impossible, and if the remainder of this Agreement: (a) is not materially affected by removal of the offending provision and is capable of substantial performance, then the remainder of this Agreement will be enforced to the extent permitted by Applicable Law; or (b) is materially affected by removal of the offending provision and is not capable of substantial performance, then the affected This Agreements will be terminated, the Customer will make payment of the applicable Recovery Charge and outstanding Charges and neither Party will have any further liability to the other. Any substitution or removal of an offending provision under this clause shall be to the smallest degree necessary to create an enforceable provision and preserve the original intent of the Parties.
    • Third Party Rights: Each This Agreement is made only for the benefit of its Parties and is not enforceable by any other person under the Contracts (Rights of Third Parties) Act 1999 or other Applicable Law.
    • No partnership: Nothing in this Agreement and no action taken by the Parties under this Agreement shall create or be deemed to create a partnership or relationship of principal and agent or employer and employee between the Parties or to constitute a joint venture or relational contract between the Parties.
    • Governing Law, Jurisdiction and Arbitration: Any claim or dispute (whether contractual or non-contractual) arising out of or in relation to the subject matter, the interpretation, validity, and enforcement of each This Agreement is governed by and construed in accordance with the laws of South Africa, without regard to its choice of law provisions. The Parties undertake to use all good faith efforts to resolve a claim or dispute and will escalate it for resolution to the duly authorised senior management representatives of the Customer and Vodacom or a third party appointed by both Parties in writing to act as a mediator (and not an arbitrator) to mediate in the resolution. In the event such mediation does not resolve the claim or dispute. the claim or dispute may, at the discretion of the aggrieved party  be referred for resolution in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation. Each Party is not prevented from making an application to any court of competent jurisdiction to obtain an interim remedy (including any interdict) at law or in equity. The Parties irrevocably submit to the exclusive jurisdiction of the South Gauteng High Court of South Africa, Johannesburg.
    • Signatures: The Parties consent to the use of electronic signature as permitted by Applicable Law, excluding email. The Parties consent to the use of the DocuSign tool for electronic signatures.This Agreement(s) may be executed in counterparts, including those transmitted electronically in Portable Document Format (PDF), and all the counterparts together constitute one and the same instrument. Each counterpart of this Agreement(s) is treated as an original. The Parties waive any rights they may have to object to such treatment. The Parties record that it is not required for this Agreement to be valid and enforceable, that a Party initial the pages of this Agreement(s) and/or have its signature of this Agreement(s) verified by a witness.
    • Excused Performance: The Parties agree that Service Levels are calculated under the presumption that (i) the national power grid provides the required and continuous electricity supply necessary to operate the Network without interruption and (ii) back up power systems deployed by Vodacom such as batteries and generators are not stolen and vandalised. Due to the national power crisis underway and surge in criminal activity targeting Vodacom’s generators and battery systems (“Theft and Vandalism”), Vodacom may not be in a position to meet the agreed Service Levels.

Vodacom will be excused from the failure to perform an obligation under this Agreement or the failure to achieve a Service Level in circumstances where such failure is directly caused by power interruptions and Theft and Vandalism. The Customer will not be entitled to any Service Credits (or Service Level Penalties) under this Agreement or any applicable Service Level Agreement for any unavailability or non-performance of the Services caused by power interruptions, Theft and Vandalism. Vodacom will continue to use Commercially Reasonable Efforts to perform and to minimize the impact of such failure.

• Entire Agreement: Each This Agreement represents the entire agreement between the Parties relating to its subject matter and supersedes any previous agreements between the Parties relating to the same. The Parties acknowledge that, in entering into this Agreement, neither Party has relied upon any statement, promise or warranty made, or agreed to, by any person, except those expressly provided for by this Agreement.

19. Definitions
    • Applicable Law means law, regulation, binding code of practice, rule, order, or requirement of any relevant government or governmental agency, professional or regulatory Authority, each as relevant to: (a) Vodacom in the provision of the Service; and (b) Customer in the receipt of the Service or the carrying out of its business.
    • Applicable Privacy Law means Applicable Law applicable to the Processing of Personal Data under this Agreement, including but not limited to PoPiA.
    • AUP means Vodacom’s Acceptable Use Policy available at Vodacom.com/business/AcceptableUsePolicy.
    • Authority means those governments, agencies, professional, and regulatory authorities that supervise, regulate, investigate, or enforce Applicable Law.
    • Charges means the charges or fees set out in this Agreement, the Order, or Price Lists.
    • Commercially Reasonable Efforts shall mean taking such steps and performing in such a manner as a well-managed business would undertake where such business was acting in a determined, prudent and reasonable manner to achieve the particular result, provided always that such steps are within the reasonable control of the Party required to exert such efforts.
    • Confidential Information means confidential information in any form: (a) concerning the business and affairs of a Party or its Group Company that a Party obtains or receives from the other Party; or (b) that arises out of the performance of any Services. Confidential Information does not include information that: (i) is or becomes public knowledge without breach of this Agreement; (ii) was already in a Party's possession free of obligations of confidentiality; or (iii) is received from a third party free of obligations of confidentiality.
    • Customer means the Party receiving Service under this Agreement.
    • This Agreement means an agreement for purchase of Services signed by both Parties.
    • Customer Equipment means Equipment not owned by Vodacom that is used with the Service. Equipment sold by Vodacom to Customer is Customer Equipment.
    • Customer Group means Customer and any company that controls, is controlled by, or is under common control with Customer. For this purpose, control means having the beneficial ownership of more than 50% of the issued share capital, or the legal power to direct the general management of the company in question, at or after the date of this Agreement (and Customer Group Company(ies) or CGC has a corresponding meaning).
    • Data Controller means the person that determines the purposes and means of Processing the data.
    • Data Processor means the person that Processes data on behalf of the Data Controller.
    • Equipment means the hardware and related software Customer must have to use the Service, including SIMs if relevant.
    • Force Majeure means any circumstances, events, omissions, or accidents beyond the reasonable control of a Party and which events, omissions, or accidents will be limited to: fires, explosions, war (whether declared or not), invasion, foreign enemies, hostilities, civil insurrection, flood, earthquake, lightning, act of local or national Government, Martial Law and interruption of essential services from public utilities (including electricity, water and sewerage).
    • Intellectual Property Rights or IPR means: (a) rights in 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 includes the benefit of all registrations, 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) and wherever in the world enforceable; (b) rights in the nature of unfair competition rights and rights to sue for passing off; and (c) trade secrets, confidentiality, know how and other proprietary rights.
    • Minimum Subscription Term means a period of 24 or 36 months (or other term agreed in writing between the parties) from the date of activation or upgrade of the SIM on the Network of each subscription for services;
    • Network means the communications network and the equipment and premises that are connected to the network that are operated by Vodacom and Vodacom Group Companies.
    • NRA means the national regulatory Authority for electronic communications or telecommunications services in the relevant country.
    • OEM means a third party Equipment manufacturer or service provider.
    • Operator or Processor means the person that Processes data on behalf of the Responsible Party.
    • Order, if relevant, is defined in the relevant This Agreement.
    • Other Taxes means: (a) all taxes, duties, levies, surcharges, or any similar charges that may apply to the supply, use, receipt, or consumption of the Services; (b) customs duties and excise taxes; and (c) regulatory charges, administrative charges, surcharges, or any similar charges that Vodacom may pass on to customers. Other Taxes does not include VAT.
    • Party or Parties means the parties to this Agreement.
    • PoPiA means the Protection of Personal Information Act No 4 of 2013.
    • Price List(s) means Vodacom’s standard pricing in South Africa or the relevant territory at the applicable time.
    • Privacy Authority means the Authority that enforces the Applicable Privacy Law in the relevant jurisdiction.
    • Process/Processed/Processing means obtaining, recording, or holding information or data or carrying out any operation or set of operations on it.
    • Recovery Charge means any Charge payable by Customer for termination of a subscription prior to the expiry of the Minimum Subscription Term or failure to meet commercial commitment.
    • Renewal Term is set out in this Agreement or Order.
    • Responsible Party or Controller means the person that determines the purposes and means of Processing the data.
    • Sanctions and Trade Law means Applicable Law relating to trade control and economic sanctions such as those of the United Kingdom, European Union, United States of America and other relevant countries.
    • Service(s) means the services and Equipment provided by Vodacom under this Agreement and as more fully described in the relevant Service Schedule.
    • Service Element means the individual components of the Service including optional services, if applicable, and Equipment.
    • Service Schedules means the document named Service Schedules or Service Schedule that describes the Services to be delivered by Vodacom under this Agreement.
    • SIM means a “subscriber identity module” card or a embedded chip that is an integrated circuit storing user specific data.
    • Sub-Operator means a sub-contractor that carries out Processing activities in the provision of the Services or fulfils certain obligations of Vodacom under this Agreement.
    • Third Party Provider means a third party contracted by either Vodacom or Customer that provides a Service Element or that provides service that connects to the Service. Third Party Providers may include members of the Vodacom Group.
    • Traffic Data means any data Processed for the purpose of the conveyance of a communication on an electronic communications network and for billing.
    • User means an end user of the Services who must be a permanent or temporary employee or sub-contractor of Customer.
    • User Personal Data means any information that relates to an identified or identifiable User.
    • VAT means value added tax or any analogous tax in any relevant jurisdiction including but not limited to use, sales, and local sales taxes of any kind.
    • Vodacom Equipment means Equipment owned by Vodacom and provided to Customer for use with the Services.
    • Vodacom Group means: shall mean any company which is a subsidiary of Vodacom, a holding company of Vodacom, or a subsidiary of any holding company of Vodacom (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));
    • Working Days is defined in the relevant Service Schedules.

ENTERPRISE CUSTOMER – MOBILE SERVICE SCHEDULE

• GENERAL
  • Service Summary: Vodacom Voice and Data Service (the “Service”) enables handsets and other devices to connect via the mobile Network for: (a) voice calls; (b) SMS; (c) MMS; and (d) data, all for domestic, international, and roaming use. The Network operating standards available are GSM, GPRS, 3G, and 4G (where available). The term “Service” includes each Service Element.
  • Service Terms: The Service Terms contained in this Service Schedule will apply to mobile services rendered by Vodacom to the Customer.
  • Structure and Precedence: Notwithstanding any terms in any framework agreement between the Parties, these Service Terms apply to the Service and include or are governed by the following documents and if there are any conflicting terms in these Service Terms, the following order of precedence applies (highest level of precedence first): (a) each Order; (b) this Agreement; (c) Extra Service Terms, if applicable to the specific Service Element; (d) the Service Terms; and (c) the General Service Terms.
• CONDITIONS OF USE
  • Telephone Numbers: Vodacom may: (a) allocate telephone numbers to Customer; (b) reallocate or change telephone numbers as a result of changes in Applicable Law or instructions from the NRA, using all reasonable efforts to minimize disruption to Customer; and (c) withdraw telephone numbers if Customer or User fails to comply with this Agreement.
  • Telecommunications Systems: Due to the constraints of radio and electronic communications, Vodacom cannot guarantee: (a) complete, fault free, or uninterrupted access to the Services; (b) compatibility with all handsets and devices; (c) that communications will be completely secure; (d) that roaming networks will be compatible or provide comparable performance or functionality to Vodacom’s Network; (e) that emergency services providers will be able to identify the User’s location automatically if a User makes a call for emergency services that is routed over Wi-Fi; or (f) that a Customer may roam while using Wi-Fi calling.
  • Misuse: Customer may not use the Services: (a) to make a computer permanently available as a server; (b) to set up connections where the caller receives payments from third parties, based on the call or the duration of the connection (e.g. connections to advertising hotlines); (c) for commercial relaying of connections or interconnection services; (d) for automated machine-to-machine data exchange; (e) to use automated means to make calls, texts or send data; and (f) in a manner as to redirect and /or bypass call termination charges.
  • Site Survey: Vodacom may require a Site Survey prior to delivery of a Service Element (e.g., for improving inbuilding cover). Customer will permit Vodacom or its subcontractors to conduct Site Surveys as necessary and Customer will complete the required preparatory work as detailed in the Site Survey report.
  • Customer Sites - Customer Obligations: For the purposes of preparing for and delivery of any Service Element requiring Vodacom access to a Customer Site, Customer agrees to: (a) have in place (or assist Vodacom to do so at Customer's cost) all third party consents necessary to allow Vodacom or its subcontractors to: (i) access Customer Sites, Equipment, and third party property; and (ii) install, configure or maintain Equipment on Customer Sites or third party property; (b) provide secure storage for Equipment sent to Customer Sites; (c) prepare Customer Sites in accordance with Vodacom’s instructions; (d) ensure that Customer Sites are safe and represent a suitable working environment; and (e) when possible, give Vodacom 10 Working Days’ notice of any event (such as power disconnection) that will disrupt the Service or affect the Equipment.
  • Customer Sites - Vodacom Obligations: Vodacom will: (a) comply with any reasonable Customer Site access and security procedures disclosed to Vodacom in advance; and (b) deliver installation and maintenance work: (i) during Working Hours, when the work does not involve any suspension of the Service; or (ii) subject to additional charge notified to Customer in advance, outside of Working Hours if requested by Customer or if Vodacom is unable to deliver the works during Working Hours for reasons outside of Vodacom's control. 
• EQUIPMENT
  • Equipment Terms: Customer must have Equipment that meets Vodacom’s specifications to use the Service. Customer may purchase Equipment from Vodacom or from its own suppliers. The Equipment Terms apply to Vodacom Equipment and Customer Equipment.
  • SIMs: Vodacom will provide SIMs for Customer’s use. SIMs are Vodacom Equipment. Vodacom licences Customer and Users to use SIMs (including any embedded software) for the purposes of the Services. Customer must inform Vodacom as soon as reasonably practicable after Customer or User becomes aware that a SIM is lost, stolen or the subject of unauthorised use. Customer remains responsible for all usage Charges prior to such notification and for the subsequent replacement SIM cost.
  • The SIMs shall be delivered to the Customer unconnected to the Network and will be connected (activated) at the request of the Customer subject to compliance with RICA requirements. The Customer acknowledges that in terms of RICA, Vodacom is required to verify and record all the information relating to the Customer and the Customer is obliged to record and store in terms of RICA all the information relating to the Users and the Customer will comply with these RICA requirements. The Customer will ensure that the User and/or any other person who was in possession, or had control of the SIM-card when it was so lost, stolen or destroyed, in terms of RICA, reports the loss, destruction or theft to a police official at any police station within a reasonable time after having reasonably become aware of the loss, theft or destruction and obtain written proof in the prescribed form, that the report has been made with the official reference number of the report.
• DATA PROTECTION 
  • Vodacom is the Data Controller for this Service. Vodacom’s Data Protection Terms when Vodacom is Data Controller apply, including local terms, as applicable.
• DELIVERY SERVICES 
  • Service Migration 
    • Incumbent Supplier: Customer shall: (a) fulfil the terms of the contract(s) with its incumbent supplier(s) for similar services (which may include payment of termination fees); and (b) fulfil Vodacom’s reasonable requests to enable it to set up the Services, including notifying the incumbent supplier(s) as necessary.  
    • Number Porting: Vodacom will provide a facility for transferring or porting telephone numbers in accordance with Applicable Law and standard industry practice. If Customer requests Vodacom to transfer numbers to Vodacom, Vodacom will provide Customer with porting authority letters that Customer must complete and send.
  • Price Plan Migration
    • Customer may, during Minimum Subscription Term, request a Tariff Migration to a price plan with the same Minimum Subscription Term subject to the payment of the quoted migration charges. The price plan to which the Customer migrates will apply for the remainder of the Minimum Subscription Term.
  • DEFINITIONS 
    • Applicable Law means law, regulation, binding code of practice, rule, order, or requirement of any relevant government or governmental agency, professional or regulatory Authority, each as relevant to (a) Vodacom in the provision of the Service and/or (b) Customer in receipt of the Service or carrying out of its business.
    • Authority means those governments, agencies, courts, professional and regulatory authorities that supervise, regulate, investigate, or enforce Applicable Law.
    • Charges means the charges or fees set out in this Agreement or Price Lists, and are exclusive of VAT unless specified otherwise. Customer shall pay the Charges, VAT, and Other Taxes.
    • Customer means the Party receiving Service under this Agreement.
    • This Agreement means an agreement for purchase of Services signed by both Parties.
    • Customer Equipment means Equipment not owned by Vodacom that is used with the Service. Equipment sold by Vodacom to Customer is Customer Equipment.
    • Customer Group means Customer and any company that controls, is controlled by, or is under common control with Customer. For this purpose, control means having the beneficial ownership of more than 50% of the issued share capital, or the legal power to direct the general management of the company in question, at or after the date of this Agreement (and Customer Group Company(ies) or CGC has a corresponding meaning).
    • Customer Site(s) means the Customer’s premises that Vodacom must access to provide the Service or the location where the Service is to be provided.
    • Data Protection Terms means the terms regarding data protection in the General Terms.
    • Equipment means the hardware and related software Customer must have to use the Service, including mobile devices/handsets and SIMs.
    • Equipment Terms means the terms regarding Equipment in the General Terms.
    • Extra Service Terms means the additional terms that apply to certain Service Elements ordered by Customer on this Agreement.
    • General Terms means the General Terms or master agreement identified in this Agreement.
    • Network means the communications network and the equipment and premises that are connected to the network that are used by Vodacom and Vodacom Group Companies.
    • NRA means the national regulatory Authority for electronic communications or telecommunications services in the relevant country.
    • Party or Parties means the parties to this Agreement.
    • Price List means Vodacom’s standard pricing in the relevant territory at the applicable time and as published from time to time.
    • RICA means the 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.
    • Service Element means the individual components of the Service including optional services if applicable.
    • SIM means a “subscriber identity module” card that is an integrated circuit storing user specific data.
    • Site Survey means a survey of a Customer Site to assess whether (in Vodacom’s opinion) the existing infrastructure is sufficient to provide the Service at that Customer Site.
    • Tariff Migration means transferring and/or moving from a higher price plan of the Pirce List to a lower price plan in the Price List or vice versa.
    • User means an end user of the Services who must be a permanent or temporary employee or sub-contractor of Customer.
    • Vodacom means the member of the Vodacom Group that is a Party to this Agreement.
    • Vodacom Equipment means Equipment supplied by Vodacom for Customer’s use, including SIMs.
    • Vodacom Group means: (a) Vodacom Group, Vodacom, and any company that Vodacom Group Plc owns (directly or indirectly) 15% or more of the issued share capital; and (c) any partner listed on the "Where we are" page in the “Who We Are” section at Vodacom.com (and Vodacom Group Company(ies)/Vodacom Group Companies).
    • Working Day means on Monday to Friday inclusive, but excluding public holidays in the country where the Service are being delivered from.
    • Working Hours means the hours between 0900 and 1700 SAT on a Working Day.