THIS MASTER SERVICES AGREEMENT IS MADE BETWEEN:
________________________ (Registration number ____________________) company incorporated in South Africa having its registered office at ______________________ (the “Customer”)
Vodacom (Pty) Ltd, a company incorporated in South Africa (Registration number. 1993/003367/07) having its registered office at Corporate Park Building, 082 Vodacom Boulevard, Vodavalley, Midrand (“Vodacom”).
SCOPE OF AGREEMENT
(A) Vodacom and the Customer have entered into this Agreement in order to enable the Customer to order mobile voice and data Services and Equipment from Vodacom in accordance with the terms and conditions set out in this Agreement.
(B) The Customer has appointed Vodacom to supply order mobile voice and data Services and Equipment to the Customer on the terms and conditions set out below.
NOW IT IS HEREBY AGREED as follows:
1.1. The following expressions shall (unless the context otherwise requires) have the following meanings:
Acceptance means Vodacom’s acceptance of a Purchase Order as set out in clause 3.2.1; and “Accept” and “Accepted’ shall have the corresponding meaning;
Access Charge means the regular charge for the use of a Service or Equipment as specified in the Commercial Terms, or, if not set out in the Commercial Terms as set out in the Standard Price Plan;
Agreement means this Master services agreement and all Annexes;
Affiliate means any company which is a subsidiary of either Party, a holding company of either Party, or a subsidiary of any holding company of either Party (where the terms “subsidiary” and “holding company” shall have the meaning ascribed to them in section 1 of the Companies Act, 2008 (Act No. 71 of 2008)),
Applicable Privacy Law
Applicable Law means the law of any applicable data protection or data privacy laws applicable in South Africa.
means law, regulation, binding code of practice, rule or requirement of any relevant government or governmental agency, professional or regulatory authority, each as relevant to (i) Vodacom in the provision/receipt of the Services and/or (ii) Customer/Supplier in the receipt/provision of the Services or the carrying out of its business.
Artificially Inflated Traffic means a flow of calls for any particular Service which Vodacom believes is: (i) disproportionate to the flow or volume of calls which Vodacom expects from good faith commercial practice and usage of the Network; or (ii) disproportionate to Customer’s previous call profiles (in any given month) with Vodacom; or (iii) uses automated means to make calls using the Network (save where this is expressly approved by Vodacom in writing);
Authorised User means any director, officer, employee or sub-contractor of the Customer that receives a username and password in order to gain access to one or more of the Services;
Annexes means an annex attached to this Agreement;
Associated Company means any corporate body in which the Customer has a Controlling Interest;
Business Day means any day which is not a Saturday, a Sunday or a public holiday in South Africa;
Call Charges means charges for a unit of airtime or data volume as set out in the Commercial Terms or if they are not set out in the Commercial Terms, as set out in the Standard Price Plan;
Change means addition to, variation, consensual cancellation or notation of, any amendment to this Agreement excluding those made under Clauses 22.2 and 22.3;
Charges mean the Call Charges, Equipment Charges, Access Charges and any other charges or fees agreed under the Agreement;
“Clause” or “clause” means a clause in the main body of this Agreement;
Commercial Terms means the commercial terms applicable to this Agreement as set out in Annex 2;
Confidential Information means any commercial, financial, technical, legal, marketing or other data, know-how, trade secrets or any other information of whatever nature relating to a Party or any of its Affiliates or their respective businesses which has been disclosed (whether in writing, orally or by another means and whether directly or indirectly) by or on behalf of that Party to the other Party whether before or after the date of the Agreement or issuance of an Agreement (as applicable);
Connection Date means the date the SIM is connected to the Network as set out in the Transaction Schedule;
Content means digitally stored and transmitted material, including text, pictures, images, audio, video, games, graphics, software or services incorporating any of these things;
Controlling Interest means 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;
Controller means the Party that is defined by Applicable Privacy Law as being legally responsible for ensuring that Personal Data and/or Traffic Data are processed in accordance with the obligations of that Applicable Privacy Law;
Customer Data all data either provided by the Customer or generated through the provision of the Service as well as all information relating to the Customer in terms of its categorisation within a group or type based on various demographic, psychographic and/or geographic characteristic;
Data means Personal Data and Traffic Data;
Equipment means the equipment supplied by Vodacom to the Customer under this Agreement;
Equipment Software means any software which is (i) embedded in and provided by Vodacom at the same time as an item of Equipment or (ii) provided by Vodacom and downloaded to any item of equipment, both as updated from time to time;
Equipment Charges means the charges for the Equipment that are set out in the Commercial Terms or, if they are not set out in the Commercial Terms, as set out in the Standard Price Plan;
Enterprise Bundle Services
Means a flat rate plan where Call Charges are based on a flat rate tariff that includes bearers that are selected by the Customer as more fully described in the applicable Service Schedule;
Force Majeure means any cause preventing a party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the control of the party including without limitation of the generality of the aforegoing, strikes, lock outs, accidents, illness, fires, explosions, theft, war (whether declared or not), invasion, foreign enemies, hostilities rights, civil insurrection, flood, earthquake, lightning, act of local or national Government, Martial Law or any other cause beyond the reasonable control of the party effected.
Information means the personal data associated with any Subscription;
Initial Term shall mean the initial term of this Master Services Agreement as provided in the Commercial Terms;
Intellectual Property Rights means:
rights in, and in relation to, any patents, registered designs, design rights, trademarks, trade and business names (including all goodwill associated with any trademarks or trade and business names), copyright, moral rights, databases, domain names, topography rights and utility models, and including the benefit of all registrations of, applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable;
rights in the nature of unfair competition rights and to sue for passing off; and
trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information;
Licence means the electronic communications network services and/or the electronic communications services licence granted by the National Regulatory Authority in terms of Electronic Communications Act, No. 36 of 2005, to Vodacom to operate the Network or any replacement or variation thereof;
Minimum Spend Commitment means the minimum sum of money that the Customer commits to pay in Charges over the Initial Term as set out in the Commercial Terms;
Minimum Subscription Term means a period of 24 (twenty four) months being the minimum period of connection to the Network and/or Services for a SIM under a Subscription;
Minimum Service Schedule Period means the minimum, term or duration of a Service provided in terms of this Agreement as specified in the Commercial Terms and/or in a Service Schedule or if not so specified, shall be the Initial Term;
Network means the mobile communications network of Vodacom.
Network Services means the services which enable the Customer to connect to the Network and use and access the services and facilities provided by, on or over the Network whether using GSM, GPRS or 3G (which are network operating standards);
National Regulatory Authority ’ means the national regulatory authority for electronic communications or telecommunications services in South Africa being, for the time being, the Independent Communications Authority of South Africa vested with the power and authority in terms of the Independent Communications Authority Act of South Africa, No. 13 of 2000;
Numbers Means Subscriber Number or MSISDN number, the Mobile Station Integrated Services Digital Network number used or to be used by the Customer or its authorised User for the purpose of obtaining the Network Services;
Personal Data means any information that relates to an identified or identifiable individual;
Purchase Order means the purchase order agreed by Vodacom and the Customer to be used for ordering the Services or Equipment;
Party or Parties means Vodacom and the Customer (each individually a “party” or “Party” and together the “Parties” or “parties”);
"Processing" or "Processed" in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including—
(i) organisation, adaptation or alteration of the information or data,
(ii) retrieval, consultation or use of the information or data,
(iii) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(iv) alignment, combination, blocking, erasure or destruction of the information or data;
Processor means the Party that is defined by Applicable Privacy Law as carrying out Processing for a Controller;
Representative means any director, officer, employee or sub-contractor of the Customer or Vodacom;
RICA 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;
Services means the Network Services and any other local services which Vodacom provides to the Customer under this Agreement as specified in Annex 1. Any additional terms and condition applicable to such Services will be set out in the applicable Service Schedule as the case may be;
Service Schedule means a schedule to this Agreement specifying the Service Specific Terms and conditions relating to a particular Service or Equipment;
Service Specific Terms Means the terms and conditions set out in each Service Schedule which apply to the provision of a specific Service;
SIM means a subscriber identity module which is an electronic memory device for storing user specific data to allow controlled and secure use of the Equipment on the Network;
Site Survey means a survey of a Customer site to assess whether (in Vodacom’s opinion) the existing infrastructure is sufficient for the deployment of the fixed line services at that site;
Software means any software included in any Equipment or Services provided to the Customer or Users;
Standard Price Plan means Vodacom’s standard schedule of charges as may be published from time to time;
Start Date Shall mean the commencement date of this Agreement as specified in the Commercial Terms;
Subscription means each SIM (connected to the Network);
Subsidy Recovery Charge Means any early termination charges payable by the Customer as specified in the Commercial Terms;
Territory means South Africa;
Third Party Equipment means Equipment manufactured by a third party;
Traffic Data means any data processed for the purpose of the conveyance of a communication on an electronic communications network and for the billing thereof;
Transaction Schedule means the schedule issued to the Customer on an on-going basis detailing each Subscription and Connection Date thereof which is allocated to and utilised by a User in terms of this agreement;
User means an individual end user of the Equipment and/or Services provided to the Customer who shall be a permanent or temporary employee or sub-contractor of the Customer;
Vodacom Vodacom (Pty) Ltd registration number 1993/003367/07 of 082 Vodacom Boulevard, Vodavalley, Midrand.
Vodacom Group 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));
1.2. Words indicating any gender shall include the other genders. Words indicating natural persons shall include legal entities (incorporated or unincorporated), and vice versa. Words indicating the singular shall include the plural and vice versa.
1.3. Where in any definition rights and/or obligations are conferred and/or imposed, same shall be regarded and effect given thereto as a substantive provision of this Agreement.
1.4. Where any definition is contained in any clause (or sub-clause) the meaning/s ascribed shall apply when used elsewhere in this Agreement, unless in the context a contrary intention is expressly indicated.
1.5. The terms, conditions, rights, warranties, promises, undertakings, covenants, obligations and provisions contained, conferred or imposed under this Agreement (and all of which are, for the purposes of this clause 1.5, referred to as “provisions”) are severable and divisible as to each provision or part thereof, and should any provision be found to be invalid or unenforceable by a competent Court (or by an arbitrator or arbitrators appointed in terms of this Agreement), the remaining provisions or parts thereof shall remain of full force and effect.
1.6. Where any particular number of Days is provided for the doing of any act for any purpose, the reckoning shall exclude the first Day and shall include the last Day. A "Day" means any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa. Unless the context indicates otherwise, any reference to a number of Days shall be a reference to a continuous period.
1.7. Where any amounts are referred to in numerals and in words, in the event of any conflict, the amount referred to in numerals shall prevail.
1.8. Schedules to this Agreement shall be deemed to be incorporated in and form an integral part of this Agreement.
1.9. A reference to any statute shall be construed as a reference to that statute as at the Signature Date and as amended or replaced from time to time.
1.10. No provision herein shall be construed against or interpreted to the disadvantage of a Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.
1.11. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s.
1.12. Where in this Agreement any party is required to take reasonable steps or effort with regards to any obligation arising in terms of this Agreement, the reasonable man’s test as prescribed by law will apply.
2. STRUCTURE AND SCOPE & TERM OF THE AGREEMENT
2.1. Overview: This Agreement is made up of this main body and the Annexes, Service Schedules and any other appendices attached thereto (the “Agreement”).
2.1.1 Main body: This main body sets out the general terms and conditions for the provision of Services and Equipment.
2.1.2 Annexes & Schedules: The Annexes and Schedules contain the Commercial Terms and provisions relating the Services to be provided by Vodacom. Any Service Schedules forming part of this Agreement and attached hereto contain additional terms and conditions applicable to the provision of the Services and Equipment referred to in that Service Schedule (Service Specific Terms and conditions).
2.2. In the event of any conflict between the provisions of this Agreement the following shall be the order of precedence (highest level of precedence first):
2.2.1 the Commercial Terms;
2.2.2 the Service Specific Terms and conditions; and
2.2.3 the main body of this Agreement.
2.3. Start date: Notwithstanding the date of signature hereof, this agreement shall be effective from the Start date and shall remain in force for the Initial Term unless terminated earlier in terms of clause 20 (Termination of a Subscription or this Agreement) below.
2.4. Term: Unless terminated earlier in terms of clause 20 (Termination of a Subscription or this Agreement) below, the Agreement shall continue after the Initial Term for a further period agreed to by the parties and the Initial Term and any additional period shall be the “Term” for the Agreement.
2.5. Each Subscription shall commence on the Connection Date and shall remain in force for the Minimum Subscription Term whereafter it shall automatically be renewed on a month to month basis until the expiration of the Initial Term unless terminated earlier in terms of clause 20 (Termination of a Subscription or this Agreement) below.
3. ORDERING PROCEDURE FOR SERVICES AND EQUIPMENT
3.1 Completing Purchase Orders: Where Purchase Orders are required for additional Services and Equipment and/or new Services and Equipment ordered under this Agreement. The Customer is responsible for accurately completing each Purchase Order.
3.2 Accepting Purchase Orders:
3.2.1 Vodacom shall Accept, reject or request further information about a Purchase Order within the service levels (if included within this Agreement); or within 72 hours of receipt from the Customer;
3.2.2 Vodacom shall not unreasonably withhold its Acceptance of a Purchase Order.
3.2.3 Vodacom shall Accept a Purchase Order either (a) in writing (electronic mail permitted) or (b) by performing the Services or providing the Equipment in a Purchase Order.
3.3 Availability: If Vodacom does not have, or is unable to provide the Equipment or Services requested, Vodacom shall agree with the Customer to provide alternative Equipment or Services (if practicable to do so).
3.4 Incorporation of terms: Each accepted Purchase Order shall be subsidiary to this Agreement and shall be deemed to incorporate the terms of this Agreement.
3.5 Associated Companies
3.5.1 Associated Companies using this Agreement: The Customer and Vodacom may agree in writing but are under no obligation to do so, that an Associated Company is entitled to purchase Services or Equipment from Vodacom using the terms set out in this Agreement. In such a case and at the option of Vodacom either (a) the Customer will purchase on behalf of the Associated Company or (b) the Associated Company will be entitled to issue a Purchase Order to Vodacom. The Customer will inform the Associated Company of the terms of this Agreement and the Customer will remain liable to Vodacom for all obligations of the Associated Company, including the payment for any Services or Equipment provided to the Associated Company.
3.5.2 List of Associated Companies: Where necessary, a list of approved Associated Companies will be attached as an Appendix to this Agreement.
3.6 Service Schedule
3.6.1 Each Service Schedule shall contain the Service Specific Terms and shall be deemed to be a separate agreement on the terms and conditions set out in the Service Schedule and the termination of any specific Service 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.
3.6.2 In the event of any conflict or inconsistency between a Service Schedule and the main body of this Agreement, then the provisions of the Service Schedule shall prevail to the extent to which the conflict relates to the Services and/or Equipment referred to in that specific Service Schedule.
3.6.3 Each Service Schedule shall, where applicable, provide:
184.108.40.206 a description of the Service to be rendered;
220.127.116.11 Minimum Service Schedule Period;
18.104.22.168 the pricing and payment terms as well as any discounts applicable to the Service;
22.214.171.124 required service levels;
126.96.36.199 particular undertakings and terms and conditions not contained in this Agreement which pertain to the Service; and which shall be subject to Customer’s acceptance; and
188.8.131.52 any other information required as provided for in this Agreement.
4. PROVISION OF SERVICES
4.1 Services: Vodacom shall supply the Customer with the Services and/or Equipment set out in Annex 1 (Services to be provided by Vodacom) subject to the terms and conditions set out in this Agreement. Vodacom shall provide all Services with all reasonable skill and care but does not guarantee to provide continuous or uninterrupted access to the Services.
4.2 Provision of Information and Documents:
4.2.1 Customer Information: The Customer shall provide (and shall make sure that its Users and any Associated Companies shall provide) all necessary information and complete all documentation (including in relation to identification and legitimation) which is required by Vodacom and/or the National Regulatory Authority in order for Vodacom to provide the Services.
4.2.2 Accuracy: The Customer confirms that any information which it provides to Vodacom in connection with this Agreement or the provision of the Services as contemplated in clause 4.2.1 is and will be complete and accurate and acknowledges that any incompleteness, inaccuracy or mistake may have an adverse effect on the assumptions set out in the Commercial Terms
4.3 Customer Responsibilities: If Customer fails to comply with any of its responsibilities under this Agreement including as set out in clause 4.2.1 (Customer Information) and in any Service Schedule, then Vodacom will not be liable for any resulting delay or failure to provide the Services and any relevant time periods for Vodacom shall be extended until the Customer has complied with its responsibilities. Vodacom shall be entitled to charge the Customer for any costs incurred by Vodacom as a result of any failure by the Customer to satisfy such responsibilities.
4.4 Network Services:
4.4.1 Without limiting the generality of clause 4.1 above, Vodacom shall provide the Network Services and use all reasonable efforts to make the Network Services available to the Customer at all times. Due to the constraints of radio and electronic communications, the Network Services are not fault free. Information about the constraints of radio and electronic communications can be provided on request.
4.4.2 Notwithstanding the aforegoing, the Customer acknowledges and agrees that service quality, coverage and availability of the Services shall be limited to that provided by the Network and the Services may, from time to time, be adversely affected by physical features such as buildings and underpass as well as atmospheric conditions and other causes of interference; and it shall not hold Vodacom liable for the non-availability of the Services or any alleged inadequacy of the quality thereof.
4.5 Roaming: Vodacom shall use all reasonable efforts to obtain access for the Customer to compatible telecommunications networks when the Customer is roaming outside of the Territory subject to the applicable terms and conditions. Vodacom shall not be responsible for the performance of such networks, and the Customer acknowledges that the quality, coverage, features, functions and services of such networks may be different to the Network.
4.6 Security of communications: Vodacom shall exercise all reasonable efforts to ensure the security of the Customer’s and Users’ communications. However, for reasons beyond Vodacom’s control, it does not promise or guarantee that communications will be completely secure.
4.7 Changes to Services and Equipment: Vodacom may make changes to the Services or Equipment or any part including enhancements, modifications or replacements, provided that such changes do not materially adversely affect the Customer’s or User’s use of the Services or Equipment.
4.8 Network Sunset: Customer hereby acknowledges and accepts that (a) certain Network technologies used to provide the Service on Vodacom Equipment or Customer device hardware / equipment may retire prior to the expiry of the contract; (b) Current Networks may be replaced by further advanced Network technologies during the term of the contract. As a result, Customer agrees that maintaining compatibility of its devices with the available Networks from time to time shall be its responsibility and any associated costs shall be borne by Customer.
4.9 Site regulations: Vodacom agrees to comply with any Customer access and security procedures for a Customer site which Vodacom has approved in advance. In addition, the Customer confirms that any person attending a Customer site from Vodacom or on behalf of Vodacom shall have a safe and suitable working environment.
5. USE OF SERVICES AND EQUIPMENT
5.1 Compliance with terms: The Customer will only use the Services and Equipment in accordance with (i) applicable law, (ii) the terms of this Agreement, (iii) any documentation provided by Vodacom to the Customer in relation to any Software which restricts the use of the Software to certain feature sets or other restrictions which may apply from time to time; and (iv) any other reasonable instructions or conditions notified to the Customer by Vodacom (including any given as a result of instructions imposed by the National Regulatory Authority). Without limiting the generality of the aforegoing, the Customer shall specifically ensure that it complies with all requirements of RICA and in particular shall verify and record all the information that the Customer is obliged to record and store in terms of RICA; The Customer shall ensure that Users also comply with the obligations set out in this clause 5.1.
5.2 Restrictions on use of the Services: The Customer shall not use, and shall take reasonable steps to ensure that Users shall not use the Services and Equipment:
5.2.1 for the transmission of illegal or offensive material;
5.2.2 for the transmission of material that contains software viruses or any other disabling or damaging programs;
5.2.3 in any way which impairs or damages the Network or the provision of the Services; or
5.2.4 fraudulently or illegally or in violation of this Agreement.
5.3 No reselling: The Customer shall not resell, distribute, provide or sub-licence the Services or Equipment to any third party except the Customer may provide the Services and the Equipment to a User without further charge. For the avoidance of doubt, the provision of the Services or Equipment to Users shall not be deemed to be reselling.
5.4 Accessing the Internet: The Customer may use the Services to access the internet, other data networks, websites and other resources or to download Content and load software applications onto Equipment that generate communications traffic (both intentionally and accidentally). The Customer shall be responsible for all Charges which result from such access. Such access shall be at the Customer’s own risk. Vodacom shall not be responsible for such Content unless Vodacom is the Content provider in which event separate terms and conditions will apply.
5.5 Installation of Equipment: If Equipment is required to be installed, the Customer shall:-
5.5.1 obtain in advance of the installation date all necessary consents to allow the Equipment to be installed;
5.5.2 provide Vodacom with all necessary assistance, documentation and access to premises and property to enable Vodacom to carry out the installation on time;
5.5.3 carry out all preparatory work to allow Vodacom to carry out the installation on time.
5.6 Responsibility for Users: Any User may use Equipment and Services provided under this Agreement. The Customer will remain responsible for all obligations relating to the Equipment and Services, including payment obligations.
5.7 Authorised Users: Where Vodacom designates that access to a Service (including ordering) shall be provided only to Authorised Users, Vodacom may provide each Authorised User with a user name and password. The Customer shall make sure that such details are kept current, secure, are used only in accordance with this Agreement and that Vodacom is notified of the identity of Authorised Users from time to time. Vodacom accepts no liability for any unauthorised or improper use of any password, or for any unauthorised disclosure of user names and passwords to third parties. The Customer shall be bound by and liable for all acts and omissions conducted using the username and password up until the time that it informs Vodacom those details are being used without authority. The Customer may be required to sign separate terms and conditions to enable access to a Vodacom ordering and/or management portal.
5.8 Sanctions and Trade/Export Control
5.8.1 Each Party shall, in the context of the Services:
184.108.40.206 comply with all economic, trade and financial sanctions laws, regulations, -embargoes or restrictive measures administered (“Sanctions”), as well as all trade control laws and regulations (“Trade Control Laws”) enacted or enforced by the governments of the United Kingdom, European Union, United States of America and any other relevant country;
220.127.116.11 not knowingly do anything which may cause the other Party or members of its Affiliate to breach Sanctions;
18.104.22.168 provide such assistance, documentation and information to the other party as that Party may reasonably request, including but not limited to, end customer information, destination and intended use of goods or services;
22.214.171.124 notify the other Party in writing as soon as it becomes aware of an actual or potential investigation/breach in relation to the Applicable Laws (and in particular, Sanctions and Export controls restrictive measures) or any material change in the status of any of the parties to this agreement in respect of:
126.96.36.199 Sanctions status e.g. the inclusion on a Sanctions list in any applicable jurisdiction (as stated in 188.8.131.52 above);
184.108.40.206 Licence or authorisation status e.g. a loss of licence/authorisation in respect of Sanctions or Trade Controls;
220.127.116.11 have the right to terminate this agreement if any of the provisions of this clause are breached; and
18.104.22.168 have the right to seek indemnities from the Party which has breached the relevant provisions for any direct losses incurred.
6.1 Delivery of Equipment: Vodacom shall deliver Equipment to the delivery address set out in the Purchase Order. A delivery note, quoting the Purchase Order number, shall accompany the Equipment.
6.2 Ownership of Equipment:
6.2.1 Title: Ownership of Equipment provided to the Customer free of charge shall remain with Vodacom. Ownership of Equipment purchased by the Customer shall pass to the Customer upon the payment in full for that Equipment.
6.2.2 Risk: Risk in the Equipment shall pass to the Customer upon delivery.
6.2.3 Loss or Damage: If the Equipment is damaged on receipt, the Customer shall notify Vodacom as soon as possible and in any event within 5 (five) Business Days of receipt and provide written details evidencing such damage. If Equipment is not delivered within 10 Business Days of the delivery date specified by Vodacom when the Purchase Order is accepted, the Customer shall notify Vodacom as soon as possible. On receipt of such notice, Vodacom shall, provided that there is no dispute as to delivery or damage, within a reasonable time send replacement Equipment.
6.3 Equipment Warranty: Vodacom shall pass on the benefit of any warranties that Vodacom obtains from the manufacturer of any Equipment supplied by Vodacom to the Customer.
6.4 Repair and Replacement: If Equipment supplied to the Customer by Vodacom becomes faulty for reasons unconnected with the Customer’s or any User’s acts, omissions or misuse (including failure to follow the manufacturer’s guidelines) of the Equipment within the manufacturer’s warranty period, the Customer shall notify the fault to Vodacom. On receipt of such notice, Vodacom’s sole liability shall be to at its own option either repair or replace the faulty Equipment in accordance with the terms of the relevant manufacturer’s warranty.
6.5 Upgraded Device: If the Customer wishes to upgrade any device which has not completed any Minimum Subscription Term, then the Customer shall pay the full price of such upgraded Equipment (i.e. the non-subsidised price of the Equipment). The upgraded device shall be subject to a connection period equivalent to the balance of the Minimum Subscription Term that applied to the original device.
6.6 Installation, Use and Maintenance of Equipment: If Equipment is required to be installed, used or maintained at a Customer site, then the Customer shall:
6.6.1 obtain in advance of the installation or maintenance date all necessary consents to allow the Equipment to be installed or maintained;
6.6.2 provide Vodacom with all necessary assistance, documentation and access to premises and property to enable Vodacom to carry out the installation or maintenance on time;
6.6.3 carry out all preparatory work to allow Vodacom to carry out the installation or maintenance on time; and
6.6.4 at its own cost and expense provide: (i) suitable space and environmental conditions for the Equipment used to provide the Services, and (ii) all necessary services at the site for the installation, use and maintenance of the Equipment including, for fixed line services, an adequate power supply, lighting, security and equipment bonding with associated earthing.
7. PROVISION OF SIMs
7.1 Connection of SIMs: The SIMs shall be delivered to the Customer unconnected to the Network and shall be connected (activated) at the request of the Customer upon receipt of the SIMs 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.
7.2 Ownership of SIM: SIMs shall remain the property of Vodacom and are provided for the Customer’s use of the Services.
7.3 Customer obligations: The Customer shall:-
7.3.1 use all reasonable efforts to ensure that the SIMs are only used with the Customer’s authorisation;
7.3.2 inform Vodacom as soon as reasonably practicable after the Customer becomes aware that a SIM is lost stolen or damaged; and
7.3.3 if requested by Vodacom use all reasonable efforts to return SIMs to Vodacom after they have been disconnected from the Network.
7.4 Unauthorised use: The Customer shall be liable for all Call Charges as a result of unauthorised use of a SIM, up to the time the Customer or User has notified Vodacom that such SIM is being used without authorisation. Access Charges shall continue to apply.
7.5 Theft or Loss of SIM Card
7.5.1 The Customer shall not be liable for any loss, liability, damage or expense incurred or suffered by the Customer after notifying Vodacom in terms of clause 7.5.3, save that the Customer will continue to be liable to pay to Vodacom all Monthly Access Charges relating to such SIM card for the remainder of the Initial Term or any notice period, as the case may be.
7.5.2 Vodacom will immediately lock or temporarily disconnect from the Network a lost, stolen, damaged or destroyed SIM card on receipt of the Customer’s notification of such incident.
7.5.3 In addition, the Customer shall or procure that the User and/or any other person who was in possession, or had control of the SIM-card when it was so lost, stolen or destroyed, in terms of RICA, report to a police official at any police station, whenever SIM-card is lost, stolen or destroyed within a reasonable time after having reasonably become aware of the loss, theft or destruction of the SIM-card and ensure that they obtain written proof in the prescribed form, that the report has been made or, in the case of a telephonic report, with the official reference number of the report.
8.1 Provision of Numbers: Vodacom shall allocate mobile telephone numbers to the Customer to access the Network. Vodacom shall be entitled to reallocate or change such numbers as a result of changes in applicable law or instructions from the National Regulatory Authority. In such event, Vodacom shall use all reasonable efforts to minimise any disruption to the Customer. Vodacom shall be entitled to withdraw any numbers that have been allocated to the Customer as a result of the failure by the Customer or User to comply with this Agreement.
8.2 Number Portability: Vodacom shall provide a facility for the transferring of mobile numbers in relation to Subscriptions in accordance with standard industry practice and applicable law.
9. SOFTWARE TERMS
9.1 Where the Services or Equipment provided include Software
9.1.1 Grant of licence: Subject to the terms and conditions of this Agreement including any relevant Service Schedule, Vodacom grants or will make sure that the licensor will grant to the Customer from the date on which the relevant Service is first made available to the Customer a non-transferable, non-sublicensable and non-exclusive licence to use the Software during the Term or the Minimum Service Schedule Period in the Territory in object code form for the Customer’s and its Users’ internal use.
9.2 Restrictions on Use: The Customer shall:
9.2.1 use the Software only in the Territory (unless otherwise specified in the applicable Service Schedule );
9.2.2 not (and shall not authorise or allow any third party including any User to): (i) copy or use the Software or any part, unless expressly authorised by this Agreement, (ii) use the Software on unauthorised equipment or products, (iii) modify the Software or create derivative works based upon the Software or reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, unless and only to the extent any foregoing restriction is prohibited by applicable law, (iv) use or allow the Software to be used to perform services for third parties, (v) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Software, or (vii) alter or remove any proprietary notices or legends contained on or in the Software; and
9.2.3 make sure that Users also comply with the obligations set out in this clause 9.2.
9.3 Authorised Users: Where Authorised Users are specified in a Service Schedule, an Authorised User shall be provided with a user name and password by Vodacom. The Customer shall make sure that such details are kept secure, and used only in accordance with this Agreement. Vodacom accepts no liability for any unauthorised or improper use of any password, or for any unauthorised disclosure of user names and passwords to third parties. The Customer shall be liable for all acts and omissions conducted using the username and password up until the time that it informs Vodacom that such details are being used without authority.
9.4 Right to disable: Vodacom may disable the Software and disable any accounts provisioned as part of a Service Schedule upon the expiry of the Minimum Service Schedule Period or termination of that Service Schedule.
9.5 Post termination obligations: Upon termination of the right to use the Software for any reason, the Customer agrees to destroy all copies, including partial copies, of the Software and any related documentation and to certify that the Software is purged from all Equipment, devices, computer memories and storage devices within the Customer’s control.
9.6 Equipment Software: Equipment Software is licensed under and subject to the terms of (i) any standard form end user licence agreement, (including shrink wrap or click-through software licences) and open source licence provided with the Equipment (ii) any relevant Service Schedule.
9.7 Third Party Software: Where the Services or Equipment include software which is owned by a third party and which is directly licensed to the Customer or Associated Company or User by the third party separately from this Agreement (“Third Party Software”), the Customer acknowledges that such Third Party Software is subject to the terms of any standard form end user licence agreement, (including shrink wrap or click-through software licences) and open source licence provided by the third party with the Services and Equipment.
10.1 What the Customer shall pay: The Customer shall pay the Charges.
10.2 When to pay: Vodacom shall issue a monthly invoice to the Customer (or, where relevant, make available such invoice for download. The Equipment Charges and Access Charges shall be invoiced upon delivery of the Equipment by Vodacom and the Call Charges and the charges in respect of any value added services shall be invoiced monthly by Vodacom in arrears and the monthly Access Charge shall be invoiced monthly in advance. The Customer shall pay the Charges within 30 (thirty) days of the date on any invoice.
10.3 How to pay: The Customer shall pay the Charges via electronic funds transfer (EFT) or direct debit directly into a bank account provided by Vodacom in writing.
10.4 Invoice Disputes:
10.4.1 Where the Customer disputes that an invoice or any part of it is payable by the Customer (“disputed amount”), the Customer shall notify Vodacom within 21 days of receipt of the invoice of the disputed amount, including details of why the disputed amount is incorrect and/or is being disputed and, if possible, how much the Customer considers to be the correct amount. If the Parties are unable to resolve the disputed amount then the matter shall be referred for resolution in accordance with clause 24 (Escalation Procedure).
10.4.2 All other Charges not related to the dispute (“the undisputed amount”) shall be paid in accordance with clause 10.2 (When to Pay).
10.4.3 Payment of an invoice does not prejudice the Customer’s or Vodacom’s ability to dispute the accuracy of an invoice within the limitation period under applicable law.
10.5 Payment following Invoice Disputes: If an invoice dispute is resolved in favour of the Customer then Vodacom shall immediately issue a credit note in favour of the Customer of the disputed amount. Customer may request that Vodacom add interest to the credit note at the rate in clause 10.6.1 (Charge Interest). If the dispute is resolved in favour of Vodacom then the Customer shall immediately pay the disputed amount to Vodacom.
10.6 What Vodacom may do if the Customer does not pay on time: Where the Customer does not pay the Charges by the due date, and has not raised a dispute in accordance with clause 10.4 (Invoice Disputes), Vodacom shall be entitled to do the following:
10.6.1 Charge interest: Interest may be charged on any unpaid amount from the payment due date until payment is made by the Customer in full 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).
10.6.2 Suspend the provision of the Services/Equipment: If the Customer has not paid within 14 days of receiving notice of the failure to pay, Vodacom shall be entitled to suspend any further deliveries of any Equipment or the provision of any Services until Vodacom has been paid in full. If the non-payment is in respect of a specific User, Vodacom shall be entitled to suspend any further deliveries of any Equipment or the provision of any Services in respect of that User until Vodacom has been paid in full
10.6.3 Withhold any sums owing: Vodacom may withhold any sums currently owing to the Customer by Vodacom by way of credit note or rebate and offset such sums against the sums owing.
10.7 VAT: The Charges shall be exclusive of any applicable VAT (or any similar tax in any relevant jurisdiction) which shall be paid in addition by the Customer to Vodacom. If VAT is chargeable in respect of any amount payable hereunder, the Customer shall, upon receipt of an appropriate tax invoice, pay to Vodacom the VAT chargeable in respect of that payment. The Customer agrees to provide its VAT registration number and such other further information as Vodacom may reasonably request in relation to any supply hereunder.
10.8 Withholding Tax: The Charges shall be paid without withholding or deduction unless prohibited by any applicable law. If withholding tax is payable by Customer the Customer will, at the same time as making the charge or payment, pay to Vodacom such additional amount as will result in the receipt by Vodacom of the full amount which would otherwise have been receivable had no withholding or deduction been payable and will supply to Vodacom evidence satisfactory to Vodacom that the Customer has accounted to the relevant authority for the sum withheld or deducted. In the event that the Customer is obliged by applicable law to deduct withholding tax from any Charges, the Customer shall assist Vodacom in making necessary filings in order to ensure the provisions of the relevant tax treaty apply to the payment.
11. SUSPENSION OF SERVICES
11.1 Material breach: If a Customer or a User commits a material breach of this Agreement, Vodacom shall be entitled to suspend the Services and/or any Equipment from using the Network. -
11.1.1 Such suspension will be without notice if this is required by law or there is a breach of 5.1 (Compliance with Terms), clause 5.2 (Restrictions on Use of the Services and Equipment) and clause 5.3 (No Reselling) and each of these shall be deemed to be a material breach.
11.1.2 Suspension in the event of failure to pay will be as set out in clause 10.6.2 (Suspend the provision of the Services/Equipment);
11.1.3 Subject to clause 11.3, in all other circumstances, prior to such suspension Vodacom will first provide 30 (thirty) days written notice to the Customer.
11.2 Maintenance: From time to time Vodacom will need to carry out maintenance, modification and testing of the Network, during which time Vodacom shall be entitled to suspend the Network Services. Vodacom may also suspend the Network Services if there is a technical failure of the Network, to safeguard the security and integrity of the Network or if required by law. Vodacom shall keep all suspensions to a minimum.
11.3 Fraud: Vodacom can without notice to the Customer suspend or restrict the use of any of the Services (other than emergency services) by the Customer and/or any User(s) if:
11.3.1 Vodacom believes that any number, SIM, Equipment or Services are being used in an unauthorised, illegal or fraudulent way; or
11.3.2 where Vodacom identifies what it reasonably determines to be Artificially Inflated Traffic.
11.4 Effect of Suspension: If the Services are suspended due to the Customer’s acts and/or omissions, the Customer must pay to Vodacom all reasonable costs and expenses incurred by Vodacom in the implementation of such suspension and/or the recommencement of the suspended Services and all Charges for the Services during any such period of suspension.
12. ENTERPRISE BUNDLE SERVICES & FAIR USAGE
In the event of Vodacom providing the Customer with Enterprise Bundle Services subject to Customer’s written approval, Vodacom shall provide the required Enterprise Bundle Services subject to the applicable fair usage terms and conditions. The commercial terms relating to the agreed Enterprise Bundle Services shall where applicable, be specified in the Commercial Terms and the applicable fair usage terms and conditions shall be specified in the Service Schedule.
13. TRANSITION PROVISIONS
13.1 Moving Services: The Customer shall make sure that it has fulfilled the terms of any contracts entered into with incumbent suppliers for the provision of services. Vodacom shall not be liable for any early termination fees incurred by the Customer as a result of moving services to Vodacom from such suppliers.
13.2 Notices: The Customer shall perform such acts as reasonably required by Vodacom to enable Vodacom to be able to provide the Services including appropriate notifications to the incumbent supplier and necessary authorisations for Vodacom to communicate with the incumbent supplier on behalf of the Customer so that the Services can be provided.
13.3 Site Surveys: Vodacom shall only perform Site Surveys for those Customer sites which Vodacom and the Customer agree to have surveyed. For any Site Survey performed, Vodacom will provide the Customer with a report detailing the results of the Site Survey and any work that is required to be undertaken by the Customer at the Customer’s own cost and expense prior to the installation and provision of the Services and/or Equipment. Failure to carry out any such work may delay the provision of the Services and/or mean that Vodacom is unable to provide the Services to the Customer.
14. FIXED LINE SERVICES
14.1 Supply: Vodacom shall only supply the fixed line services subject to: (i) Vodacom confirming that the existing infrastructure at the Customer site(s) is sufficient for the deployment of fixed line services at such site(s) or the Customer carrying out any work at the Customer’s own cost and expense which is required by Vodacom to enable Vodacom to provide fixed line services at the Customer site(s) and (ii) Network availability for fixed line services. Vodacom shall have no liability to the Customer to the extent that it is not possible, for technical reasons or otherwise, to be able to provide any of the fixed line services.
14.2 Changes to Fixed Line Equipment: The Customer shall not allow anybody other than someone authorised by Vodacom to add to, modify, or alter in anyway Equipment used for the fixed line services provided by Vodacom or its subcontractors. The Customer shall remain liable for any loss or damage to such Equipment provided, except where such loss or damage is due to reasonable wear and tear, or is caused by Vodacom.
14.3 Use of Fixed Line Equipment: The Customer shall be responsible for the safe custody and use of the fixed line services and the Equipment used to provide the fixed line services. The Customer shall use such fixed line services and equipment in line with any relevant instructions notified by Vodacom from time to time, and in accordance with all applicable telecommunications standards and laws.
14.4 Customer Premises Equipment: The Customer must only use customer premises equipment which Vodacom supplies or which Vodacom has approved as being compatible with the Network. The Customer shall make sure that all Equipment and customer premises equipment is maintained and kept in good working order. Customer premises equipment shall only be connected to the Network using a Vodacom approved network termination point.
15. REPRESENTATIONS & WARRANTIES
15.1 The Customer warrants and represents to Vodacom, which enters into this agreement in reliance upon such warranties and representations, that –
15.1.1 all information and details furnished by the Customer to Vodacom as at the date of signature hereof by the Customer, the Connection Date and from time to time thereafter shall be true and correct in every respect and that at such date/s the Customer shall not be aware of any fact, matter or thing which may result in such information being incorrect or varied, save to the extent disclosed by the Customer to Vodacom in writing. The Customer shall make reasonable efforts to ensure that the information provided by the Users shall be true and correct and in doing so shall meet or exceed the standards prescribed by RICA where such information is information required in terms of RICA
15.1.2 it shall notify Vodacom forthwith in writing of any change in such information and/or details;
15.1.3 It shall at all times -
22.214.171.124 not act or omit to act in a way which may damage any property or the Network or however cause the quality of the Services to be impaired;
126.96.36.199 only use or permit the usage of the Number and SIM card as authorised by Vodacom or any Regulatory Authority in regard to the System, from time to time;
188.8.131.52 provide Vodacom with all necessary requests for information and co-operation required by Vodacom for purposes of providing the service;
184.108.40.206 comply with all reasonable instructions given by Vodacom in relation to the use of the Numbers, the SIM cards and the Network;
220.127.116.11 not use or allow others to use the service for any improper, immoral or unlawful purpose.
15.2 No other warranties: All warranties, conditions or other terms (whether express, implied or tacit, by statute, common law or otherwise) as to the quality of the Services, the SIM cards or the Numbers or their fitness for any particular purpose are hereby expressly excluded.
15.3 Each of the parties represents and warrants that:
15.3.1 it is an entity duly registered under the laws of the Republic of South Africa and is fully qualified and empowered to own its assets and undertake the activities which it carries on;
15.3.2 it has the power to enter into this agreement, and to perform the obligations expressed to be assumed by it herein and has duly authorised the person/s signing this agreement to execute and deliver this agreement on its behalf;
15.3.3 neither the Customer or Vodacom is to the best of its knowledge in wilful breach of or in wilful default under any agreement to which it is a party or which is binding on it or any of its assets;
15.3.4 there are no pending or threatened actions or proceedings before any court or administrative body which might materially adversely affect and party’s financial position or operations.
15.4 Each of the representations and warranties given by a Party in terms of this clause shall –
15.4.1 prima facie be deemed to be a material representation of fact inducing the other Parties to enter into this Agreement;
15.4.2 be a separate warranty and in no way be limited or restricted by reference to or inference from any other warranty.
16. DATA PROTECTION
16.1 Applicable Privacy Law: Each of Vodacom and the Customer shall comply with Applicable Privacy Law in respect of Information and Customer Data.
16.2 Controller. The Customer acknowledges and agrees that Data is Processed as a result of Services being provided and that Vodacom is the Controller for such Data. The Customer shall ensure that such Data is accurate and up to date when disclosed.
16.3 Authorization to Process. Where required by Applicable Privacy Law (i) the Customer authorises the Processing of the Data and (ii) agrees to use reasonable endeavours to notify Users about:
16.3.1 Processing for maintaining the security, integrity and quality of the Network Services. Such Processing may include interception, monitoring or recording of communications in accordance with applicable law;
16.3.2 The processing by Vodacom of the Information for the purposes of performing the Agreement and providing the Services
16.3.3 Processing for Vodacom’s own market research and analysis in order to develop and improve Vodacom’s products, services and commercial propositions. Such Processing will not include providing Data to third parties or making it publicly available; and
16.3.4 Disclosure of Data by Vodacom to third parties:
18.104.22.168 if required by applicable law, court order or Privacy Authority and/or National Regulatory Authority; or
22.214.171.124 where such third parties are sub-contracted processors of Vodacom; or
126.96.36.199 who are financial agencies (including debt collection or credit reference agencies, fraud monitoring schemes and credit providers) solely for credit vetting purposes only;
188.8.131.52 who are members of the Vodacom Group.
16.4 Exercise of rights: In order to exercise any statutory rights in respect of Personal Data and if required by Applicable Privacy Law, the Customer will notify Vodacom in writing.
16.5 Services requiring transfer of Data from Vodacom to Vodacom Group
16.5.1 Authority: The Customer hereby authorises the transfer of Data from Vodacom to Vodacom Group company to the extent required for the provision of the Services and Equipment.
16.5.2 Customer undertaking: The Customer undertakes that it has all the necessary authorisations and agreements and, where required by Applicable Privacy Law, of Users, for such transfer
16.5.3 Written Authorisation for data release: If Vodacom requires specific authorisation in writing from the Customer for Data to be Processed, the Customer acknowledges that Vodacom will be unable to provide the required Data for the Services until such authorisation is provided. The Customer consents to and permits, and shall also ensure that it has or will obtain from all its Users all necessary consents under Applicable Privacy Law to permit the Processing of Data.
16.5.4 Objections to transfer of Personal Data and Traffic Data:
184.108.40.206 If at any time any User objects to the transfer of Data, the transfer of the Data shall as soon as reasonably practicable be suspended until the dispute is resolved.
220.127.116.11 If at any time Vodacom receives notice of objection from a Privacy Authority to the transfer or collection, processing and use of the Data, Vodacom shall, as soon as reasonably practicable suspend or cease the transfer or collection, and take such other steps as the Privacy Authority may direct.
17. CONFIDENTIALITY AND SECURITY
17.1 The Customer agrees to provide to Vodacom all or any information required by Vodacom to enable Vodacom fully and properly to maintain a comprehensive and accurate database of the Customer including (i) the Customer’s name, address, bank details, payment records and (ii) details of the Users relating to each Subscription as provided in the Transaction Schedule (iii) as well as any oral or written enquiries directed by the Customer to Vodacom.
17.2 General obligation of confidentiality: During this Agreement, and for 1 (one) year after its termination, Vodacom or Customer when receiving information (“the Recipient”) undertakes to Customer or Vodacom (“Disclosing Party”) respectively:-
17.2.1 to keep Confidential Information confidential and not to disclose the Confidential Information to any third party for any reason or purpose whatsoever without the prior written consent of the Disclosing party provided that the Recipient shall be entitled to disclose the Confidential Information only to those directors, officers, employees or sub-contractors who need to know the Confidential Information; The Confidential Information shall be supplied by both parties pursuant to the provisions of this Agreement, and on the understanding that same shall not be used or imparted to any other person or entity whatsoever, save as permitted in This Agreement.
17.2.2 not to use, employ, exploit or in any other manner whatsoever utilise the Confidential Information disclosed to it pursuant to this Agreement for any purpose other than for the purposes of performing its obligations under this Agreement without the prior written consent of the disclosing party;
17.2.3 not make any copies and/or reproductions in whatsoever form, nor store same electronically in any medium, of the Confidential Information other than solely for the purposes of performing its obligations under this Agreement;
17.2.4 to ensure its directors, officers, employees and sub-contractors comply with this clause 17 (Confidentiality and Security).
17.3 Confidentiality does not apply: Clause 17.2 shall not apply to any information which:-
17.3.1 which is otherwise in the public domain or becomes publicly available without the breach of any obligation under this Agreement; and/or other than by a breach of clause 17.2;
17.3.2 is provided by a third party who lawfully acquired it and is under no obligation of confidentiality;
17.3.3 is independently developed by the party receiving the information or any of its Affiliates;
17.3.4 is required to be disclosed by law, the National Regulatory Authority or the rules of any applicable stock exchange. provided that in these circumstances, the receiving party shall advise the disclosing party in writing prior to such disclosure to enable the disclosing party to take whatever steps it deems necessary to protect its interest in this regard; provided further that the 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;
17.3.5 is known to or in possession of the receiving party prior to disclosure thereof by the disclosing party and is acquired independently of the disclosing party by the receiving party in circumstances that do not amount to a breach of the provisions of this agreement.
17.4 Limitation: The parties acknowledge that they shall not acquire by implication or otherwise, any rights, title or interest or licence in or to or in respect of the Confidential Information disclosed to it pursuant to this Agreement, except as may be strictly necessary and allowed for the purposes of this Agreement
17.5 Standard Of Care: The receiving party agrees to protect the confidential information of the disclosing party using the same standard of care used to safeguard its own information of a confidential nature and that the confidential information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.
17.6 Announcements: Any announcement or public statement relating to this Agreement must be approved by both parties in writing prior to its release.
17.7 Security of communications: Vodacom shall exercise all reasonable efforts to ensure the security of the Customer’s and Users’ communications and shall, in doing so, comply with all applicable laws and any minimum industry standards. However, for reasons beyond Vodacom’s control, it does not promise or guarantee that communications will be completely secure. The Customer has Security and Privacy measures in place to protect confidential and personal information in relation to its clients, suppliers, contractors, associates as prescribed by Applicable Privacy Law. As a result, the Customer needs to ensure that all its personnel protect any and all information that they are privy too and shall process such information in accordance with applicable legislation, industry good practice and its License requirements
18. INTELLECTUAL PROPERTY RIGHTS (IPR)
18.1 Vodacom retains IPR ownership: The Intellectual Property Rights that exist in or in any part of the Equipment or Services supplied under this Agreement, as well as any improvements or modifications thereto, belong to Vodacom or its licensors and, other than necessary for use permitted under this Agreement, no other right, licence or transfer is granted or implied under such Intellectual Property Right.
18.2 IPR indemnity in favour of the Customer: Subject to clause 18.3; 18.4 and 18.5, Vodacom agrees to indemnify the Customer for all direct losses (including reasonably incurred legal and other professional costs and expenses) payable to a third party arising out of any proven infringement of any Intellectual Property Rights as a direct result of the use by the Customer of the Services or any Intellectual Property Rights owned by Vodacom and permitted for use by the Customer under this Agreement (“the Claim”).
18.3 Requirements for the Customer in respect of a claim: The Customer shall comply with the following requirements to benefit from the indemnity in clause 18.2 (IPR indemnity in favour of the Customer):
18.3.1 the Customer shall promptly notify any claim to Vodacom, giving written details of the claim;
18.3.2 not admit liability, take any action which may prejudice the defence of any Claim or make any agreement or settlement in relation to the claim (unless required by law or a court order) without the prior written consent of Vodacom (not to be unreasonably withheld or delayed); and
18.3.3 the Customer shall give Vodacom all reasonable assistance with reasonable costs met by Vodacom, to enable Vodacom to contest or defend the Claim;
18.3.4 mitigate its losses following a Claim; and
18.3.5 give Vodacom sole conduct of the claim.
18.4 Items not covered by the IPR indemnity: Vodacom shall not indemnify the Customer under clause 18.2 (IPR indemnity in favour of the Customer) and the Customer will indemnify Vodacom against any resulting losses if the claim:-
18.4.1 is connected to the use of equipment or services provided by the Customer or third parties (including Third Party software) or arises as a direct result of Vodacom’s compliance with the Customer’s requirement, designs or instructions
18.4.2 results from the combination of the Services or Equipment or any part thereof with products or services not provided by or authorised by Vodacom;
18.4.3 results from the use of the Services or Equipment or part thereof which is not in accordance with Vodacom’s instructions;
18.4.4 results from modifications by the Customer or any third party to the Services or Equipment or part thereof; or
18.4.5 results from any breach by the Customer, any Associated Company or a User of the provisions of this Agreement or any standard form end user licence agreement, (including shrink wrap or click-through software licences or open source licenses) provided with the Equipment and/or Services; or
18.4.6 relates to use of any original Equipment or Services or any part after a later release is made available to the Customer and communicated by Vodacom as necessary to avoid a Claim.
18.5 Sole remedy: The indemnity in clause 18.2 shall be the Customer’s sole contractual remedy in relation to any claim covered by the indemnity.
19.1 Certain liability not excluded: Neither a Vodacom nor Customer can exclude liability to the other which cannot be excluded by law.
19.2 No liability for consequential losses: Neither Vodacom or Customer shall be liable under this Agreement for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, (including, but not limited to, claims for loss of data, goodwill, profits, use of money or use of the software programs, interruption in use or availability of data or the software programs, stoppage of other work or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in delict or otherwise, whether based on this agreement, any commitment performed or undertaken under or in connection with this agreement, or otherwise. Vodacom shall not be liable for any consequential losses arising as a result of technical or other failure in the Services. Vodacom does not warrant that the service shall be fault free or free of interruptions.
19.3 Liability cap: Vodacom’s liability for all claims arising under this Agreement shall not exceed in any 12 month period the amount of the total Charges paid by the Customer in that 12 month. If this Agreement has not been in effect for twelve (12) months prior to the date of the cause of action giving rise to the first Claim, then the limit of liability shall be the average monthly Charges payable for the months from the Start Date of the Agreement until the date of the cause of action giving rise to the first Claim, multiplied by 12.
19.4 Exclusions from the liability cap: The Customer’s liability to pay the Charges and the Subsidy Recovery Charge is expressly excluded from the limitation of liability in clause 19.3 (Liability Cap).
20. TERMINATION OF A SUBSCRIPTION OR THIS AGREEMENT
20.1 Ending a Subscription: Subject to clause 21 (Consequences of Termination), either party may end a Subscription by serving the other party with 30 (thirty) days written notice provided that this right may only be exercised so that the Subscription ends on or after the expiry of the Minimum Subscription Term. Should the Minimum Subscription Term expire after the Initial Term, the Subscription shall terminate at the expiration of the Initial Term.
20.2 Ending this Agreement by Notice: Subject to clause 21 (Consequences of Termination), either party may end this Agreement by serving the other party with 3 (three) months written notice provided that:
20.2.1 the Agreement ends on or after the expiry of the relevant Initial Term; and
20.2.2 any applicable Subsidy Recovery Charge is paid..
20.3 Ending a Service Schedule by Notice: Either Party may end a particular Service Schedule on 3 (three) months written notice to the other, provided that:
20.3.1 any Service Schedule ends on or after the expiry of the relevant Minimum Service Schedule Period; and
20.3.2 any amounts specified in the Service Schedule and/or any applicable Subsidy Recovery Charge is paid.
20.4 Ending this Agreement for Insolvency: Either party may end this Agreement with immediate effect by writing to the other party if the other party becomes bankrupt or makes an arrangement with or assignment in favour of a creditor, goes into liquidation by an order of Court or under judicial management, whether provisional or final, or administration or a receiver or manager is appointed to manage its business; or cease conducting business in the normal course, or passes a resolution for its winding up or effect or attempt to effect any compromise with its creditors; or allows any judgement against it to remain unsatisfied for 30 (thirty) days or longer or if business rescue proceedings in terms of Section 132(1) of the New Companies Act, No. 71 of 2008 are instituted.
20.5 Ending this Agreement for breach: Either party may end this Agreement immediately upon written notice to the other if, without prejudice to any other legal rights or remedies, including an action for damages, which may be available to the party which gave notice:-
20.5.1 the other party commits a material breach of this Agreement which is capable of remedy and is not remedied within 14 (fourteen) days of written notice from the first party; or
20.5.2 the other party commits a material breach of this Agreement which is not capable of remedy.
21. CONSEQUENCES OF TERMINATION
21.1 Stop Using: On termination of this Agreement or any Service Schedule the Customer, any Associated Companies and its Users shall stop using the Services and Equipment and the SIMs will be disconnected unless otherwise agreed by Vodacom and the Customer.
21.2 Service Schedule and Subscriptions: All relevant Service Schedules and Subscriptions shall terminate at the same time as the Agreement and the provisions of clause 21.4 (Subsidy Recovery Charge) below shall apply unless otherwise agreed by the Parties.
21.3 Access: Where applicable, Vodacom may after giving reasonable notice to the Customer enter any site where Equipment is located to recover such Equipment and the Customer will not sell or transfer possession of the Equipment to any third party.
21.4 Subsidy Recovery Charge: If:-
21.4.1 the Customer requests the ending of any Subscription which has not fulfilled a Minimum Subscription Term; or
21.4.2 ending of this Agreement results in the ending of any Subscription which has not fulfilled a Minimum Subscription Term;
the Customer shall pay any applicable Subsidy Recovery Charge. This clause does not apply if the Customer has ended this Agreement under clauses 20.3 (Ending this Agreement for insolvency) or 20.5 (Ending this Agreement for breach).
21.5 Accrued Rights not affected: Termination of the Agreement shall not end or affect any accrued rights or obligations of either Vodacom or the Customer.
21.6 Survival of terms: Clauses 16 (Data Protection), 17 (Confidentiality and Security), 19 (Liability), 21 (Consequences of Termination), 28.2 (Notices) and 28.5 (Governing Law) of this Agreement shall continue in force after this Agreement ends.
22. CHANGING THE TERMS OF THIS AGREEMENT
22.1 Changes: With the exception of Changes made in accordance with clauses 22.2 (Amendments required by law) and 22.3 (Other Amendments) no Change and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by or on behalf of the duly authorised representatives of both parties. For the purposes of this clause, “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the Electronic Communications and Transactions Act 25 of 2002, and “signed” shall mean a signature executed by hand with a pen and without any electronic process and/or intervention to this Agreement.
22.2 Amendments required by law: Vodacom may vary this Agreement at any time by giving written notice to the Customer when such variations are necessary to comply with applicable law or regulation or notices issued by the National Regulatory Authority .
22.3 Other Amendments: Vodacom may vary this Agreement at any time by giving written notice to the Customer:-
22.3.1 if such changes are necessary (in Vodacom’s reasonable opinion) as a result of alterations made to the Network, the manner in which it operates, or changes to the way that Vodacom provides Equipment or Services (including where, in Vodacom’s reasonable opinion, it is no longer commercially viable to provide a particular Service) provided that such changes affect at least 90% of Vodacom’s customers and are limited to the extent necessary to take account of such alterations; or
22.3.2 to amend the Charges from time to time. Vodacom warrants in favour of the Customer that any variation in the Charges shall at all times correspond to those charges and fees approved by the National Regulatory Authority , if applicable.
22.4 Vodacom shall notify the Customer of changes set out in clause 22.3 (Other Amendments) at least 30 (thirty) days in advance. If the Customer is materially adversely affected by an amendment under clause 22.3.2, then the Customer may escalate the issue. If the issue has still not been resolved after completion of the escalation process set out in clause 24 (Escalation Procedure), the Customer may end a Subscription affected by the amendment on 30 days prior written notice to Vodacom subject to paying the Subsidy Recovery Charge.
23. ASSIGNMENT AND SUBCONTRACTING
23.1 Assignment by Vodacom: Neither Vodacom or Customer may assign its rights under this Agreement without the prior written consent of the other party (not to be unreasonably withheld or delayed). However, Vodacom may assign its rights hereunder to any company within the Vodacom Group without the consent of the Customer, and the Customer may assign its rights or transfer its rights and obligations under this Agreement to a subsidiary or affiliate.
23.2 Sub-contracting: Vodacom may sub-contract any of its obligations hereunder but shall be responsible to the Customer for the acts or omissions of its sub-contractors.
24. ESCALATION PROCEDURE
24.1 Levels of Escalation: Should any disputes or conflict exist (“the Dispute”) in connection with or pursuant to any matter in connection with this Agreement, or the interpretation thereof, including disputes as to its conclusion, binding effect, amendment and termination, other than in respect of provisions which contain their own specific remedies, before that Dispute is referred for resolution by arbitration or litigation, the Parties undertake to enter into negotiations, in good faith, in order to resolve the matter and to arrive, if possible, at an amicable and negotiated solution with regard thereto. Both parties shall use all good faith efforts to resolve the Dispute between themselves. In the event that the Parties are unable to resolve the Dispute, by such negotiation within 5 (five) Days after the date upon which a Party, had, on notice in writing to the other Party, referred the dispute to negotiation (the “Unresolved Dispute”), the Unresolved Dispute shall be escalated 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 of the Unresolved dispute.
24.2 Legal proceedings: Neither Vodacom or Customer shall issue any legal proceedings in relation to any dispute arising out of this Agreement until the conclusion of the escalation procedure provided for in clause 24 (Escalation Procedure).
24.3 Arbitration: The Unresolved 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
24.4 Neither party shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
25.1 Subject to clause 11.1 should either party to this agreement commit a breach (other than a breach expressly referred to in this agreement and in respect of which a remedy has been specified) and remain in default for a period of 14 (fourteen) days after being called upon in writing to remedy such breach, then the party giving such notice shall be entitled to terminate this agreement as against the party to whom notice was given, without prejudice to any other legal rights or remedies, including an action for damages, which may be available to the party which gave notice.
25.2 Notwithstanding the provisions of clause 25.1 above, nothing contained in this agreement shall be construed as precluding the right of Vodacom to suspend the provision to the Customer of all or any Services as provided in clause 11.
26. COMPLIANCE WITH THE APPLICABLE LEGISLATION
26.1 Vodacom warrants that it is and will remain for the duration of this agreement, fully cognisant of any legislative or regulatory requirements and rulings of the National Regulatory Authority that are directly applicable to the provision of Services under this agreement. Vodacom shall promptly identify and notify the Customer of any relevant changes in law, legislative enactments and/or regulatory requirements and of rulings of the National Regulatory Authority that will impact on the manner in which the Services are provided and which have a direct bearing on any of Vodacom’s obligations under this Agreement. Vodacom shall be responsible for any fines and penalties arising from any non-compliance by Vodacom with any law, legislative enactment or regulatory requirements or rulings of the National Regulatory Authority relating to the delivery or use of the services.
26.2 The Customer shall, at all times, comply strictly with all applicable laws, by-laws, rules, any rule of common law, statute or regulation or other subordinate legislation having the force of law when using the Services or Equipment. Without limiting the generality of the aforegoing, the Customer shall ensure that:
26.2.1 it complies with all requirements of RICA and in particular shall verify and record all the information that the Customer is obliged to record and store in terms of RICA;
26.2.2 any applicable and prerequisite licenses, consents and authorities required by any local authorities, governmental bodies, and / or in terms of any by-laws or regulations are in place or are obtained;
26.2.3 it complies with all official regulations or directive or requests for information or circulars published from time to time by the Regulatory Authority as may be communicated by Vodacom from time to time;
26.2.4 generally complies with any other applicable legislation in force from time to time in the Republic of South Africa.
26.3 Any reference in this Agreement to "law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law.
26.4 A reference to any statute shall be construed as a reference to that statute as at the Signature Date and as amended or replaced from time to time.
26.5 Both Parties agree to comply and abide with any rules, regulations, instructions, requirements or policies that either Party has in place regarding access to its premises, security procedures and/or any other procedures at that Party’s premises or regarding use of that Party’s facilities, and further agrees to sign all documentation necessary to ensure that there will be compliance in this regard. In addition each Party undertakes to comply with all health, security and safety laws, policies, regulations and applicable procedures applicable at the said premises. Without limiting the generality hereof, each party will specifically comply with the Occupational Health and Safety Act 85 of 1993.
Vodacom shall comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption and shall not give or receive any bribes, including in relation to any foreign public official.
28. GENERAL PROVISIONS
28.1 Force Majeure: If a Force Majeure event occurs which prevents either Vodacom or Customer from performing any of its obligations under this Agreement to a material extent, the affected party shall not be liable to the other and shall be released from its affected obligations for the period of the Force Majeure event provided that the existence/happening of such cause has been drawn to the attention of the other party within a reasonable time of occurrence of such cause. If the Force Majeure event continues for more than thirty (30) days, either party may terminate the agreement without any further liability
28.2.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process, the payment of any monies and for any other purpose arising from this Agreement, as follows:
Vodacom – Corporate Park Building, 082 Vodacom Boulevard, Vodavalley, Midrand
The Customer: …………………………………………………………
28.2.2 Either party shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.
28.2.3 Any notice given by either party to the other (“the Addressee”) which:
18.104.22.168 is delivered by hand during the normal business hours of the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee at the time of delivery;
22.214.171.124 is posted by prepared registered post to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the Addressee on the 7th (seventh) day after the date of posting;
126.96.36.199 is sent by cable or facsimile to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee on the day following that during which such cable or facsimile is sent, provided that notices sent in this manner shall be confirmed by registered post to the Addressee at its domicilium for the time being.
28.3 Illegality: Any provision of this Agreement found to be illegal or unenforceable shall not form part of this Agreement but the remaining provisions shall continue in full force and effect.
28.4 Entire Agreement: Each Agreement represents the entire agreement between Vodacom and Customer relating to its subject matter and supersedes any previous agreements between the parties relating to its subject matter.
28.5 Governing Law: This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa. The Parties hereto hereby consent and submit to the non-exclusive jurisdiction of the South Gauteng High Court (Johannesburg) of the Republic of South Africa in any dispute arising from or in connection with this Agreement.
28.6 Waiver: No indulgence which either party (“the grantor”) may grant the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
28.7 Relation of the Parties: Nothing in this agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way of any purpose.
28.8 Benefit of the Agreement: This Agreement will inure for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or any of them.
28.9 Costs of this Agreement: Each Party will bear and pay its own costs of and incidental to the negotiation, preparation and signature of this Agreement.
28.10 No Assignment: The Services and/or Equipment is specific to the Customer and accordingly the Customer shall not cede, assign, transfer or delegate any of its rights or obligations in terms of this agreement to any third party without Vodacom’s prior written consent. Vodacom shall be entitled, at any time, to cede, assign, transfer, encumber or delegate any of its rights, title, interest or obligations in terms of this agreement to any of its Affiliates without the Customer’s consent and if, for any reason whatsoever, the consent of the Customer may be required by law, the Customer shall be deemed to have consented thereto in terms of this agreement.
28.11 Exclusivity: Nothing in this agreement shall in any way be construed as creating any right of exclusivity in favour of either Party.
1. SERVICES TO BE PROVIDED BY VODACOM:
2. SERVICE LEVEL AGREEMENT