Terms and Conditions
In this agreement, unless inconsistent with or otherwise indicated by the context:
• “accessory price” means the price of any accessories to the equipment as set out in the service application form;
• “the / this agreement” means the agreement as set out herein together with the service application from and / or any annexure attached thereto which have been initialled by the parties hereto;
• “cellular phone” means the cellular telephone apparatus together with all additions and accessories thereto, as specified in the service application form;
• “CMVAS” means CM Value Added Services (Proprietary) Limited (Registration number: 2004/003828/07);
• “THE CHARGES” MEANS THE AGGREGATE OF ALL CHARGES, INCLUDING THE MONTHLY ACCESS CHARGE, PAYABLE BY THE Customer to CMVAS arising from the supply of equipment and / or the provision of services as published and amended from time to time by CMVAS;
• “Customer” means the Customer specified in the service application form and if more than one person, such persons shall be jointly and severally liable;
• “delivery” means delivery of the cellular phone and / or router and / or other apparatus supplied by CMVAS to the Customer;
• “equipment” means the cellular phone and / or router apparatus and / or other apparatus specified in the service application form;
• “initial period” means the period stipulated in the service application form;
• “installation” means installation of the cellular phone and / or router and / or other apparatus in the product / service at the Customer’s premises stipulated on the service application form;
• “monthly access charge” means the monthly charge for being connected to the system;
• “product / service” means any product / service specified in the service application form, in which the fixed line, cellular and / or data instrument and / or other apparatus is to be installed;
• “the service application form” means the document constituting an order by the Customer for the provision of the services and, if applicable, the supply of the equipment to the Customer by CMVAS;
• “the regulatory authority” means the relevant regulatory authority vested with the power and authority in terms of the Post Office Act, 1958, as amended, (or any Act which replaces it) to regulate the operation of the system and any similar system in the Republic of South Africa;
• ”router” means the voice and / or data least cost routing apparatus together with all additions and accessories thereto, as specified in the service application form;
• “the services” means:
• a basic telecommunications service providing one or two-way communication of speech by fixed line, data and/or wireless telegraphy via the system, and such other additional telecommunications services CMVAS may in its sole discretion choose to make available from time to time by means of the system; and/or
• the sale and delivery to the Customer and the installation of the equipment, if applicable, by CMVAS ;
• “other apparatus” means any other equipment or hardware which is required to be delivered and /or installed and / or made available to the Customer by CMVAS for the purposes of CMVAS fulfilling its obligations to deliver the products / services requested by the Customer in the service application form.
The clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation. This agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
Words importing the singular include the plural and vice versa and words importing any one gender include the other genders.
If any provision in any of the aforesaid definitions is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in the “interpretation” clause of this agreement, effect shall be given to such provision as if it were a substantive provision in the body of this agreement.
2. CONNECTION TO THE SYSTEM AND PROVISION OF THE SERVICES
Subject to the terms and conditions of this agreement, CMVAS shall:
• connect and maintain the connection of the equipment to the system; and
• use its reasonable endeavours to ensure that the services are made available to the Customer throughout the subsistence of this agreement.
Subject to the provisions of clause 19, this agreement shall commence on the date of activation of the services provided for in the service application form and shall continue for the initial period and thereafter indefinitely until terminated by either party hereto giving not less than 90 (ninety) days written notice to the other.
Whilst CMVAS shall make every reasonable effort to meet the installation date set out on the order form, it is recorded that the date provided is a provisional date only and CMVAS shall not be responsible for any consequences of delay nor be liable for any damages (including consequential damages), costs or expenses whatsoever which the Customer may incur or suffer if installation on such date is not met by subject thereto that actual installation shall not be later than 90 (ninety) days from said provisional date. Failing installation the Customer shall have the right to cancel this agreement in writing in which event neither party shall have any claim against the other party.
The Customer shall allow CMVAS and / or its approved representatives to carry out such work to the product / service as is necessary to effect installation and hereby indemnifies CMVAS, its directors, employees, agents and / or approved representatives against all damage, liability, loss, costs and expenses incurred or suffered by such entities in doing so as well as against any claims of whatsoever nature that the Customer might have against CMVAS as a result thereof.
Signature of a delivery or installation note shall constitute proof of delivery by CMVAS to the Customer of the products and / or installation of the service described in such delivery note.
By its signature to the delivery note, the Customer shall be deemed to have inspected the products and such signature shall constitute proof that the products were delivered in a good and proper condition.
6. RISK AND OWNERSHIP
All risk of loss or damage to the equipment shall pass to the Customer upon its delivery to the Customer or upon installation, whichever is the earliest.
Ownership of the equipment shall, notwithstanding delivery thereof to the Customer, at all times remain vested in CMVAS
7. PAYMENT TERMS
The Customer shall pay the charges to CMVAS without any set-off or deduction, within a period of 7 (seven) days from the date of CMVAS’s invoice in respect thereof.
The Customer hereby acknowledges that should any amount not be paid on due date, the full amount owing to CMVAS shall immediately become due and payable without any notice of whatsoever nature, not withstanding that any amount may, as at that date, not yet be due. The Customer shall pay interest on all overdue amounts at a rate of 3% (three percent) above the prime overdraft rate charged by Standard Bank from time to time.
8. VALUE ADDED TAX
The charges set out in any price list issued by CMVAS are exclusive of Value Added Tax.
The Customer shall be liable for and shall pay the amount of Value Added Tax payable from time to time in respect of this agreement, or any other form of tax that may be imposed and be payable in place of such Value Added Tax, or in addition thereto.
The Customer shall not be entitled to set off any amount/s that may be owing to him by CMVAS against any amount he owes or may owe CMVAS in terms of this agreement.
10. VARIATION OF CHARGES AND TERMS
CMVAS shall have the right at any time to revise the charges by publishing an amended tariff, such variation to take effect 30 (thirty) days after written notice unless otherwise stipulated therein.
CMVAS reserves the right to vary the terms and conditions of this agreement at its sole discretion, if such variation is required pursuant to new legislation, Government regulations or a variation of the terms of any licences granted to CMVAS. CMVAS shall notify the Customer of any such variation in writing.
11. CUSTOMER ACKNOWLEDGEMENT
The Customer acknowledges and agrees that:
• the quality of the services provided by CMVAS and the coverage available to the Customer shall be limited to that provided by the system and may be affected by factors beyond CMVAS’s control;
• it shall not hold CMVAS, any of its employees, directors or agents liable for any loss or damage incurred as a result of the unavailability of the system and that CMVAS shall not be liable for any indirect, contingent or consequential loss of whatsoever nature and howsoever arising.
12. USE OF THE SERVICES
To ensure compliance with statutory and / or other regulatory provisions relating to the provision and use of the services, the Customer undertakes to:
• comply with any reasonable instructions issued by CMVAS which relate to the Customer’s use of the services, the equipment or related matters;
• provide CMVAS with all such necessary information that CMVAS may reasonably require; and
• only use equipment which is approved by CMVAS in writing for use with the system.
13. SUSPENSION / DISCONNECTION
CMVAS shall be entitled to suspend the services, and, in CMVAS’s discretion disconnect the equipment from the system under any of the following circumstances:
• during any technical failure, modification or maintenance of the system, provided that CMVAS will use its reasonable endeavours to procure the resumption of the services as soon as reasonably practicable; or
• if the Customer fails to comply with any of the terms and conditions of this agreement (including failure to pay any charges due) until the breach (if capable of remedy) is remedied; or
• if the Customer does, or allows to be done, anything which in CMVAS’s reasonable opinion may have negatively affected the operation of the services.
Notwithstanding any suspension of the services in terms of this clause 13, the Customer shall remain liable for all charges due hereunder throughout the period of suspension.
The Customer hereby indemnifies CMVAS against any liability, loss, cost or damage suffered by the Customer or other person resulting from the suspension / disconnection of the services and / or system.
CMVAS shall be entitled in its sole and absolute discretion, having regard to the circumstances resulting in the suspension or disconnection, charge a reasonable fee for the disconnection or reconnection of the equipment to the system.
14. EXCUSABLE EVENTS
The Customer shall not have any claim against CMVAS arising from any failure or delay in the performance of its obligations caused by an act of force majeure such as acts of God, fire, flood, strike, shortage of utilities, Government action, laws or regulators, defaults, delays or discontinuance on the part of suppliers of goods and services, or on the part of independent contractors, or other circumstances or factors beyond the reasonable control of CMVAS, and to the extent that the performance of obligations of CMVAS hereunder, is delayed by virtue of the aforegoing, any period stipulated for any such performance shall be extended.
15. LIMITATION OF LIABILITY
CMVAS gives no warranties, representations, guarantees or undertakings expressed or implied, concerning the equipment and / or the services. Neither CMVAS, nor its holding company, any of its subsidiaries, subcontractors, employees, affiliates or agents shall be liable to the Customer or responsible for any liability, loss, cost or damage of whatsoever nature or whosoever arising in consequence of any act or omission by CMVAS, its holding company, its subsidiaries, sub-contractors, employees, affiliates or agents in the supply or failure of the equipment and / or the services or otherwise, irrespective of whether such loss or damage is attributable to the fault or negligence of CMVAS, its holding company, its subsidiaries, sub-contractors, employees, affiliates or agents.
The Customer hereby indemnifies CMVAS and shall keep CMVAS indemnified at all times against any liability, loss, cost or damage suffered by CMVAS resulting from any action, proceeding or claim made by the Customer and / or any other third party against CMVAS resulting from the installation and / or the provision of the services or the omission to install and / provide the services, including such damage or loss arising as a result of CMVAS’s negligence.
Subject to the aforegoing provisions of this clause 15, the liability of CMVAS, whether in contract, delict or otherwise, shall not exceed a sum equal to the monthly access charge payable at the date of the claim multiplied by a factor of 10 (ten).
A statement signed by a manager of CMVAS, whose appointment it shall not be necessary to prove, specifying the amounts due, owing and payable by the Customer in terms of this agreement, from time to time, shall be binding on the Customer and prima facie proof of its contents, and shall constitute a liquid document for the purposes of summary judgment or provisional sentence.
17. CONSENT TO JURISDICTION
The Customer and the surety/ies hereby consent in terms of section 45(1) of the Magistrate’s Court Act No 32 of 1944, as amended, in respect of any proceedings which may be instituted against it and / or them by CMVAS arising out of or in connection with this agreement, to the jurisdiction of any Magistrate’s Court which at the time of the proceedings has jurisdiction over it in terms of section 28(1) of the Magistate’s Courts” Act.
Notwithstanding the aforegoing, the Customer and the surety/ies specifically agree that CMVAS may in its discretion disregard the aforegoing and institute proceedings arising out of or in connection with this agreement in the High Court having jurisdiction.
18. CESSION AND ASSIGNMENT
CMVAS shall be entitled to cede, assign or otherwise transfer any of its rights, interests or obligations under and in terms of this agreement without prior notice to or the written consent of the Customer.
The Customer shall not be entitled to cede, assign, transfer, encumber or delegate any of its rights or obligations in terms of this agreement to any third party without CMVAS’s prior written consent.
In the event that the Customer breaches any term of this agreement, then without prejudice to CMVAS’s other rights in terms of this agreement or in law, CMVAS shall have the right to terminate this agreement forthwith by notice if:
• the Customer fails to pay any amount owing to CMVAS on due date and fails to make such payment within 7 (seven) days of receipt of written demand thereof from CMVAS;
• the Customer is unable to pay its debts, commits any act of insolvency as described in the Insolvency Act, 1936, or application is made for the surrender, sequestration, liquidation or winding-up of its estate or if CMVAS anticipates that any of the events as set out in this clause 19.1 are imminent;
• if the Customer does or allows to be done anything which in CMVAS’s opinion will or may have the effect of negatively affecting the operation of the services, and fails to remedy such breach within 7 (seven) days of receipt of written demand to that effect from CMVAS; or
• the Customer commits a breach of any of the terms or conditions of this agreement other than those in clauses 19.1.1 to 19.1.3 and fails to remedy such breach within 7 (seven) days after dispatch of a notice by CMVAS to the Customer requesting the Customer to remedy such breach.
Upon termination of this agreement for any reason whatsoever, CMVAS shall disconnect the equipment from the system and remove it.
20. NOTICES AND DOMICILIA
The Customer hereby chooses as its domicillim citandi et executandi the address recorded on the order form / service application form. CMVAS hereby chooses as its domicillim citandi et executandi the following address:
P.O. Box 310
Fax: 0866 548 888
Unless otherwise agreed by the parties, any notice to be given to either party shall be valid and effective only if it is given in writing, provided that any notice given by e-mail or telefax shall be regarded for this purpose as having been given in writing.
Any notice which is delivered by hand to either party at the address referred to in clause 20.1 shall be deemed to have been received on the day of delivery, provided it was delivered to a responsible person during normal business hours.
Any notice which is sent by telefax to either party at the telefax number referred to in clause 20.1 shall be deemed to have been received on the first business day following transmission.
The Customer consents to CMVAS or its cessionary making enquiries about the Customer’s credit record with any credit reference agency and any other party to confirm the details provided in the service application form. CMVAS or its cessionary may also provide credit reference agencies with regular updates regarding how the Customer manages its account including their failure to meet agreed terms and conditions.
22. WHOLE AGREEMENT
This agreement shall be read in conjunction with the service application form and any other annexure attached hereto. In the event of any conflict between the terms and conditions contained in the service application form, this agreement and any annexures, the terms and conditions of this agreement shall prevail.
The terms and conditions of this agreement and the service application form constitute the entire agreement between the parties and shall supercede all representations, proposals or prior agreements, oral or written and all other communications between the parties relating thereto.
In the event of any one or more of these terms and conditions being unenforceable, it shall be severable and divisible from the remainder of this agreement and if unenforceable for any reason whatsoever, that term and / or condition shall not affect the validity of the remainder of this agreement which will nevertheless be binding and enforceable.
In the event of CMVAS having to refer the matter to its attorneys for collection of any overdue moneys or for any claim whatsoever, the Customer undertakes to bear and be liable for all legal charges incurred by CMVAS and between CMVAS and its own attorneys and shall be further liable for collection charges payable by CMVAS to its attorneys and for any tracing charges and other disbursements incurred by CMVAS in tracing or endeavouring to trace the Customer or the equipment.
25 CREDIT INFORMATION
The Customer consents to and authorises CMVAS or its agents to:
• Contact, request and obtain information at any time from any past or present credit provider (or potential credit provider), trade supplier or registered credit bureau in order to assess the behaviour, profile, payment patterns, indebtedness, whereabouts and credit worthiness of the Customer. The Customer further authorises and instructs the said sources to supply CMVAS with such information upon request.
• Provide information about the behaviour, profile, payment patterns, indebtedness, whereabouts and credit worthiness of the Customer to any credit provider (or potential credit provider), trade supplier or registered credit bureau seeking a trade reference regarding the customer’s dealings with CMVAS.