Subscriber Standard Terms and Conditions
This SUBSCRIBER AGREEMENT details the terms and conditions that govern the relationship between MyVoip Communications (Pty) Limited (hereinafter referred to as MVC), a Private Incorporated company duly registered and incorporated in accordance with the laws of the South Africa and a Subscriber who has signed and entered into an agreement as a Subscriber as detailed in the quotation document/order form that is issued by MVC.
In the signed agreement the subscriber has agreed to be bound by the subscriber terms and conditions as published on the website of MyVoip (namely www.MyVoip.co.za ). This documents details the terms and conditions as referred to and are accepted as being the terms and conditions that cover the relationship between MVC and a Subscriber. The Subscriber acknowledges and agrees to be bound by these terms and conditions from the 3rd day after the date of signature of the issued and signed version of the subscriber quotation/agreement, and as published on this website and as updated by MVC from time to time. The subscriber undertakes to review this agreement, whenever MVC send the Subscriber an email detailing the changes hereto and the date from which such changes become applicable and effective. If the subscriber does not accept the revised terms and conditions, the subscriber shall immediately serve notice of cancellation and the agreements shall terminate as detailed in the agreement.
The headings of the clauses in this agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof. In the Agreement, unless inconsistent or otherwise indicated by the context, the following terms shall bear the following meanings:
1.1 "Agreement" ‑ this agreement and its annexures, all as may be amended, by MVC and published on this website from time to time, and includes the quotation/subscriber application form, together with its annexures.
1.2 "Charges" means the connection charges, monthly service charges, usage charges and any other charges pertaining to the provision of the WISP services and any other services provided to the Subscriber and as modified by MVC form time to time and published on this website
- “Connection charge” means the initial charge for connection to the system as set out in the charges section of the quotation document and as detailed on the website from time to time;
- "Downward Package Migration" moving from one subscription level to another with a lesser subscription rand value per month within the same technology.
- "Effective Date" Notwithstanding the date of signature of the application form, the date of activation of Hardware/Services.
- “Hardware” means all hardware and equipment as approved my MVC and any other applicable hardware including but not limited to antennas, routers, modems, handsets, radios, handsets used by a subscriber to receive and/or send data via the WISP radio link and may include any other special equipment provided by a Network Operator in order to facilitate any enhanced future services to the Subscriber. It also includes all related intellectual property,
- "Installation" means the installation of Hardware on a location or Subscriber laptop/desktop or similar device specified by the Subscriber and agreed to by the Company.
- “Internet" means the interconnected system of networks that connect computers around the world via a TCP/IP protocol.
- "Licence ” means the IECS and IECNS licence granted to MVC or its nominated service provider as published on its website or advised by email or other form of communication from time to time to provide a national data and voice telecommunication service by means of the WISP.
- “Order" means an order including the Quotation document/Order Form completed by a Subscriber and MVC for the provision of the WISP services.
- "Parties" means MVC and the Subscriber and "Party" refers to either of them as so determined by the context.
- "Regulator" means the Independent Communications Authority of South Africa/ICASA".
- "Renewal Period" means a monthly period, as the agreement between the parties is on a month to month basis.
- "MVC" means MyVoip (Pty) Limited a company registered in terms of the laws of the Republic of South Africa.
- "Service" means the services chosen by the Subscriber in the Quotation document/Order form.
- "Subscription Level" means the rate of transfer subscribed for by the subscriber to deliver the services by MVC to the Subscriber.
- "Subscriber" means a party who has signed Quotation document/Order form and to whom the WISP services are made available in terms of the Agreement.
- "Upward Package Migration" means moving from one subscription level to another with a higher subscription rand value per month within the same technology.
- "UIN" means the access numbers, IP address and unique user name or subscription numbers used to identify Subscribers having access to the WISP.
- "VAS" means the Value Added Services offered by MVC from time to time.
- "VAT" means Value Added Tax as provided in the Value Added Tax act 89 of 1991.
- "WISP" means the data and voice network established and operated by the Network Operator in terms of a licence.
- "WISP Services" means the Broadband wireless Internet access services, value-added Internet Protocol ("IP") services and voice services made accessible to the Subscriber by MVC in terms of the Agreement.
Commencement and Termination
- MVC provides inter alia ISP, VoIP and other related products and services.
2.2 Subject to the terms and conditions of this agreement, MVC has agreed to allocate a UIN to the Subscriber and connect the subscriber to the systems and MVC shall use its reasonable endeavours to make the services available to the subscriber throughout the duration of this agreement, save and accept, for circumstances beyond the control of MVC.
- The subscriber acknowledges that charges and the services are rendered to the subscriber by means of the UIN which is issued to the subscriber personally and which facilitates access to the system and the services.
- The services also include direct or outsourced infrastructure, back-office and electronic systems. The methods, technologies, partners and services will continue to grow and be modified by MVC from time to time in response to changes in economic conditions, legislation and international trends.
- The Agreement shall commence on the Effective Date and shall, subject to the provisions of clause 7 and 9 below, continue on a month to month basis until terminated by a party on thirty days written notice:
- Termination may occur:
- By the Subscriber, by giving to MVC a written notice of termination not less than thirty calendar days written notice; and/or
- By the Subscriber, within a period of 7 (seven) days from the Effective Date, should the Subscriber not find the service fit for use, subject to full restitution by the Subscriber including without limitation, return of the Hardware and full payment in respect of all services used which services will be billed per price applicable to the package subscribed for (incl. VAT); and/or
- By MVC, after 20 business days’ notice to Subscriber to notify the Subscriber to rectify a material failure, and after which the Subscriber has failed to comply with.
- By MVC, in the event that the licence to provide the Services has been revoked by the Regulator.
- Notwithstanding the use of agents or other intermediaries (Delegated Service Providers) by MVC, the order by the Subscriber is an offer made by the Subscriber to MVC and will be considered once received by MVC. MVC’s acceptance of the offer shall consist of the activation of the Hardware as contemplated herein, and upon which activation the Agreement shall become binding between MyVoip and the Subscriber.
- The Subscriber may not cancel or terminate the Agreement and demand reimbursement for payments made in terms of this Agreement, or any damages of whatsoever nature as a result of the Subscriber's relocation to an area outside of MVC’s coverage. It is the responsibility of the Subscriber to ensure that he/she/it is happy with coverage in the area where the Services are provided by MVC.
- Notwithstanding any provision contained in this clause 2 or anywhere in these terms and conditions, MVC shall be entitled to terminate the Agreement at any time and provide a reason for such termination in compliance with the applicable legislation
- The Subscriber acknowledges that, upon termination of the agreement and where there has been unused services, MVC shall not in any way, convert such unused services into credit on the Subscriber's account and refund same to the Subscriber.
Supply and installation of Hardware and WISP Services .
3.1 The order placed by the Subscriber to MVC is subject to MVC’s approval.
3.2 MVC may in its discretion refer the Subscriber to a third party who may undertake the installation of the Hardware in its own name and behalf and not as an agent of MVC.
3.3. The Subscriber shall be responsible for obtaining all necessary approvals and authorities imposed by any competent authority or body (this includes but is not limited to body corporates, provincial and local municipalities) and required for the purpose of any such supply and/delivery and/installation, and the Subscriber hereby indemnifies MVC against any claim or liability suffered by MVC by reason of such approval and authorities not having been obtained.
3.4 Ownership in the Hardware will remain vested in MVC . However, all risk in and to the Hardware supplied and delivered by MVC to the Subscriber shall pass to the Subscriber on delivery.
3.5 If any Hardware is lost, stolen or damaged, the Subscriber shall immediately notify MVC in writing and until such notification, the Subscriber shall remain liable for all costs and charges pertaining to such Hardware. MVC shall as soon as reasonably possible replace the Hardware. The cost of this replacement equipment shall be for the Subscriber's account. Such loss, theft or damage and/or the replacement of the Hardware shall in no way be deemed to constitute a termination of the Agreement which shall continue to be of full force and effect.
3.6 The Subscriber hereby warrants and undertakes in favour of MVC that the Subscriber:
3.6.1 Shall not use nor allow the WISP Services to be used for any improper, immoral or unlawful purpose, nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the WISP Services.
3.6.2 Shall only use the Hardware provided by MVC, and comply with relevant legislation and regulations imposed by any competent authority and all directives issued by MVC relating to the use of Hardware and the provision of WISP services.
3.6.3 Recognises that no right, title or interest in the software contained in the Hardware issued to the Subscriber vests in the Subscriber.
3.6.4 Shall not, nor permit any third party to reverse engineer, decompile, modify or tamper with the software contained in or pertaining to any Hardware.
4.1 In consideration for the provision of the WISP Services, Hardware and any other services supplied by MVC to the Subscriber, the Subscriber shall effect payment to MVC of the applicable charges, as detailed in the application form and whether or not the WISP Services have been, or are being utilised by the Subscriber.
4.2 MVC may, by written notice to the Subscriber, vary future charges, either in whole or in part, with effect from the date specified in such notice. Alternatively once the charges have been updated on this website, they shall apply from the day following such publication on the website. The subscriber undertakes to review the terms and conditions on an on-going basis to ensure that the Subscriber is aware of the terms and conditions that apply. The Subscriber agrees to be bound by the terms and conditions once published on the website.
4.3 Unless otherwise agreed to by MVC in writing, the Subscriber shall effect payment to MVC:
4.3.1 for the supply and delivery and maintenance of Hardware and installation on presentation of invoice and against such delivery.
4.3.2 of monthly service charges monthly in advance and of all other charges, monthly in arrears, in either event in full, within 21 days from date of the relevant invoice. In any event payment is levied in advance, and services will not be provided unless paid for in advance in full.
4.3.3 at MVC's premises or at the bankers of MVC in Johannesburg. Where payment is made by the Subscriber through a debit order, other electronic means or any other intermediary, the Subscriber's bankers or other intermediaries shall act as the Subscriber's agent and the Subscriber shall have discharged its obligations only upon payment being received by MVC.
4.4 Notwithstanding the provisions of clause 4.3, MVC may at any time on reasonable written notice to the Subscriber vary its invoicing and payment procedures and requirements.
4.5 In the event that MVC requires payment for the services provided to the Subscriber to be made by debit order, the Subscriber will commit a breach of the Agreement if the Subscriber:
4.5.1 Cancels such debit order without the written consent of MVC.
4.5.2 Changes his banking details upon which the debit order relies, without giving MVC prior notification of such change and providing MVC with the Subscriber's new banking details.
4.5.3 Provides the Service provider with incorrect banking details.
4.6 The Subscriber authorises MVC to debit any bank account held by the Subscriber for the costs owed by the Subscriber to MVC in terms of this agreement.
4.7. The Subscriber acknowledges that payments will be debited from the account or credit card in the name of the Subscriber (or in the name of any third party who has consented thereto by signature next to the account details) as described in the Subscriber Application form.
4.8. The Subscriber acknowledges that when there are insufficient funds in the account or credit card of a third party to cover the debit, MVC reserves its right to debit the Subscriber's banking account or credit card in respect of any Charges owed by the Subscriber to MVC.
4.9. MVC shall be entitled to levy an administration Charge and the Subscriber agrees to pay such a Charge in the event that any debit order or other form of payment is returned unpaid from the account or credit card described in the Subscriber application form.
4.10. The monthly statement shall be sent by MVC to the Subscriber to the address supplied by the Subscriber to MVC. It shall be the duty of the Subscriber to check the statement in order to ensure that the contents thereof are correct. Unless a query is raised in respect of the contents of the statement within 30 days from the date thereof, the contents of the statement shall be deemed to be correct.
4.11 The Subscriber shall not be absolved from paying the full remaining amount of the Subscriber's agreement as a result of incorrect invoices being sent and/or failure of MVC to send statements or invoices to the Subscriber.
4.12 Package Migrations
4.12. 1 The Subscriber shall be entitled to Downward Package Migration subject to (1) one calendar month notice. A migration fee may be charged by MVC in respect of downward migration.
4.12.2 In the event of an Upward Package Migration there will be no fees charged.
4.12.3 Any migration from one package option to another shall for the duration of this agreement and be subject to MVC's approval in its discretion and MVC shall be entitled to levy fees for migrations, but which fees may not exceed the amounts approved or fixed by the responsible regulatory authority from time to time.
4.13 The Subscriber indemnifies and holds MVC harmless for any loss suffered as a result of incorrect amounts being debited in respect of applicable charges.
5.1 MVC may at any time, with the necessary notice to the Subscriber and in any manner whatsoever, suspend the Subscriber's access to the WISP Services in the event that:
5.1.1 Any modification, maintenance or remedial work is required to be undertaken pertaining in any manner whatsoever, to the WISP Services or the Network.
5.1.2 The Subscriber fails to perform any of his or her obligations, or breaches any terms of the Agreement (in which event MVC may also suspend the Subscriber's use of the Hardware).
5.1.3 MVC is unable to provide the WISP Services to the Subscriber at MVC's discretion for any reason whatsoever.
5.1.4 The Subscriber allows unmonitored access to the Services to children under the age of 16 years.
5.2 MVC reserves the right to require the Subscriber to effect payment of any applicable reconnection charges pursuant to the restoration of the WISP Services suspended in the circumstances contemplated in clause 5.1.2. In the event that the Subscriber's access to the Network is suspended, the Subscriber shall still be liable for the monthly service charges during any such period of suspension.
Limitation of liability
6.1 Without detracting from any of the other provisions of the Agreement, MVC shall not be liable to the Subscriber for any loss or damage suffered by the Subscriber and whether the same is indirect, direct or consequential, including loss of profits, in the event that:
6.1.1 MVC fails for any reason whatsoever to supply and/or deliver and/or provide installation of any Hardware either on the required date or at all; and/or
6.1.2 The WISP Services are interrupted, unavailable, suspended or terminated for whatsoever reason; and/or
6.1.3 MVC fails to suspend the provision of the WISP Services to the Subscriber in terms of an arrangement between MVC and the Subscriber or after the Subscriber has specifically requested MVC to do so in order to limit the charges; and/or
6.1.4 Such loss or damage was caused by any negligent act or omission on the part of MVC, its employees or its agents.
6.1.5 Such loss was caused by the Subscriber's actions, including but not limited to: allowing the WISP Services to be accessed by someone else other than the Subscriber, whether such actions are through the Subscriber's negligence, omission or consent.
6.2 MVC shall not be liable to the Subscriber in any circumstances whatsoever for any loss, injury or damage of any nature whatsoever or howsoever arising and whether in agreement or in delict, including loss of profit or any other special damages, indirect or consequential loss or damages which the Subscriber or any other person may sustain, whether as a result of any breach of this agreement by MVC or whether caused directly or indirectly by the Hardware or the use thereof, and the Subscriber hereby indemnifies MVC and holds it harmless against any claim by the Subscriber or any other person.
6.3 The Subscriber hereby indemnifies MVC against any claims arising out of: force majeure or Acts of God (e.g., fire, flood, inclement weather, epidemic, or earthquake); war or act of terrorism, including chemical or biological warfare; labour disputes, lockout, strike, embargo; governmental acts, orders, or restrictions; failure of suppliers or third persons; or where the claim is a result of an action that is beyond MVC's reasonable control.
6.4 MVC shall not be liable for any fraudulent activities that may occur due to access by third parties into the Subscriber's account/connection/premises/voice platform. The Customer shall remain liable for the voice account in the event of such fraudulent activity taking place in the Subscriber's account. MVC reserves its right to scan the Subscriber's voice platform/hardware for any external vulnerabilities/risks. Should MVC detect a vulnerability/risk, MVC will advise the Subscriber accordingly and require the Subscriber to eliminate or mitigate the vulnerability/risk at the Subscriber's expense before providing the Service/s.
7.1 If the Subscriber commits a breach of any of the terms and conditions hereof and remains in default for a period of 7 (seven) days after delivery to the Subscriber of a written notice ("notice of breach") from MVC calling for such breach to be remedied, MVC shall be entitled forthwith and without further notice to the Subscriber to either terminate the Agreement or claim specific performance of all of the Subscriber's obligations, including the immediate payment of all sums of money payable by the Subscriber, whether or not then due, in either event without prejudice to MVC's right to claim such damages as it may have suffered by reason of such breach or failure.
7.2 Without prejudice to the provisions of clause 7.1 above, MVC may forthwith terminate the Agreement at any time by giving Subscriber written notice of such termination if (i) the Subscriber fails to make payment of any charges on or before the due date for payment thereof; and/or (ii) the Subscriber within a 12-month period calculated from a notice of breach, receives a further two notices of breach; or (iii) in the event that the Subscriber is sequestrated, liquidated or placed under judicial management, irrespective of whether any of the aforesaid are provisional or final; or voluntary or compulsory.
7.3 Any termination pursuant to the preceding provisions of this clause shall be without prejudice to any claim MVC may have against the Subscriber in respect of any prior breach of the terms and conditions of the Agreement by the Subscriber.
7.4 Without derogating from any other rights or remedies available to MVC in terms of the Agreement or at law, in the event of the Agreement being cancelled by the Subscriber (for whatsoever reason) prior to the expiry of the Contract Term or any Renewal Period, or in the event of MVC electing to terminate the Agreement pursuant to any breach by the Subscriber which entitles MVC to cancel:
7.4.1 The Subscriber shall be liable to MVC and hereby agrees to pay on demand, the full charges payable to MVC for the remainder of the Contract Term or Renewal Period, as the case may be. The charges shall include but not limited to: the subsidized hardware, the balance of the subscription, service usage charges, legal costs, admin fees, any and all other charges stipulated in clause 4 hereof.
8.1 MVC shall not be liable to the Subscriber under any policy issued or claim declined pursuant to the Subscriber's election to take insurance as provided in the schedule.
8.2 Unless the Subscriber specifically elects to take insurance for the Hardware and related risks or in accordance with the procedures introduced by MVC from time to time, the Subscriber shall not be covered in respect of the Hardware and related risks.
8.3 If at any stage before or after the Subscriber elects to take insurance, the Subscriber requests from MVC a summary of the terms and conditions of the applicable insurance policy, MVC shall use its best endeavours to furnish same to the Subscriber as requested. It shall be the responsibility of the Subscriber to obtain and familiarise himself with the terms and conditions of the insurance policy applicable.
8.4 It shall be the responsibility of the Subscriber to insure the Hardware with any other insurance provider and to ensure that the premiums in respect of the insurance policy are paid timeously and in full.
8.5 Save as provided herein, any queries which the Subscriber may have regarding or arising from the insurance of the Hardware and related risks, shall be directed to the insurance administrators or brokers, as the case may be.
9.1 In the event of the Subscriber failing to effect payment of any amount owing by them to MVC on due date, then without derogating from MVC rights in terms of clause 7, the Subscriber shall be liable to effect payment of interest to MVC on the amount so owing at the prime interest rate as published from time to time by ABSA Bank Limited plus 2% (percent), from due date to date of payment.
9.2 Unless specifically stated otherwise, all prices and charges set out in the Agreement and any price list are exclusive of Value-Added Tax and exclusive any other applicable tax or duty, the liability of which shall vest with the Subscriber.
9.3 The rights and obligations of the Subscriber in terms of the Agreement may not be ceded or delegated to any third party. The rights and obligations of MVC in terms of the Agreement may be ceded and delegated by it to any other party on written notice to the Subscriber.
9.4 MVC may change the terms and conditions of this agreement as a result of changes in taxes, laws, regulations, the terms and conditions of the licence issued to MVC, or events similar to the foregoing. MVC shall notify the Subscriber of any changes as contemplated herein in writing.
9.5 A certificate under the hand of any Manager of MVC certifying the sum of any amount owing by the Subscriber to MVC shall be prima facie proof of its contents and sufficient proof for the purposes of enabling MVC to obtain any judgment or order against the Subscriber.
9.6 In addition to these terms and conditions the Subscriber shall be bound by the terms and conditions applicable to the VAS offered by MVC. The Subscriber may be required to subscribe to a MVC VAS which forms part of a mandatory subscription. The Subscriber shall, however, have a right to request to be exempted from such a subscription, which exemption shall be provided at the sole discretion of MVC.
9.7 In the event of MVC instituting legal proceedings against the Subscriber to recover amounts due to MVC or take any other legal steps arising out of the Agreement, the Subscriber shall be liable for legal costs on the scale as between attorney and own client.
9.8 Should the Subscriber be placed under administration, sequestration or liquidation proceedings, or suffer any other legal disability which will negatively affect the Subscriber's ability to make payment to the Service provider, the Subscriber is required to notify MVC, in writing within 7 (seven) days of occurrence of the afore-mentioned events.
9.9 The Subscriber may not allow children to access the internet services unmonitored and that they do not access websites that have illegal content, including but not limited to pornographic content and/or gambling.
10.1 The Subscriber hereby consents/authorises MVC to disclose the Subscriber's name, address and personal details to any party whenever it is reasonably necessary for MVC to properly perform its functions or protect its interests, or for the purpose of enabling the Network Operator or MVC to provide emergency WISP Services to the Subscriber, or directory or repair services and information to Network users generally. In addition, the Subscriber consents to MVC using any information supplied by the Subscriber for the purposes of informing Subscribers of MVC's and/or MVC's affiliates or partners' services which may interest the Subscriber from time to time.
10.2 The Subscriber hereby consents/authorises MVC at any time, without notice to the subscriber to obtain information about the Subscriber's profile from any authorised and registered credit reference agency in the Republic of South Africa.
10.3 The Subscriber consents/authorises MVC to provide regular reports in respect of Subscriber's payment conduct to any authorised and registered credit reference agency in the Republic of South Africa.
10.4 The Subscriber consents/authorises receiving marketing, promotional updates and subscriber satisfaction surveys from MVC.
10.5 The Subscriber acknowledges that:
- in using the services, the subscriber and its clients do so at their own risk; and
10.5.2 MVC does not guarantee that the service will be uninterrupted or error free. Without limiting the generality of the aforegoing, MVC’s disclaimer of liability includes its liability for any loss or damages incurred by a Client arising from, or in any way relating to:
- fraudulent use of the services by an unauthorised third party on Client 's account;
- any dispute between a subscriber and any other third party, including (without limitation) a third party service provider and/or subscriber’s clients relating to or resulting from the services
- any revision of fees by a third party service provider
- The subscriber acknowledges and agrees that MVC may monitor and record communications for the purposes of subscriber quality and assurance. The subscriber shall be responsible for ensuring that any transaction between subscriber and its own clients complies with the requirements of the applicable legislation including without limitation, Electronic Communications and Transaction Act, 25 of 2002
Ownership, Privacy, Confidentiality and Security
- Ownership of the products, the intellectual property, the know-how, the operating manuals, the documentation, including without limiting the generality of the aforegoing, any copies, translations, compilations, partial copies, modifications, improvements, enhancements and up-grades in respect thereof, shall at all times during the currency of this agreement and thereafter vest in MVC and the subscriber shall not have any rights in respect thereof save as specifically contemplated in this agreement.
- Ownership of the service delivery as well as the payments and transactions platform, the intellectual property, the know-how, the operating manuals, the documentation, including without limiting the generality of the aforegoing, any copies, translations, compilations, partial copies, modifications, improvements, enhancements and up-grades in respect thereof, shall at all times during the currency of this agreement and thereafter vest in MVC and the subscriber shall not have any rights in respect thereof save as specifically contemplated in this agreement. In this regard it is specifically agreed that:
- MVC may use the service delivery platform and license it to other parties and may deal with it in any manner that MVC sees fit.
- The subscribers will be required to accept that, while MVC makes every reasonable effort to ensure compliance under statutory provisions governing jurisdictions other than the Republic of South Africa, MVC cannot and does not warrant such compliance. Moreover, while MVC will do all things reasonably necessary to protect subscriber’s rights of privacy cannot accept any liability whatsoever for unauthorised or unlawful disclosures of subscriber’s personal and confidential information made by third parties who are not subject to MVC’ control.
- For the purposes of this policy MVC categorises information concerning subscribers ("Private Information") as follows:
- “Account Information” means Client’s account history with MVC including, without limitation, all billing information and communications, payment history and the like;
- “Personal Information” means: (i) information relating to subscriber’s personal identity such as race, gender, marital status, age and the like; (ii) subscriber’s financial information such as subscriber’s banking details and any information relating to subscriber’s income and lifestyle levels; and (iii) Client’s contact details such as subscriber’s physical addresses, postal addresses, telephone and fax numbers and the like;
- “Correspondence Information” means the content, correspondent information and the destination/origination of any communications between subscriber and any other person (other than MVC) using the Services which includes email communications, chat room and discussion board communications, instant message communications, experts forum communications, fax-mail communications, membership of mailing lists and the like;
- “Client Identifiers” means usernames, passwords or email addresses provided to a subscriber as part of the Services
- “Security Information” means other security related information other than subscriber Identifiers used by the subscriber in relation to our Services;
- ”Transactional Information” means transactional histories (other than banking details) pertaining to the subscriber’s e-commerce activities;
- ”Stored Information” means the data either created by a subscriber or by a third party and which are stored on MVC’ servers such as image files, documents and the like.
- MVC will not disclose such information save to the extent provided for in this agreement; and MVC use certain of such information about Client in an aggregated form for the purposes of compiling statistical profiles for MVC’s business and marketing activities. MVC is entitled to disclose such information about a subscriber provided that such information is in an aggregated form, which is not capable of being used or interpreted in such a manner as to identify a subscriber as being a subject of that aggregation.
- The Service Usage Information and Transactional Information collected by MVC is used for the purposes of collecting such information for the purposes of determining and verifying the charges payable by a subscriber and for the purposes of administering the relationship with a subscriber. MVC will not disclose such information save to the extent provided for in this agreement. MVC may collect and store such information concerning the subscriber for the purposes of complying with any statutory or regulatory requirement imposed upon MVC. MVC will not disclose such information save to the extent provided for herein
- MVC may collect such information about a subscriber for the purposes of compiling statistical profiles about a subscriber for MVC’s business and marketing activities and for the purposes of customising MVC’s delivery of the Services to a subscriber. While MVC is entitled to use such information about a subscriber for MVC’s own internal business purposes without limitation, MVC undertakes not to disclose it in a non-aggregated form which is capable of being used or interpreted in such a manner as to identify a subscriber as being a subject of that aggregation other than in terms hereof.
- MVC may also collect such information for the purposes of monitoring Client’s use of MVC’s Services for the purposes of ensuring compliance with MVC’s policies MVC will not disclose such information save in compliance with MVC’s obligations in terms of this agreement. The correspondence and information collected by MVC are to be used solely in connection with MVC’s obligations as contained herein and for the purposes of monitoring a subscriber’s use of MVC’s Services in order to ensure Client’s compliance with policy, so as to limit and or prevent breaches thereof. MVC will not disclose such information save in compliance with our obligations in terms of hereof
- The content of a subscriber’s Stored Information may be scanned to ensure compliance with the requirements of this agreement. Any Private Information collected by MVC and which MVC is entitled to use in an aggregated format is MVC’s property and may, in our sole discretion, be used by MVC for any legitimate purpose including, without limitation, the commercial sale thereof to third parties. In such instances, a subscriber has no entitlement to any form of compensation for the use of the subscriber’s Private Information in such an aggregated format.
- To the extent that MVC is required to do so by any competent and/or authorised authority or in terms of any statutory or regulatory provision to intercept, monitor and/or store any of a subscriber’s Private Information or to the extent that MVC is required to intercept, monitor and/or store any of a subscriber’s Private Information for the purposes of enforcing MVC’s own rights, MVC will do so in compliance with the statutory and/or regulatory requirements for such interception, monitoring and/or storage.
- In some instances, such interception, monitoring and/or storage may take place without a subscriber’s knowledge and MVC expressly disclaims any and all liability for any losses or damages that a subscriber or any third party may incur as a result of such interception, monitoring and/or storage. In order to ensure that all users using MVC’s Services comply with all of the provisions of this agreement MVC may monitor a subscriber’s Private Information as may reasonably be necessary to determine such compliance and/or to identify instances of non-compliance. In order to ensure that the security and integrity of MVC Services is not compromised,
- MVC may monitor a subscriber’s Private Information as may be reasonably necessary to safeguard the security and integrity of MVC’s Services in terms of this agreement. In certain circumstances, MVC may procure an element of the Services from a third party service provider such as Telkom SA Limited. To the extent that it may be necessary, and solely for the purposes of providing the Service to a subscriber, and a subscriber irrevocably consents to MVC’s disclosure of any Private Information concerning a subscriber and necessary for the procurement of Subscribers elements of the Services from third party service provider, to such third party service providers.
- For the purposes of this policy MVC categorises information concerning subscribers ("Private Information") as follows:
- DISPUTE RESOLUTION
- If any dispute arises between the parties in regard to the interpretation or carrying into effect of any of the parties’ rights and obligations arising from this agreement, or the termination or purported termination of this agreement or the rectification or proposed rectification of this agreement, the parties agree to negotiate with each other in good faith in an effort to resolve such dispute.
- In the event that the dispute is not resolved as contemplated in this agreement the dispute may be referred by either party to and shall be finally resolved by arbitration.
- That arbitration shall be held -
- with only the parties and their representatives other than legal representatives, present there at;
- in Gauteng.
- It is the parties’ intention that the arbitration shall, where possible be held and concluded within 21 (twenty one) working days after it has been demanded. The party shall use their best endeavours to procure the expeditious completion of the arbitration.
- Save as expressly provided in this agreement to the contrary, the arbitration shall not be subject to the arbitration legislation for the time being in force in South Africa.
- The arbitrator shall be, if the matter in dispute is principally -
- a computing or technical matter, an impartial member of the Computer Service Association;
- any other matter, an impartial practising in advocate of not less than 10 (ten) years standing.
- If the parties fail to agree whether the dispute is of a computing or technical nature or other nature within 7 (seven) days after the arbitration has been demanded, it shall be considered a matter referred to in clause 29.7
- If the parties fail to agree on an arbitrator within 7 (seven) days after the arbitration has been demanded, the arbitrator shall be nominated, at the request of any one of the parties by the President for the time being of the Law Society of the Transvaal (or its successor in Gauteng).
- If that person fails or refuses to make the nomination, either party may approach the High Court of South Africa to make such an appointment to the extent necessary, the Court is expressly empowered to do so.
- The arbitrator shall have the fullest and freest discretion with regard to the proceedings save that he shall be obliged to give his award in writing fully supported by reasons. His award shall be final and binding on the parties to the dispute.
- Any party shall be entitled to have the award made an order of Court of the High Court.
- Any dispute shall be deemed to have been referred or subjected to arbitration hereunder when any party gives written notice to the other of the dispute, demands an arbitration and requests agreement on an arbitrator.
- The provisions of this clause are severable from the rest of the agreement and shall remain in effect even if this agreement is terminated for any reason.
- The parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential unless otherwise contemplated herein.
- The arbitrator shall have the power to give default judgment if any party fails to make submissions on due date and/or fails to appear at the arbitration.
- The costs related to arbitration shall be borne by each party. The party against whom an arbitrator ultimately rules shall refund the costs incurred by the other party.
- The Subscriber shall not be entitled to cede its rights or delegate its obligations hereunder to any other third party without the express prior written consent of MVC.
- MVC shall be entitled (and the subscriber hereby irrevocably consents) to cede and delegate its rights and obligations respectively under this agreement to any of its subsidiaries and its holding company and its subsidiaries from time to time. MVC may also use third parties to render some services required, in order to ensure quality of service and delivery.
- In the event of one or more of the provisions of this agreement being held for any reason to be invalid, illegal or un-enforceable in any respect, such invalidity illegality or enforceability shall not affect any of the provisions of this agreement and this agreement shall be construed as if such invalid, illegal or un-enforceable provision was not part of this agreement and the agreement shall be carried out as nearly as possible in accordance with its original, terms and intent.
- Governing Law and the Process of Law
- This agreement shall be governed, construed and interpreted and take effect in all respects in accordance with and by the substantive laws of the Republic of South Africa. The parties hereby consent and submit to the jurisdiction of the South African courts with regard to all proceedings, actions, applications or the like, undertaken at any time, or instituted by either party against the other, and arising in any way or manner from this agreement.
- The subscriber agrees that the amount due and payable to MVC may be determined and proven by a certificate issued and signed by any independent auditor. Such certificate shall be prima facie proof of the indebtedness of the subscriber.
- Any printout of computer evidence tendered by MVC shall be admissible evidence and the subscriber may not object to the admissibility of such evidence on the grounds that such evidence is computer evidence.
- The subscriber shall be liable to MVC for all legal expenses incurred by MVC on the attorney-and-own subscriber scale in the event of (a) any default by the subscriber or its members or (b) any litigation in regard to the validity and enforceability of this agreement. the subscriber will also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties and for any form of security that MVC may demand.
- The subscriber shall pay into court an amount sufficient to cover all costs for which the subscriber may be liable to MVC or its attorneys in respect of any actions instituted by the subscriber against MVC or by MVC against the subscriber.
- The subscriber agrees that MVC will not be required to furnish security in terms of rule 62 of the rules of Court of the Magistrate's Courts or in terms of rule 47 of the Law of the High Court 59 of 1959.
- The subscriber hereby agrees that MVC shall have the right to institute any legal action in either the Magistrate's Court or the High Court at its sole discretion.
- The subscriber hereby irrevocably cedes, assigns and transfers, makes over unto and in favour of MVC, all Subscriber’s right title and interest in and to its claims against it debtors, both present and future and from whatsoever cause arising, as security for all or any of the amounts which the subscriber may now or at any time in the future owe to MVC.
- The subscriber irrevocably and in term hereof authorises MVC for amounts due and owing to MVC, in its absolute discretion to claim from all or any of Subscriber’s debtors the whole or any portion of the indebtedness of any one or more of them to give a valid receipt or discharge for such indebtedness, to take any action in its name in any court of competent jurisdiction and to proceed in execution thereunder against all or any of the said debtors to cede, transfer, negotiate, pledge or otherwise deal with all or any of the said debtors, to exchange promissory notes, cheques, agreements, documents of title or any other security held by the subscriber.
- The security created by the cession shall be a continuing one, notwithstanding any fluctuation in the amount of indebtedness of the subscriber to MVC.
- The subscriber hereby undertakes on demand, to furnish the supplier with such information concerning its debtors as MVC may reasonably require, enabling MVC to give effect to the provisions of this clause.
- The terms herein supersede all previous conditions but shall not cancel any securities or guarantees held by MVC all of which shall remain in full force and effect and be considered as additional securities and guarantees to Subscribers contained herein.
- Any item delivered to MVC will serve as a pledge in favour of MVC for present and past debts and MVC will be entitled to retain or realise such pledges, as it deems expedient at the value as determined by a sworn valuator appointed by MVC. The sworn or realised value of pledged goods will be offset against Subscriber’s debts and any remaining balance will be paid to the subscriber. The subscriber will be liable for the costs of the sworn valuator who values the goods.
- The subscriber hereby consents to the storage and use by MVC of the personal information that it has provided to MVC for establishing its credit rating. The subscriber hereby acknowledges and agrees that MVC may perform a credit search on the Subscriber’s record with one or more of the registered Credit Bureaus when assessing the subscriber. In addition to monitor Subscriber’s payment behaviour by researching his/her record at one or more of the registered Credit Bureaus, and to use new information and data obtained from other Credit Bureaus in respect of Subscriber’s future applications.
- The subscriber consents to MVC or its cessionary making enquiries about the subscriber’s credit record with any credit reference agency and any other party to confirm the details on this application. MVC 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. The subscriber consents that credit reference agencies may, in turn, make the records and details available to other credit grantors. MVC or its cessionary may also give this information to any person, who, in its opinion, needs to carry out any of MVC or its cessionary’s rights or duties in terms of the contract or any law pertaining to the products and services the subscriber makes use of.
- Record the existence of Subscriber’s account with any Credit Bureau.
- Record and transmit details of how the subscriber has performed, and how the account is conducted by the subscriber in meeting his/her obligations on the account to any credit bureau.
- MVC undertakes to give the subscriber 28 days written notice prior to the forwarding of the details to the database and to MVC disclosing such information to credit control companies, banks and other institutions involved in rating credit.
- The subscriber agrees that MVC will not be held liable for the disclosure of any of this information to such third parties and that no further specific consent need to be obtained for the transfer of such information to a specific third party.
- The subscriber expressly waives all rights to claim prescription under the relevant provisions of the Prescription Act 68 of 1969 as amended
- Whole Agreement, No Amendment
- This agreement constitutes the whole agreement between the parties relating to the subject matter hereof. This agreement supersedes all oral and prior written agreements between the parties on the subject, and any such prior agreements or arrangements shall be deemed to be terminated.
- No party will have any claim or right of action arising from any undertaking not included in this agreement.
- In the event that there is a conflict between the terms and conditions contained in each of the annexures attached hereto, and the terms and conditions contained in the body of the agreement, then the terms and conditions contained in the body of the agreement shall prevail.
- No amendment or consensual cancellation of this agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising under this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
- No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with this agreement.
- To the extent permissible by law no party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
- Miscellaneous matters
- Postal address:
8 Murray Road, Kibler Park, Johannesburg, 2091.
- Any written notice in connection with the Agreement must be addressed for the Attention of the LEGAL DEPARTMENT:
- In the case of MVC to: MVC Communications (Pty) Ltd,
- In the case of the Subscriber to the postal address and fax number set out in the Subscriber details application form to which these standard terms and conditions apply, and marked for the attention of the Subscriber.
- The notice shall be deemed to have been duly given 7 (seven) days after posting, if posted by registered post to the parties addressed in terms of this sub-clause.
- On delivery if delivered to the party's physical address in terms of either this sub-clause or the next sub- clause dealing with service of legal documents.
- On dispatch if sent to the party's then fax number and confirmed by registered letter posted no later than the next business day.
- the addresser is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
- party may change its Postal address for this purpose by notice in writing to the other party.
- Address for service of legal documents (notices and domicilia):
- The parties choose the following physical addresses and fax numbers at which documents and legal proceedings in connection with the Agreement may be served.
- In the case of MVC, to: MVC (Pty) Ltd,
8 Murray Road, Kibler Park, Johannesburg, 2091.
- In the case of the Subscriber, to the physical address and fax number set out in the Subscriber details application form to which these standard terms and conditions are attached and marked for the attention of the Subscriber.
- Either party may change its address for the purpose of the Agreement to another physical address in the Republic of South Africa by notice in writing to the other party.
- No representations: Neither party may rely on any representation which allegedly induced that party to enter into the Agreement, unless the representation is recorded in the Agreement.
- Amendment and Waiver. MVC reserves its right to amend these terms and conditions from time to time. No failure, delay, relaxation, or indulgence on the part of MVC in exercising any power or right conferred upon it in terms of this agreement shall operate as a waiver of such power or right, nor shall any such failure, delay, relaxation or indulgence be deemed to be a novation of any of the terms and conditions of this agreement.
- Indulgences: If either party at any time breaches any of that party's obligations under the Agreement, the other party ("the aggrieved party"):
- May at any time after that breach exercise any right that became exercisable directly or indirectly as a result of the breach, unless the aggrieved party has expressly elected in writing of a clear and unambiguous conduct, amounting to more than mere delay, not to exercise the right (if the aggrieved party is willing to relinquish that right, the aggrieved party will on request do so in writing). In particular, acceptance of late performance shall for a reasonable period after performance be provisional only, and the aggrieved party may still exercise that right during that period.
- Shall not be stopped (i.e. prevented) from exercising the aggrieved party's rights arising out of the breach, despite the fact that the aggrieved party may have elected or agreed on one or more previous occasions not to exercise the rights arising out of any similar breach or breaches.
- Acknowledgements: The Subscriber acknowledges having read and accepted the terms and conditions as set out herein. The Subscriber acknowledges that these terms and conditions may vary from time to time and shall be updated on MVC's website. The Subscriber further acknowledges that the terms and conditions available on MVC's website will be applicable and binding in respect of any dispute arising. The Subscriber acknowledges that any VAS supplied to the Subscriber is in accordance to a separate agreement that the Subscriber is entering into. The VAS is governed in accordance with its own terms and conditions. Furthermore, the Subscriber acknowledges that these terms and conditions will remain in force and effect until the end of the agreement entered into with the Subscriber.
- Termination without Cause: Without prejudice to any other rights at law or set out in the Agreement, MVC may terminate the Agreement upon written notice to the Subscriber in the event that the Licence is revoked, terminated or amended for any reason whatsoever.
- Interception of communications. Subject to the provisions of Regulation of Interception of Communications and Provision of Communication-related information Act (RICA), 70 of 2002, the Subscriber acknowledges MVC's right to intercept, block, filter, read, delete, disclose and use all communications sent or posted via MVC’s network.