Goldtel

1.              Interpretation

Except as otherwise expressly provided herein or in any Service Contract, the following rules of interpretation apply to the Agreement:

1.1           The headings of the clauses in the Agreement are for convenience and reference only. Headings shall not be used in the interpretation of, nor modify nor amplify the terms of the Agreement nor any clause hereof;

1.2           The reference to any one gender includes the other two genders;

1.3           Words importing:

1.3.1               the singular includes the plural and vice versa; and

1.3.2               natural persons include juristic persons (corporate or unincorporated) and vice versa;

1.4           A reference to a statute or statutory provision is a reference to it as it is in force, for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;

1.5           References to clauses and annexures in these General Terms are to the clauses and annexures in such General Terms;

1.6           If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement;

1.7           When any number of days is prescribed in the Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;

1.8           Reference to “day(s)”, “month(s)” or “year(s)” shall be construed as Gregorian calendar day(s), month(s) or year(s);

1.9           The expiration or termination of the Agreement or any Service Contract, shall not affect the provisions of the Agreement or Service Contract, that expressly provide that they will operate after any such expiration or termination or which of necessity must continue to apply such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this; and

1.10       The rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply.

2.              Definitions

2.1           Unless they appear differently from the context or are expressly otherwise defined, words and expressions used in these General Terms or in any Service Contract shall have the meanings ascribed to them in the Electronic Communications Act No. 36 of 2005.

2.2           In these General Terms, except where expressly stipulated otherwise herein or in any Service Contract, the words and expressions set out below, when capitalised, shall have the following meaning ascribed to them:

2.2.1               “Acceptable Use Policy” means policy developed by Goldtel Solutions containing the reasonable rules of conduct for the use of the Service(s), as amended from time to time. The Acceptable Use policy is available for viewing on the Website at www.goldtel.co.za.

2.2.2               “Affiliate” means in relation to a Party:

a)    a person who directly or indirectly controls such Party;

b)    a person who is directly or indirectly controlled by such Party; or

c)    a person who is controlled directly or indirectly by the parent company of such Party,

and for the purposes of this clause 2.2.2 “control” means:

a)    ownership of 50% (fifty percent) or more of the voting rights of a company, or

b)    otherwise having the power to govern the financial and the operating policies of a company, or to appoint the majority of the directors of a company; and

c)    includes a connected person as defined in section 1 of the Income Tax Act 58 of 1962;

2.2.3               “AFSA” means the Arbitration Foundation of Southern Africa;

2.2.4               “Agreement” means collectively;

a)    these General Terms; and

b)    each Service Contract including its associated:

·       Service Order;

·       Service Terms; and

·       Service Level Agreement(s).

2.2.5               “Applicable Laws” means any of the following, to the extent any of these apply to the provision of the Products and/or the Services by Goldtel Solutions and the use thereof by the Customer:

a)    any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time. Without limiting the generality thereof, statutes include the Data Protection Legislation, Electronic Communications Act 36 of 2005 and RICA, and any regulations published in terms of the aforegoing, as amended or replaced from time to time;

b)    the common law in the Republic of South Africa;

c)    any binding court order, judgment or decree;

d)    any applicable industry code, policy or standard enforceable by law;

e)    any relevant direction, rule, pronouncement, policy or order that is given by a regulator.

2.2.6               “Business Day” means Monday to Friday, excluding public holidays in the Republic of South Africa;

2.2.7                “Business Hours” means the hours between 08h00 and 16h30 on Business Days;

2.2.8               “Charges” means the fees, line and CPE rentals and any other charges levied by Goldtel and payable by the Customer as set out in a Service Order;

2.2.9               “Commencement Date” means the date on which a Service Order, duly completed by the Customer, is formally accepted by Goldtel. On the Commencement Date these General Terms shall become binding on the Parties;

2.2.10            “Confidential Information” means all information, in whatever form, which: (i) relates to the Agreement; or (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks, customers, products, developments, trade secrets; know-how and personnel of either Party (including in the case of the Customer, Customer Data) and which may reasonably be regarded as the confidential information of the disclosing party;

2.2.11            “CPA” means the Consumer Protection Act 68 of 2008 and any regulations published in terms of the aforegoing, as amended or replaced from time to time;

2.2.12            “CPE” or “Consumer Premises Equipment” means the electronic communications equipment and/or related hardware or software owned by Goldtel and installed at the Customer Premises by Goldtel to facilitate the provision of the Service(s);

2.2.13            “Customer” means the person described on page 1 of these General Terms;

2.2.14            “Customer Data” includes, but is not limited to, data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing Personal Information of the Customer, its employees or authorised users of the Services, and other data provided to or obtained by Goldtel and its agents in connection with the provision of Services;

2.2.15            “Customer Equipment” means any device which is used by the Customer to access, use or receive the Service(s), including without limitation, a telephone, regardless of technology such as IP (internet protocol) phones, mobile phones, publicly available phones; a handset, a computing device such as a personal digital assistant or a personal computer; a device for receiving a sound radio broadcasting service and a television; or other device or equipment, and any associated software; and

2.2.16            “Customer Premises” means the Customer’s site(s) where the CPE is to be installed and the Services are to be rendered as specified in the Service Order Form;

2.2.17            “Database” means a collection of related data including, but not limited to, text, images sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together;

2.2.18            “Data Protection Legislation” means the legislation relating to data protection in the Republic of South Africa from time to time, including but not limited to the Electronic Communication and Transactions Act 25 of 2002, CPA and POPIA;

2.2.19            “Domain” means an Internet subdomain registered with an authorised registrar appropriate to its top-level domain (TLD) and comprising its constituent domain name server records including, but not limited to, host names, aliases and mail exchange (MX) records;

2.2.20            “Digital Signature” means an electronic signature;

a)    that uses a certificate-based digital identification;

b)    is issued by an accredited certificate authority or trust service provider;

c)    is uniquely linked to the signatory;

d)    that binds the signature to the document with encryption; and

e)    can be verified using public key infrastructure;

but need not be an advanced electronic signature as defined in the Electronic Communications and Transactions Act No. 25 of 2002;

2.2.21            “Emergency Maintenance” means maintenance to the Service(s) intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Services, or substantial loss to Goldtel Solutions, the Customer or any third party;

2.2.22            “General Terms” means the general terms and conditions contained in this document, together with any schedules or annexures signed by the Parties and appended hereto;

2.2.23            “Goldtel Solutions” means Goldtel Industries (Proprietary) Limited, a private company with limited liability trading as Goldtel Solutions, duly incorporated in the Republic of South Africa with registration number 1982/004231//07 and having its principal place of business at 6 Morris Lane, George Central, George, 6530, Republic of South Africa;

2.2.24            “Goldtel Solutions Service Equipment” means equipment necessary for and integrated as part of a Service provided by Goldtel Solutions, including without limitation servers, peripherals, routers, switches, software, Databases, cables, generators, and uninterruptible power supplies;

2.2.25            “Initial Term” means the initial fixed duration of a Service Order, as specified therein and, where not so specified, shall be 12 (twelve) months;

2.2.26            “Intellectual Property Rights” means all the rights in and to intellectual property including (without limitation) the rights in and to trademarks, service marks, trade names, Domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, Database rights, and all similar proprietary rights which may subsist in any part of the world, as well as any Confidential Information or processes relating to that subject matter; and includes explicitly any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;

2.2.27            “Internet” means the international interconnected network of networks using the TCP/IP protocol to exchange data communications;

2.2.28            “Internet Service” a Service providing access to the Internet together with any related Service equipment or support services, as specified in the relevant Service Order;

2.2.29            “Leased Customer Equipment” means Customer Equipment leased from Goldtel in terms of any Service Order;

2.2.30            “Liquidity Event” means the happening of any one or more of the following events in respect of a Party:

a)    it convenes a meeting of its creditors and makes an offer of compromise or makes a proposal for any other composition or scheme of arrangement with its creditors generally; or

b)    it commits an act of insolvency in terms of Section 8 of the Insolvency Act, 1936; or

c)    it is unable to pay its debts as contemplated in Section 345 of the Companies Act, 1973 read with Schedule 5(9) of the Companies Act, 2008 (as amended);

d)    it is sequestrated or liquidated; or

e)    it is placed under business rescue;

2.2.31            “Network Operator” means a person licensed in terms of the Electronic Communications Act No. 36 of 2005 who provides Goldtel with electronic communications network services;

2.2.32            “Notice” means a written document carrying the handwritten or Digital Signature of the duly authorised signatory of a Party;

2.2.33            “Party” means either the Customer or Goldtel Solutions, and “Parties” means both the Customer and Goldtel Solutions collectively;

2.2.34            Personal Information means, in relation to POPIA, information relating to a living natural person, or juristic person and includes, but is not limited to:

a)    contact details such as email addresses, telephone numbers and business or residential addresses;

b)    demographic information such as age, sex, marital status, race, birth date and ethnicity;

c)    historical information such as employment, financial, educational, and criminal;

d)    private correspondence; and

e)    private activities such as data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions and other data necessary for the establishment, billing or maintenance of the transmission);

2.2.35            “Personnel” means any natural person who is either an officer, employee, agent, consultant, or subcontractor of either Party and where the context requires, officers, employees, agents, consultants and subcontractors of a subcontractor, of either Party, that is a corporate person;

2.2.36            “POPIA” means the Protection of Personal Information Act 4 of 2013 and any regulations published in terms of the aforegoing, as amended or replaced from time to time;

2.2.37            “Process” or “Processing” means the handling of Personal Information as contemplated in POPIA, being any operation or activity or any set of operations, whether by automatic means or not, concerning Personal Information, including:

a)    the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration,

b)    consultation, or use:

c)    dissemination by means of transmission, distribution or making available in any other form, by electronic communications or other means; or

d)    merging, linking, blocking, degradation, erasure, or destruction which includes the collection, use, storage, dissemination, modification or destruction thereof regardless of whether such Processing is automated or not;

2.2.38            “Product(s)” means the telecommunications product(s) supplied by Goldtel Solutions to the Customer as described in any Service Order;

2.2.39            “Regulated Customer Data” is that Customer Data of which the use, Processing or transfer is regulated by law or regulation as Personal Information, where Goldtel Solutions or its respective agents come into possession of such Customer Data;

2.2.40            “RICA” means the Regulation of Interception of Communications and Provision of Communication Related Information Act No. 70 of 2002 and any regulations published in terms of the aforegoing, as amended or replaced from time to time;

2.2.41            “Service(s)” means the service(s) provided by Goldtel Solutions to the Customer as described in any Service Order and associated Service Terms;

2.2.42            “Service Commencement Date” means the date on which Goldtel Solutions notifies the Customer that the Services are ready for use, alternatively the date on which the Services are used by the Customer, whichever date occurs first in time;

2.2.43            “Service Contract” means each separate Service Order together with its associated Service Terms, as read with the General Terms;

2.2.44            “Service Level Agreement” means an annexure to Service Terms in which Goldtel Solutions’ support functions are specified with objective, measurable metrics;

2.2.45            “Service Order” means an order for Product(s) and/or Service(s) placed on Goldtel Solutions by the Customer and accepted by Goldtel as contemplated in clause 6.3;

2.2.46            “Service Terms” means the Product and Service specific terms and conditions dealing with a particular Service and/or Product category;

2.2.47            “Time and Materials Rate” means the basis on which Goldtel Solutions will charge the Customer for certain Service(s) as indicated in a Service Order, and which is based on the time spent and the materials utilised to execute Service(s). Time will be billed per the agreed Time and Materials Rates outlined in a Service Order;

2.2.48            “VAT” means value-added tax, chargeable under the Value Added Tax Act, 1991; and

2.2.49            “Website” means the website of Goldtel Solutions at www.goldtel.co.za; and

3.              How the Agreement Works

3.1           Goldtel Solutions will provide Product(s) and/or Service(s) to the Customer as described in Service Orders placed by the Customer on Goldtel Solutions in accordance with the provisions of clause 6, and subject to the terms and conditions contained in the relevant Service Contract.

3.2           These General Terms are the enabling or framework terms that apply to all Service Contracts. The General Terms are supplemented by the Service Terms applicable to the Products and/or Services described in the associated Service Orders.

3.3           Each separate Service Order shall constitute a distinct and separate contract between the Customer and Goldtel Solutions incorporating the relevant associated Service Terms, and these General Terms; each a Service Contract.

3.4           The terms of one Service Contract will not apply to another unless expressly specified in any subsequent Service Contract.

3.5           Unless expressly provided to the contrary, if there is any conflict between any of the documents making up the Agreement, they will be interpreted in descending order of precedence as follows:

3.5.1               the General Terms;

3.5.2               Service Terms;

3.5.3               Service Orders; and

3.5.4               Acceptable Use Policy.

3.6           In addition to the provisions of the Agreement, the Products and Services shall at all times be subject to all laws and regulations applicable in the jurisdiction where they are to be provided.

3.7           From time to time Network Operators may change the configuration of their network services and in such an event the Customer acknowledges and agrees that such an amendment shall be affected by means of an automatic variation to the relevant Service Order(s) as between the Customer and Goldtel Solutions.

3.8           Goldtel Solutions reserves the right to, from time to time, change the configuration of the Service or the CPE, subject to such change not materially affecting the relevant Service(s). Goldtel Solutions undertakes to give the Customer as much notice as is reasonably possible in the circumstances.

4.              SUSPENSIVE CONDITIONS

Goldtel Solutions shall not be obligated to provide any Product(s) and/or Service(s) to the Customer unless the following suspensive conditions are fulfilled:

4.1           the Customer consents to Goldtel Solutions conducting all reasonable credit checks and searches to establish the creditworthiness of the Customer, and in this regard the Customer shall provide all required information and documentation to Goldtel Solutions to enable it to conduct such checks and searches;

4.2           Goldtel is, in its sole discretion, satisfied that the Customer is creditworthy; and

4.3           the Customer provides Goldtel Solution with any suretyship or debit order forms as may be required by Goldtel Solutions, in its sole discretion.

5.              Commencement, Duration and renewal

5.1           These General Terms shall commence on the Commencement Date and shall continue indefinitely and for so long as Goldtel Solutions provides Services or Products to the Customer.

5.2           The commencement date and contract duration of each Service Contract is set out in the relevant Service Order but are subject to the termination rights set out in these General Terms and in the associated Service Terms.

5.3           Notwithstanding the provisions of clauses 3.3, 3.4, 5.1 and 5.2, and any provisions relating to duration, suspension and/or termination contained in any Service Contract: where any particular Service Contracts are interlinked to such a degree that the termination or suspension of the one will result in fulfilment of the other becoming impaired or impossible, in such event the termination or suspension of the one, will result in a concurrent termination or suspension, as the case may be, of the other.

5.4           If the Customer is a natural person or juristic person subject to the CPA, then:

5.4.1               Goldtel Solutions will give the Customer Notice (the “Expiry Notice”) that the Initial Term of a Service Contract is coming to an end. The Expiry Notice must be given not more than 80 (eighty) and not less than 40 (forty) Business Days before the expiry of the Initial Term, and will state the following:

a)    the expiry date of the Initial Term;

b)    any material changes that will apply to the Service Contract beyond such expiry date, as have been as communicated to the Customer in terms of clause 33; and

c)    the Customer’s rights to either to terminate the Service Contract or allow it to automatically renew on a month-to-month basis, subject to the changes described in the Expiry Notice, terminable on 1 (one) month’s written notice by either Party.

5.4.2               Notwithstanding the Initial Term, the Customer shall be entitled to terminate a Service Contract by giving Goldtel 20 (twenty) Business Days’ Notice (“Termination Notice”) of its election to terminate. Such termination will be subject to payment of a reasonable cancellation fee that will be determined and calculated at the time when the Termination Notice is given by the Customer, using the guidelines set out under section 14 and regulation 5(2) of the CPA;

5.4.3               On receipt of the Termination Notice Goldtel will advise the Customer of the amounts which are still owed to Goldtel, namely all the arrear amounts owing to Goldtel in terms of the Service Contract up to the date of termination and the cancellation fee, which the Customer will pay on demand.

5.5           If the Customer is juristic person not subject to the CPA:

5.5.1               it shall not be entitled to terminate the Service Contract until after the expiry of the Initial Term; and

5.5.2               either Party may terminate the Service Contract by giving at least 30 (thirty) days written notice of termination to the other, provided that such termination shall not come into effect before the expiry of the Initial Term; and

5.5.3               unless terminated, the Service Contract shall automatically renew on a month-to-month basis after the expiry of the Initial Term, subject to any changes made to the General Terms.

5.6           The Customer shall be liable for the Charges in respect of the Services to be terminated, for the duration of the termination notice period.

6.              ORDERING PRODUCTS AND/OR SERVICES

6.1           The Customer may, from time to time, complete and deliver a request for Product(s) and/or Service(s) in the form of a Service Order to Goldtel Solutions.

6.2           The Service Order shall be in such format as is provided to the Customer by Goldtel Solutions, who may, in its sole discretion, decide whether or not to accept a Service Order delivered by the Customer.

6.3           A Service Order shall only be binding on both Parties once it has been formally accepted by Goldtel Solutions or Goldtel Solutions provides the Product(s) and/or Service(s), whichever date occurs first.

7.              Installation

7.1           Where applicable, Goldtel Solutions or Agent shall install the Services, CPE, Leased Customer Equipment and, if applicable Customer Equipment purchased from Goldtel Solutions (collectively the “Service Equipment”), at the Customer’s Premises against payment of the relevant installation fee and, if applicable, deposit as set out in the Service Contract.

7.2           If the Customer requests that an installation be performed outside of Business Hours, Goldtel Solutions may, if it can perform such after-hours work, charge an after-hours maintenance charge at the Time and Materials Rate as determined by Goldtel Solutions from time to time.

7.3           The Customer shall provide the necessary space, electricity supply and environmental conditions required for the Service Equipment, subject to the Customer being provided with at least 2 (two) Business Days’ notification from Goldtel Solutions prior to installation.

7.4           If no conduit-pipes are available for Goldtel Solutions’ use in any building where Goldtel Solutions must install Services requiring conduit pipes, Goldtel Solutions may, at its discretion:

7.4.1               refuse to provide the Services in that building or any part thereof until such conduit-pipes or other facilities have been so installed; or

7.4.2               quote an installation cost in respect of the required conduit pipes, and if accepted by the Customer, install the required conduit pipes or other facilities at the Customer’s cost.

7.5           Subject to clause 7.6, installation of the Service Equipment shall have been successfully completed once the Customer can receive the Services.

7.6           Notwithstanding that the Customer might not be able to receive the Services, installation shall nevertheless be deemed to have been successfully completed when such inability is due to a fault with or failure of any Customer Equipment not supplied by Goldtel.

8.              CPE

8.1           Goldtel Solutions shall at all times retain ownership of CPE.

8.2           When the Services require that CPE be installed at the Customer Premises, all risk in and responsibility for the CPE shall pass to the Customer on delivery thereof to the Customer, proof of which delivery shall be evidenced by the Digital Signature or handwritten signature of the Customer, or its representative, or a waybill issued by a courier company.

8.3           The Customer must at its own cost and expense ensure that optimum environmental conditions as may be required for the proper functioning of the CPE are provided, including but not limited to adequate power supply, ventilation, lighting and wall/rack space.

8.4           Unless expressly authorised by Goldtel Solutions, the Customer may not make any alteration or modification to the CPE, including the software incorporated in the CPE.

8.5           If the CPE is lost, stolen, damaged or destroyed, the Customer shall:

8.5.1               immediately notify Goldtel Solutions in writing;

8.5.2               in the case of theft or criminal activity resulting in such damage or destruction, lodge a report at the local police station closest to the Customer Premises and obtain a case number, which it shall communicate to Goldtel Solutions; and

8.5.3               be liable to Goldtel Solutions for:

a)    the replacement cost of the CPE; or

b)    the cost of repair if it is, in the sole determination of Goldtel Solutions economically feasible to repair the CPE; and

c)    the re-installation cost of the CPE.

8.6           If the Customer is not the owner of the premises where the Services and the CPE will be installed, the Customer must before any installation, at its own cost and expense, obtain written permission from the owner of such premises for such installation. The Customer indemnifies Goldtel Solutions against claims, damages, losses, expenses or claims suffered by Goldtel Solutions resulting from the Customer’s failure to obtain such permission.

9.              LEASED CUSTOMER EQUIPMENT

9.1           Unless agreed to the contrary in a Service Contract, the Service(s) are provided exclusive of any required Customer Equipment.

9.2           Customer Equipment may be leased or purchased by the Customer from Goldtel at the prices, fees or rates set out in the relevant Service Order.

9.3           The Customer must, at its own cost and expense, provide the optimum environmental conditions as may be required for the proper functioning of the Lease Customer Equipment, including but not limited to adequate power supply, ventilation, lighting and wall/rack space.

9.4           Leased Customer Equipment shall not become the property of the Customer and must be returned to Goldtel Solutions on termination of the Service Contract in terms of which such Customer Equipment was supplied.

9.5           The Customer must always keep Leased Customer Equipment in its possession and control at the Customer Premises and may not:

9.5.1               give up possession of such Leased Customer Equipment, in whole or in part, to any third party; or

9.5.2               remove the Leased Customer Equipment from the Customer Premises; or

9.5.3               re-install the Leased Customer Equipment at a different location.

9.6           All risk in and responsibility for the Leased Customer Equipment shall pass to the Customer on delivery thereof to the Customer, proof of which delivery shall be evidenced by the Digital Signature or handwritten signature of the Customer, or its representative, or a waybill issued by a courier company.

9.7           Should the Leased Customer Equipment be lost, stolen, damaged or destroyed, the Customer shall:

9.7.1               Immediately notify Goldtel Solutions in writing; and

9.7.2               in the case of theft or criminal activity resulting in such damage or destruction, lodge a report at the local police station closest to the Customer Premises and obtain a case number, which it shall communicate to Goldtel Solutions; and

9.7.3               be liable to Goldtel Solutions for:

a)    the replacement cost of the Lease Customer Equipment; or

b)    the cost of repair if it is, in the sole determination of Goldtel Solutions economically feasible to repair the Leased Customer Equipment; and

c)    the re-installation cost of the Leased Customer Equipment.

9.8           If the Customer is not the owner of the premises where the Leased Customer Equipment will be installed, the Customer must before any installation, at its own cost and expense, obtain written permission from the owner of such premises for such installation. The Customer indemnifies Goldtel Solutions against claims, damages, losses, expenses or claims suffered by Goldtel Solutions resulting from the Customer’s failure to obtain such permission.

10.           Customer Equipment

10.1       Except in respect of Leased Customer Equipment as provided for in clause 9, Goldtel Solutions shall have no responsibility or liability in respect of any Customer Equipment supplied by the Customer for use with the Services, and all risk and responsibility for such Customer Equipment shall always lie with the Customer.

10.2       The Customer must provide, at its own cost and expense, the optimum environmental conditions as may be required for the proper functioning of the Customer Equipment, including but not limited to adequate power supply, ventilation, lighting, and wall/rack space.

10.3       Only Customer Equipment that has been type approved by ICASA may be used in conjunction with the Services. Type approved equipment obtained from authorised dealers will have an ICASA type approved label affixed to the equipment and/or packaging.

10.4       If the Customer Equipment has been modified, it may not be used in conjunction with the Services until such time that ICASA has approved such modification.

10.5       Goldtel Solutions reserves the right to suspend or disconnect from the Goldtel Solutions’ Network any Customer Equipment that has not been approved by ICASA or that has been licensed or approved but has been modified without the approval of ICASA.

11.           Use of the Services

11.1       The provision of any Services to the Customer does not confer on the Customer any right to resell the Services unless the Customer has been granted a licence or licence exemption by ICASA, and Customer has entered into a reseller agreement with Goldtel Solutions.

11.2       The Services may not be used to:

11.2.1            knowingly or negligently create, store or disseminate any illegal content;

11.2.2            infringe on any third parties’ Intellectual Property Rights; or

11.2.3            send unsolicited email.

11.3       For Goldtel Solutions to (i) ensure the provision of the Services, (ii) protect the integrity of the Goldtel Solutions’ Network and (iii) deal with emergencies, for the duration of this Agreement, the Customer must always:

11.3.1            comply with any instructions issued by Goldtel Solutions which concern the Customer’s use of the Services;

11.3.2            provide Goldtel Solutions with all information relating to the Customer’s use of the Services that Goldtel Solutions may reasonably require from time to time; and

11.3.3            allow Goldtel Solutions free access to the Customer’s premises during reasonable hours and upon reasonable notice in the circumstances, to install, inspect, maintain, carry out necessary repairs, replace or remove CPE and/or Leased Customer Equipment.

12.           UPGRADES AND DOWNGRADES

12.1       The Customer may request an upgrade of their Service at any stage subject to the following:

12.1.1            any upgrade in Service is subject to a feasibility assessment;

12.1.2            email confirmation from customer for upgrade or downgrade is acceptable and should be received within 1 business day from the 25th of the month (prior to monthly billing run);

12.1.3            any request made after the 25th of the month will carry over for the billing period of the next month and upgrade done for the 1st of the following month;

12.1.4            the Customer shall be charged pro-rata Charges from the date the upgraded Service is activated; and

12.1.5            the Customer may be liable for additional Customer Premises Equipment Charges.

12.2       After the expiry of the Initial Term, the Customer may request a downgrade of a Service provided that:

12.2.1            any such request must be submitted to Goldtel Solutions as a new Service Order after the expiration of the Initial Term; and

12.2.2            should be made within 1 business day before the 25th of each month.

12.2.3            Any request made after the 25th of the month will carry over for the billing period of the next month and downgrade done for the 1st of the following month.

13.           Failure or unavailability of the Services, CPE and LEASED Customer equipment

13.1       Customer recognizes and accepts that:

13.1.1            the Internet and data networks consist of multiple participating networks that are separately owned and not subject to Goldtel Solutions’ control and, as a result, Goldtel Solutions does not warrant that the Services will be operational on a 24 (twenty-four) hour 365 (three hundred and sixty-five) days per year basis nor the quality nor the data rate between Customer and third parties.

13.1.2            Furthermore, Goldtel Solutions expressly advises, and the Customer acknowledges and accepts that the CPE and the Customer Equipment are not manufactured by Goldtel Solutions, but by third parties. In most cases, Goldtel Solutions will not be able to open such equipment or to test or operate it to ensure that it is fit for purpose and/or is intact before it is handed to the Customer.

13.1.3            Given the disclosures contained in clauses 13.1 and 13.1.2, Goldtel Solutions expressly stipulates and the Customer acknowledges and accepts that Goldtel Solutions cannot and will not warrant or guarantee that the Services, the CPE and/or the Customer Equipment will:

a)    be free of errors or interruptions;

b)    be available;

c)    be fit for any purpose;

d)    not infringe on any third-party rights; and

e)    be secure and reliable,

except where any of the Services, the CPE and/or the Customer Equipment supplied by Goldtel Solutions, are found to be defective and such defect has been solely caused by Goldtel Solutions under sections 54, 55 and 56 of the CPA, where applicable.

13.1.4            Given the aforegoing, Customer agrees that it will not be allowed to:

a)    withhold any amounts due and owing to Goldtel Solutions;

b)    deduct any monies, or

c)    allege a breach of contract

in respect of any temporary unavailability of the Services, CPE and/or Customer Equipment supplied by Goldtel Solutions, except and to the degree that Goldtel Solutions is solely responsible for any such unavailability, or failure.

13.2       Notwithstanding the provisions of clause 13.1.3, Goldtel Solutions will use its best endeavours, where Goldtel Solutions can do so, to notify the Customer of any failure of, or interruption to the Services and, where applicable, any required maintenance and repairs which may result from such failure, interruption or unavailability.

14.           Maintenance of equipment

14.1       Throughout the term of the Service Contract, any CPE and Leased Customer Equipment will be deemed to be in good working order until Goldtel Solutions is advised otherwise.

14.2       The Customer is responsible for maintaining all CPE, Customer Equipment and Leased Customer Equipment unless Goldtel Solutions has agreed to provide maintenance for the CPE or Lease Customer Equipment, which will be charged out at the rate set out in the relevant Service Order.

14.3       Goldtel Solutions will attend to faults reported by the Customer during Business Hours and will apply its reasonable endeavours to have the affected Services restored in the shortest possible time.

14.4       If the Customer requests that a fault be attended to immediately and requires repair work to be carried out outside of Business Hours, Goldtel Solutions may, if it can perform such after-hours work, charge an after-hours maintenance charge on a time-and-material basis as determined by Goldtel Solutions from time to time.

14.5       If Goldtel Solutions determines that the fault reported by the Customer was caused by the Customer or by any Customer Equipment or by any other equipment that Goldtel Solutions has not agreed to cover, the Customer will be liable for payment of the applicable call-out charges, as determined by Goldtel Solutions from time to time.

15.           Customer Obligations and Consents

15.1       The Customer accepts that it:

15.1.1            is responsible for all of the consequences of its own activities and those of its Personnel and all others under its control when using the Services;

15.1.2            is responsible for obtaining, installing and maintaining all Customer Equipment, hardware and software required to access and make use of the Services, unless otherwise agreed in writing;

15.1.3            must make use of the Services in a considerate and lawful way and adhere to the Acceptable Use Policy and ensure that its Personnel and all those under its control do the same.

15.2       In making use of the Services, CPE and, if applicable, Leased Customer Equipment, the Customer:

15.2.1            warrants that it will ensure that it and its employees, agents, contractors or other users of the Services, comply with all Applicable Laws and the Acceptable Use Policy;

15.2.2            warrants that it shall not, and shall ensure that its employees, agents, contractors or other users of the Services shall not, do anything or omit to do anything which directly or indirectly:

a)    damages Goldtel Solutions’ or the Network Operator’s network or any part thereof; and/or

b)    impairs or precludes Goldtel Solutions (and any person with whom Goldtel Solutions interconnects or shares facilities with) from being able to provide its Services in a professional manner; and/or

c)    constitutes, in the opinion of Goldtel Solutions, a contravention of its Acceptable Use Policy;

15.2.3            shall interact with Goldtel Solutions employees and designated contractors in a courteous, respectful and professional manner and not in any manner act in an abusive way and, where relevant, that its employees shall do the same;

15.2.4            grants to Goldtel Solutions or shall procure the grant to Goldtel Solutions or its authorised representatives, all rights of access to the Customer Premises, including any necessary licences, waivers or consents to enable it to perform its obligations or exercise its rights under the Agreement. The Customer shall advise Goldtel Solutions in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer Premises, and Goldtel Solutions shall use all reasonable endeavours to observe and ensure that its employees and authorised representatives observe such regulations and requirements as advised whilst at the Customer Premises;

15.2.5            undertakes that it shall provide Goldtel Solutions with such facilities and information as Goldtel Solutions may reasonably require, to enable it to perform its obligations or exercise its rights under the Agreement;

15.2.6            indemnifies Goldtel Solutions and its affiliates/representatives for any and all losses, damages, costs or expenses resulting from or arising out of any breach of the warranties set out in the Agreement and/or any third party claim or allegation arising out of or relating to the use of the Service, and which relates to any act or omission of the Customer which is, or if substantiated would be, a breach of this clause 15;

15.2.7            shall allow Goldtel Solutions reasonable access to and use of Customer Equipment and Customer-owned hardware, software, equipment, and other resources reasonably required by Goldtel Solutions to perform the Services for the Customer. All the Customer’s resources shall be provided to Goldtel Solutions by the Customer in working order;

15.2.8            undertakes, when requested, to provide Goldtel Solutions with timeous, up to date and accurate information required by Goldtel Solutions in order to provide the Services and comply with Applicable Laws;

15.2.9            consents to Goldtel Solutions carrying out a credit check on the Customer at any relevant credit bureau and agrees that Goldtel Solutions may make the provision of the Products and/or Services subject to its satisfaction with the results, which shall be in its sole discretion.

15.3       If the Customer is a juristic person, Goldtel Solutions may, in its sole discretion, require one or more of its officers to stand surety for the Customer’s obligations under any Service Contract. Notwithstanding that any such Service Contract may have commenced, Goldtel Solutions may withhold delivering the Products and/or providing the Services until such time as the required surety has been given.

15.4       Depending upon the Products and/or Services provided, Goldtel Solutions may be obliged, in terms of the RICA, to obtain certain information from the Customer, and Goldtel Solutions may withhold or suspend providing any Products and/or Services until such time as the Customer has provided the necessary information to Goldtel Solutions.

15.5       If the Customer has not complied with any requirement under this clause 15, Goldtel Solutions shall be entitled to delay providing the Products and/or Services until such time as the Customer has complied. If the Customer does not comply within a reasonable period, Goldtel Solutions may terminate the relevant Service Contract and will not be liable for any damage that the Customer may suffer as a result.

15.6       Goldtel Solutions, in compliance with relevant health and safety standards, has its own compliant health and safety file format. Should the Customer require a health and safety file be created to suit its specifications then the Customer acknowledges that the cost thereof shall be for the Customer’s account.

16.           Goldtel Solutions’ Obligations

16.1       In consideration for the Customer’s payment of the Charges but subject to clauses 6 and 7, Goldtel Solutions shall during the term of each Service Contract, provide the Products and/or Services subscribed for in a professional and workmanlike manner on the terms set out in the Agreement.

16.2       Goldtel Solutions shall always ensure that Goldtel Solutions Personnel are suitably and appropriately qualified, trained, experienced and available to render the Services.

16.3       Goldtel Solutions shall ensure that Goldtel Solutions Personnel shall always, whilst on the Customer’s premises, adhere the health, safety and security policies as are communicated to Goldtel Solutions by the Customer.

17.           INTELLECTUAL PROPERTY

17.1       The Customer acknowledges that any and all patents, registered and unregistered designs, copyrights, trademarks and all other Intellectual Property Rights whatsoever and where so ever enforceable, which are used in connection with the Products, Services, Goldtel Solutions Service Equipment, CPE and Customer Premises Equipment, shall remain the sole property of Goldtel Solutions, its affiliates, subcontractors or suppliers, as relevant.

17.2       Without limitation to clause 17.1, the Customer acknowledges that it shall not be entitled to use the name, trademarks, trade names or other proprietary identifying marks or symbols of Goldtel Solutions without Goldtel Solutions’ prior written consent.

18.           Domain Names

18.1       The Customer warrants that any Domain name registered or administered on its behalf will not contravene the trademark or other intellectual property rights of any third party and that it shall comply with the rules and procedures of the applicable Domain name authorities, registries and registrars. The Customer shall indemnify Goldtel Solutions in respect of any and all losses, damages, costs and expenses arising from or in connection with breach of this clause 18.1.

18.2       The Customer irrevocably waives any claims against Goldtel Solutions which may arise from the acts or omissions of Domain name registries, registrars or other authorities.

18.3       Should the Customer not move the Domain name(s) registered by Goldtel Solutions on its behalf to another Internet provider within 1 (one) month after termination of the Service Contract for the Internet Service, Goldtel Solutions reserves the right to terminate such Domain name(s) with the applicable Domain name authorities, registries and registrars.

19.           IP Addresses

19.1       Any Internet Protocol (IP) addresses assigned to the Customer by Goldtel Solutions in connection with an Internet Service shall be used solely in connection with such Internet Service.

19.2       If such Internet Service is discontinued for any reason (including termination of the Agreement, Service Contract or the Internet Service), the Customer’s right to use the IP addresses shall immediately cease and such IP addresses shall be returned immediately to Goldtel Solutions.

20.           acceptable use policy

20.1       The Customer acknowledges and accepts that:

20.1.1            network security threats evolve quickly and behaviours change as technology changes. As a result, Goldtel Solutions must be able to amend the Acceptable Use Policy at any time and reserves the right to do so;

20.1.2            amendments to the Acceptable Use Policy shall not constitute an amendment of the Agreement;

20.1.3            Goldtel Solutions may use upstream suppliers in providing certain Services, who may maintain their own policies relating to the acceptable or fair use, and/or access of the suppliers’ services (“Third Party Policies”) and Goldtel Solutions will inform the Customer if this is the case;

20.1.4            the Customer must abide, and hereby undertakes to advise, by these Third Party Policies when using the relevant Services; and

20.1.5            Goldtel Solutions may treat a breach of a Supplier’s acceptable use policy as if it were a breach of Goldtel Solutions’ Acceptable Use Policy.

21.           Excusable Events

21.1       Goldtel Solutions shall be excused from performing any of its duties under the Agreement under any of the following circumstances (an “Excusable Event”):

21.1.1            the breach, actions of, or failure to act by the Customer or any third party appointed by the Customer; or

21.1.2            under circumstances where such failure is as a result of circumstances beyond the reasonable control of Goldtel Solutions (supervening impossibility).

21.2       Upon the occurrence of an Excusable Event, Goldtel Solutions’ failure to perform shall not be a breach of the Agreement, and Goldtel Solutions’ obligations shall be suspended for the duration of the Excusable Event.

21.3       Subject to clause 21.4, all contractually linked dates, such as milestone dates or contract end dates will move out with the same amount of time as the duration of the Excusable Event. This clause 21.3 does not apply to Products procured on a subscription basis.

21.4       If other related contingencies prevent contractually linked dates from shifting forward as set out in clause 21.3, or if the Customer insists on original dates being met, then Goldtel Solutions shall be entitled to charge for any additional hours it requires to meet deadlines affected by the Excusable Event. Extra work due to the Excusable Event will be negotiated and agreed upon in writing, signed by both Parties, before such work is conducted. If the Parties cannot reach consensus in time for Goldtel Solutions to meet expected dates, then the provisions of clauses 21.1 and 21.2 shall apply.

21.5       Goldtel Solutions shall not be liable for any failure to fulfil any obligation in terms of the Agreement or for any losses arising out of such failure, where such failure is a result of any Excusable Event.

22.           Charges and Payment

22.1       As consideration for the Products and/or Services, Customer will pay Goldtel Solutions the Charges.

22.2       All fees detailed in each Service Order are exclusive of VAT or any other tax (excluding income tax), levy or import duty payable by Goldtel Solutions in connection therewith, and the Customer shall pay an amount equal to the relevant tax, levy or import duty on the same date as the relevant fee is payable.

22.3       Charges for Services:

22.3.1            Billing will commence on the date that Service provision commences;

22.3.2            Installation and Service Charges will be payable in advance; and

22.3.3            Charges for excess usage and ad hoc Services will be payable monthly in arrears.

22.4       Charges for Products:

Charges in respect of the procurement and installation of Product(s) will be invoiced upon receipt of the applicable Service Order and must be paid before Goldtel Solutions will deliver the Product(s).

22.5       Charges for prepaid Services:

If the Customer is to pay Charges on a prepaid basis the following will apply:

22.5.1            payment for the Services must be made to Goldtel Solutions in advance and will be credited to the Customer’s account with Goldtel Solutions;

22.5.2            charges will be deducted from the Customer’s account with Goldtel Solutions on a declining-balance basis;

22.5.3            if the balance in the Customer’s account reaches zero, the Services will be suspended until the Customer has credited its account appropriately;

22.5.4            credit in the Customer’s account will:

a)    be valid for a period of 6 (six) months from the date of payment, after which such credit will expire and will only be paid back to the Customer on written request by the Customer; and

b)    Credit in the Customer’s account will not accrue any interest for the benefit of the Customer;

22.5.5            Goldtel Solutions may from time to time by publication on the Website, set a minimum balance for prepaid account (failing which the minimum balance will be zero), and/or a maximum amount by which a prepaid account may be in credit.

22.6       Ad Hoc Service Charges:

If Goldtel Solutions agrees to perform any task that is not listed in a Service Order, then the Customer must reimburse Goldtel Solutions for all reasonable expenses that are necessarily and actually incurred by Goldtel Solutions and/or its Staff in doing so. These expenses will include but are not limited to travelling, subsistence, goods and services purchased on the Customer’s behalf, communications, stationery, report and presentation material.

22.7       Increases in Charges:

22.7.1            Goldtel Solutions has the right to, from time to time, change the charges and/or rates for its services for any reason and without prior notification to the Subscriber.

22.7.2            In addition, and subject to the provisions of clause 33, Goldtel Solutions shall be entitled to increase any of the Charges reflected in a Service Contract when there is a price increase on components of the Services beyond the control of Goldtel Solutions, including but not limited to foreign exchange fluctuations, increased pricing on third-party products or services like software license fees, surcharges, taxes, import duties, rates or levies, increased charges from other Network Operators or as a result of a delay caused by any instruction of the Customer. In such event, Goldtel Solutions shall be entitled to increase the Charges of the affected Service Contract(s) in proportion to the increase in cost.

22.8       Payment

22.8.1            All payments shall be made without deduction or set off and shall be free of any bank charges.

22.8.2            Customer shall make payment of invoices within 7 (seven) days of receipt of a valid tax invoice from Goldtel Solutions.

22.8.3            If a particular Service is provided by calendar month, and the commencement date for the Service is not the beginning of a calendar month, the Charges for that first month will be reduced proportionately.

22.9       Interest:

22.9.1            If payment of the Charges due and payable are not received on the due date, Goldtel Solutions may charge interest on the overdue amount.

22.9.2            The interest rate will be 2% (two percent) above the prime overdraft rate (percent, per annum) up to a maximum effective rate of 2% (two percent) per month.

22.9.3            The prime overdraft rate will be as charged by Goldtel Solutions’ s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.

22.9.4            Interest will be calculated on a daily basis from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest on demand.

22.9.5            A certificate signed by a director of Goldtel Solutions, whose appointment and authority need not be proved, shall, unless the Customer can prove that the amount stated is incorrect, be proof of any amount owing by the Customer to Goldtel Solutions under this Agreement.

22.10    Allocation of Payments:

22.11    Goldtel Solutions may allocate all amounts received from the Customer as follows:

22.11.1         firstly, towards interest and reimbursement of expenses;

22.11.2         secondly to Charges payable for Services rendered; and

22.11.3         thirdly to Charges payable for Products purchased.

22.12    Disputed Invoices

22.12.1         Should the Customer in good faith dispute any amount appearing on an invoice (the “Affected invoice”), the Customer shall notify Goldtel Solutions, in writing, of such dispute, specifying:

a)    the Affected Invoice;

b)    the specific amount in dispute; and

c)    the reasons or grounds for such dispute.

22.12.2         The Customer may not withhold any amount unless notice in terms of clause 22.12.1 has been received by Goldtel Solutions prior to the due date for payment of the Affected Invoice. Where a dispute has not been raised prior to the due date for payment of the Affected Invoice, the Customer shall pay the Affected Invoice in full.

22.12.3         After notifying a dispute in connection with any Affected Invoice, subject to clause 22.12.2, the Customer shall be entitled to withhold payment in respect of the disputed amount only and all undisputed amounts must be paid by due date.

22.12.4         The Parties shall endeavour to resolve the dispute relating to the Affected Invoice timeously to ensure that no undue prejudice is suffered by either Party.

23.           Suspension of Services

23.1       Goldtel Solutions may on such notice is as reasonably practical and lawful in the circumstances and without prejudice to any of its rights, suspend the Service(s) (or any part thereof) in any of the following circumstances:

23.1.1            any amount due in terms of clause 22 is still outstanding after having given 5 (five) Business Days’ Notice to the Customer, unless the Customer has lodged a billing dispute with Goldtel Solutions in terms of clause 22.12.1;

23.1.2            the Customer’s pre-paid account balance falls below the minimum balance specified in clause 22.5.5;

23.1.3            Goldtel Solutions is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority;

23.1.4            Goldtel Solutions needs to carry out Emergency Maintenance;

23.1.5            the Customer is in consistent breach of the Acceptable Use Policy;

23.1.6            Goldtel Solutions has reasonable grounds to believe that the Services are being used fraudulently, or illegally, or in violation of the terms of the Agreement; or

23.1.7            Goldtel Solutions has reasonable grounds to believe that the Customer is, or has been, involved or connected with criminal activity or any other activity which may be detrimental to Goldtel Solutions.

23.2       The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.

23.3       Notwithstanding that the Service has been suspended for any reason, the Customer must nevertheless still make payment of all further Charges in respect of that Service and any other amounts due to Goldtel Solutions.

23.4       Except where Service has been suspended in terms of clause 23.1.3 or 23.1.4, reconnection of the suspended Service(s) will be subject to a reconnection fee where applicable.

24.           transmission of data across borders

24.1       Where the Customer’s use of the Service(s) leads to the transmission of data to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with Applicable Laws dealing with data privacy in the Republic of South Africa as well as those laws dealing the data privacy in any foreign country to which the data is transmitted and undertakes to comply therewith.

24.2       Goldtel Solutions has:

24.2.1            no knowledge of or interest in data that the Customer may transmit via, store on or access from the Service(s); and

24.2.2            no duty to monitor any content made available or published through the Service(s), unless required in terms of clause 25 (Statutory Compliance).

25.           Statutory Compliance

25.1       Goldtel Solutions is obliged to comply with certain statutory provisions including, but not limited to, those set out in the following Acts (and their associated regulations) as amended from time to time:

25.1.1            the Films and Publications Act 65 of 1996:

25.1.2            the Electronic Communications and Transactions Act 25 of 2002;

25.1.3            RICA; and

25.1.4            the Electronic Communications Act 36 of 2005.

25.2       Goldtel Solutions’ compliance with these statutory provisions may require the implementation of directives (“Directives”) lawfully directed at Goldtel Solutions, including but not limited to the interception of the Customer’s communications and the examination of Customer Data.

25.3       In fulfilling its obligations contemplated in clause 25.1, Goldtel Solutions shall have no liability for any claims, losses, damages or expenses (“Damages”) incurred by the Customer and arising from the implementation of any such Measures, and the Customer indemnifies and holds Goldtel Solutions harmless against any and all such Damages so incurred by the Customer.

26.           WarrantIES

Each of the Parties (the “Warranting Party”) hereby warrants to and in favour of the other Party on an ongoing basis that:

26.1       it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Agreement;

26.2       the execution of the Agreement and the performance of its obligations hereunder does not and shall not:

26.2.1            contravene any Applicable Laws;

26.2.2            violate any provision of that Party’s constitutional documents; or

26.2.3            conflict with, or constitute a breach, of any provisions of any other agreement, obligation, restriction or undertaking which is binding on the Warranting Party;

26.3       to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all its obligations in terms of the Agreement;

26.4       it is entering into the Agreement as principal and not as agent or in any other capacity;

26.5       the natural person who signs and executes the Agreement on the Warranting Party’s behalf is validly and duly authorised to do so; and

26.6       no other party is acting as a fiduciary for the Warranting Party.

27.           Limitation of liability and Indemnity

27.1       The Customer’s attention is drawn to the limitation of risk and liability of Goldtel Solutions in accordance with section 49(1) of the CPA.

27.2       The Customer acknowledges and confirms that this specific clause of the General Terms has been brought to the Customer’s attention and that the limitations and liabilities set out herein have been explained to the Customer.

27.3       Subject to clause 27.5, each Party (the “Defaulting Party”) shall be liable to the other Party (the “Aggrieved Party”) for any direct damages incurred by the Aggrieved Party arising out of the Defaulting Party’s failure to perform any of its obligations under the Agreement.

27.4       Neither Party shall be liable to the other for any indirect, special or consequential losses or otherwise, including but not limited to, harm to business, loss of revenues, loss of anticipated savings or lost profits, and whether or not reasonably foreseeable at the time when the Agreement or any Service Contract was entered into.

27.5       Notwithstanding anything else in the Agreement, Goldtel Solutions’ total liability to the Customer for damages shall be limited, in the aggregate, to an amount equal to all the Charges paid by the Customer to Goldtel Solutions pursuant to the Service Contract in respect of which such liability has arisen.

27.6       The Customer acknowledges that Goldtel Solutions is unable to exercise editorial or other control over any content placed on or accessible through the Customer’s use of the Services and Goldtel Solutions shall have no liability as to the quality, content or accuracy of information received through or as a result of the use of the Services.

27.7       The limitations of liability outlined in clauses 27.4 and 27.5 shall not apply to:

27.7.1            damages occasioned by the fraud, wilful misconduct, or gross negligence of a Party;

27.7.2            claims that are the subject of indemnification under the Agreement;

27.7.3            damages in respect of any liability for death or personal injury resulting from either Party’s negligence; and

27.7.4            damages in respect of any liability that cannot be excluded in terms of any Applicable Laws.

27.8       The Customer indemnifies Goldtel Solutions, its affiliates, directors, officers, employees, contractors, agents and representatives (the “Indemnified Parties”) against any loss, damage, liability and expense, arising from any negligent act or omission of the Customer, or any of its affiliates, directors, officers, employees, contractors, agents or representatives. This indemnity shall survive the termination of this Agreement and any Service Contract thereunder.

28.           Confidentiality

28.1       Each Party may be given access to Confidential Information of the other Party to perform its obligations under the Agreement. A Party’s Confidential Information shall not be deemed to include information that:

28.1.1            is or becomes publicly known other than through any act or omission of the receiving Party;

28.1.2            was in the other Party’s lawful possession before the disclosure;

28.1.3            is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

28.1.4            is independently developed by the receiving Party, which independent development can be shown by written evidence; or

28.1.5            is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

28.2       Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than carrying out its obligations and exercising its rights in terms of the Agreement.

28.3       Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

29.           PROCESSING OF PERSONAL INFORMATION

29.1       In terms of POPIA, Goldtel Solutions has a legal duty to Process the Customer’s Personal Information in a lawful, legitimate and responsible manner. In order to do so, Goldtel Solutions requires the Customer’s express and informed permission to Process its Personal Information.

29.2       The reason for Goldtel Solutions requiring access to the Customer’s Personal Information is to enable it and its appointed agents to:

29.2.1            verify the identity of the Customer;

29.2.2            perform appropriate checks and verifications of the Customer’s credit history and solvency status;

29.2.3            conclude a contract with the Customer, fulfil its obligations and exercise its rights in terms thereof, including but limited to, the functions of administering, provisioning, billing and reconciliation, maintenance and support required in terms of the contract;

29.2.4            conduct product and service development and improvements;

29.2.5            enable and facilitate fraud detection and prevention;

29.2.6            monitor sales and revenue;

29.2.7            perform market, customer and customer use analyses and to report thereon;

29.2.8            comply with the applicable tax and financial legislation in the Republic of South Africa;

29.2.9            keep records and to report to regulatory authorities in accordance with applicable laws in the Republic of South Africa; and

29.2.10         notify the Customer of Goldtel Solutions’ existing and new services offered, subject to the Customer’s right at any time to opt out of such communication.

29.3       All Personal Information which the Customer provides to Goldtel Solutions will be held and/or stored in a secure manner for the purpose of enabling Goldtel Solutions to deliver the Service(s) to the Customer in accordance with the terms of this Agreement.

29.4       The Customer’s Personal Information will be stored electronically in a Database. For the purpose of improving the overall quality of the Service and support thereof, the aforementioned Database will be accessible to Goldtel Solutions’ appointed agents and its Affiliates.

29.5       Where appropriate or required by law, certain Personal Information may be retained in hard copy. Storage will be secured and audited regularly to ensure the safety and the security of the information stored therein.

29.6       Once the Customer’s Personal Information is no longer required, it will be safely and securely archived for the minimum period permissible by law. Thereafter, all the Customer’s Personal Information will be permanently deleted or destroyed.

29.7       In terms of section 11(3) of POPIA, the Customer has the right to object, within the prescribed manner, to the Processing of its Personal Information by Goldtel Solutions. Section 11(1)(d) to (f) provides for reasonable grounds upon which such an objection may be raised, unless legislation otherwise provides for such Processing. Upon receipt of an objection, Goldtel Solutions shall be prevented from Processing such Personal Information until such time as the objection raised has been resolved and/or withdrawn by the Customer.

29.8       The provisions of POPIA require that the Personal Information and related details supplied by the Customer to Goldtel Solutions must be complete, accurate and up to date. It is the responsibility of the Customer to advise Goldtel Solutions of any changes to its Personal Information, as and when such change arises.

29.9       Subject to a request complying with the procedural requirements stipulated in section 51 Promotion of Access to Information Act 2 of 2000, the Customer has the right to request Goldtel Solutions to provide it with the following information:

29.9.1            the details of any Personal Information held by Goldtel Solutions on the Customer’s behalf; and

29.9.2            the details of how Goldtel Solutions has Processed the Customer’s Personal Information.

30.           CUSTOMER DECLARATION

The Customer declares that:

30.1       all Personal Information supplied to Goldtel Solutions, for the purposes of enabling it to provide the Service(s) to the Customer, and related legal and operational reasons is accurate, up-to-date, and comprehensive;

30.2       it shall immediately advise Goldtel Solutions of any changes to its Personal Information as and when this occurs;

30.3       it has the right to object to the Processing of its Personal Information as detailed in clause 29.7;

30.4       it has a right to access its Personal Information by giving notice to Goldtel Solutions, as detailed in clause 29.9, and to have any errors in such Personal Information rectified;

30.5       it understands that it may, subject to clause 30.6, withdraw the consent given in clause 31, by giving written notice to this effect to Goldtel Solutions,

30.6       it understands that the withdrawal of consent contemplated in clause 30.5 will not affect the lawfulness of the Processing of Personal Information that occurred before such withdrawal. In addition, the following categories of Processing will not be affected:

30.6.1            Processing necessary to carry out actions for the conclusion or performance of this Agreement;

30.6.2            Processing that complies with an obligation imposed upon Goldtel Solutions by law;

30.6.3            Processing that protects a legitimate interest of the Customer;

30.6.4            Processing that is necessary for the proper performance of a public duty by a public body; or

30.6.5            Processing that is necessary for pursuing the legitimate interest of Goldtel Solutions or that of a third party to whom the information is supplied to.

30.7       while Goldtel Solutions has developed and implemented internal policies and procedures, designed to protect the confidentiality of the Customer’s Personal Information, the Customer acknowledges that:

30.7.1            Goldtel Solutions cannot be held responsible for the privacy policies and practices in use by any web or internet sites that may be accessed by the Customer through use of the Service(s); and

30.7.2            Internet communications are inherently vulnerable unless they have been appropriately encrypted. Accordingly, Goldtel Solutions accepts no responsibility or liability of any nature, whatsoever, should the Customer’s Personal Information be intercepted or lost by causes beyond its reasonable control.

31.           INFORMED CONSENT GIVEN BY CUSTOMER

31.1       The Customer freely and voluntarily provides Goldtel Solutions and its Affiliates with permission to Process its Personal Information, in accordance with the provisions of clauses 29 and 30 of these General Terms and of POPIA.

31.2       The Customer confirms that it understands the purposes for which such Personal Information is required and the manner in which it will be Processed, and consents to such Processing thereof.

32.           FORCE MAJEURE / supervening impossibility

32.1       For the purpose of this clause, an “Event of Force Majeure” means any event, the cause of which is beyond a Party’s reasonable control and which affects its ability to perform any or all of its obligations, including but is not limited to, fire, flood, lightning, explosion, power outages, war, acts of terrorism, strike, embargo, governmental requirement, civil or military authority, acts of God, epidemic, pandemic, quarantine, changes to laws or regulations, inability to secure materials or services, industrial disputes and acts or omissions of third party providers of telecommunications services.

32.2       No Party (the “Affected Party”) shall be liable to the other for any losses which are a result of any default or delay in the performance of its obligations under any Service Contract if and to the extent such default or delay is caused, directly or indirectly, by an Event of Force Majeure, provided that:

32.2.1            the Affected Party is without fault in causing such default or delay;

32.2.2            such default or delay could not have been prevented by reasonable precautions; and

32.2.3            such default or delay cannot reasonably be circumvented by the non-performing Party with alternate sources, work around plans or other means.

32.3       The Affected Party’s obligations shall be deemed to have been suspended to the extent and for the duration that such Affected Party is prevented from fulfilling such obligations. As a consequence, the corresponding obligations of the other Party (the “Unaffected Party”) shall also be suspended to the corresponding extent.

32.4       The Affected Party shall promptly notify the Unaffected Party in writing of any Event of Force Majeure (“Force Majeure Notice”). Such Force Majeure Notice shall include an estimation of the approximate period for which the aforesaid suspension will endure. Notwithstanding this, such estimate shall not be binding on the Affected Party.

32.5       The Parties will promptly meet to determine whether an equitable solution can be found. The Parties may by consensus determine that an Event of Force Majeure is of a permanent nature having the effect of extinguishing the contractual obligations.

32.6       Should an Event of Force Majeure Event continue for more than 30 (thirty) days after the issuing of a Force Majeure Notice, then either Party shall be entitled (but not obliged) to terminate the affected Service Contract(s) by giving not less than 30 (thirty) days written notice thereof to the other Party.

32.7       The provisions of this clause 32 shall apply only to Service Contract(s) affected by the Event of Force Majeure and not to any other Service Contract(s).

33.           Amendment of Terms

33.1       Goldtel Solutions shall be entitled to amend any of the provisions of the General Terms and/or Service Terms, including the Charges, at any time by giving the Customer not less than 30 (thirty) days’ notice in accordance with clause 33.3 (the “Notice Period”), subject to any such amendment(s) only coming into effect:

33.1.1            after the expiry of the Initial Period or Renewal Period then current of any Service Contract; or

33.1.2            if the Service Contract runs on a month-to-month basis, then such amendment(s) shall become effective only upon the expiry of the Notice Period.

33.2       Subject to clause 5.4.2, if the Customer objects to any amendment made in terms of clause 33.1, it may terminate any affected Service Contract(s):

33.2.1            with effect from the expiry date of the Initial Period or Renewal Period then current of such Service Contract(s), by giving Notice to Goldtel Solutions prior to such expiry date; or

33.2.2            if the Service Contract(s) run on a month-to-month basis, then the Customer may terminate the Service Contract(s) with immediate effect, provided that Notice of termination is given to Goldtel Solutions within the Notice Period.

33.3       Goldtel Solutions will give notice of any amendments to the Agreement by:

33.3.1            posting the amended General Terms and/or Service Terms on the Website, and

33.3.2            by emailing the Customer at its chosen email address specified on page 1.

33.4       The Customer acknowledges and agrees that it has a duty to keep itself informed of the latest version of the General Terms and Service Terms by accessing the Website on a regular basis.

34.           Termination

34.1       Termination for Material Breach:

If either Party (the “Defaulting Party”) commits a breach of a Service Contract that goes to the root of the Service Contract and fails to remedy such breach within 10 (ten) Business Days of receipt of Notice thereof from the other Party (the “Aggrieved Party”):

34.1.1            the Aggrieved Party shall be entitled, in addition to any other rights and remedies that it may have in terms of the Service Contract, the Agreement or otherwise, to terminate the Service Contract by giving Notice to the Defaulting Party, without prejudice to any claims which the Aggrieved Party may have for damages against the Defaulting Party; and

34.1.2            where any particular Service Contracts are interlinked to such a degree that, in Goldtel Solutions’ reasonable determination, the termination or suspension of the one will result in fulfilment of the other(s) becoming impaired or impossible, Goldtel Solutions may terminate or suspend the other(s).

34.2       Termination for Liquidity Event:

Either Party may terminate the Agreement and all Service Contracts thereunder, immediately on Notice on becoming aware of a Liquidity Event in respect of the other Party.

35.           Effects of Termination

35.1       Any termination of the Agreement (for whatsoever reason) shall not affect any other accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

35.2       Any termination of a Service Contract (for whatsoever reason) shall not affect any other Service Contracts, the Agreement, or the accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination of the Service Contract.

36.           Dispute resolution

36.1       In the event of there being any dispute or difference between the Parties arising out of the Agreement, the said dispute or difference may by consensus between the Parties be submitted to arbitration, in which event the following shall apply:

36.1.1            The arbitration shall be held in Cape Town in accordance with the AFSA rules, which arbitration shall be administered by AFSA.

36.1.2            Should AFSA not be operating or not accept requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by consensus between the Parties to the dispute or failing consensus within 3 (three) Business Days of the demand for arbitration, then any Party to the dispute shall be entitled to forthwith call upon the chairperson of the South African Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.

36.1.3            Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

36.1.4            No consensus to refer a dispute for arbitration shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

36.1.5            Any arbitration in terms of this clause 36 (including any appeal proceedings) shall be conducted in camera, and the Parties shall treat as confidential the details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.

36.2       This clause 36 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.

36.3       The Parties agree that the referral to arbitration in terms of clause 36 shall be deemed as a legal process for the purpose of interrupting prescription in terms of the Prescription Act, 1969.

37.           Address for notices and legal process

37.1       The Parties select as their respective domicilium citandi et executandi (“Domicilium Address”) for the purpose of the:

37.1.1            giving or sending any Notice:

a)    the Customer: its physical and email addresses set out in any Service Contract, or as may have been amended in terms of clause 37.2; and

b)    Goldtel Solutions: 6 Morris Lane, George Central, George, 6530, Republic of South Africa and [email protected]; and

37.1.2            service of legal process commencing an action or application:

a)    the Customer: its physical address set out in any Service Contract; and

b)    Goldtel Solutions: 6 Morris Lane, George Central, George, 6530, Republic of South Africa.

37.2       Either Party may change its Domicilium Address and email address given in clause 37.1, to any other physical address in the Republic of South Africa that is not a post office or poste restante (forwarding address) or any other email address, by giving written Notice to the other Party to that effect. Such change of Domicilium Address or email address will be effective 5 (five) Business Days after receipt of the Notice of the change by the addressee.

37.3       All Notices to be given in terms of the Agreement will be given in writing and will:

37.3.1            be delivered by hand or sent by email;

37.3.2            if delivered by hand during Business Hours, be presumed to have been received on the date of delivery. Any Notice delivered after Business Hours or on a day which is not a Business Day will be presumed to have been received on the following Business Day; and

37.3.3            if sent by email during Business Hours, be presumed to have been received on the date of successful transmission of such email. Any email sent after Business Hours or on a day which is not a Business Day will be presumed to have been received on the following Business Day.

37.4       Notwithstanding the above, any Notice actually received by the Party to whom the Notice is addressed will be deemed to have been properly given and received, notwithstanding that such Notice has not been given in accordance with this clause 37.

38.           EXCLUSION OF WARRANTIES AND REPRESENTATIONS

38.1       Save for those warranties expressly set out in the Agreement, Goldtel Solutions makes no representations or warranties whatsoever, whether express or implied, to the Customer as to the condition of the Products, CPE, Leased Customer Equipment or as to the fitness of the Services for any purpose whatsoever.

38.2       Each of the Parties acknowledges and agrees that, in entering into the Agreement and any Service Contract thereunder, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

39.           Waiver

39.1       A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

39.2       Unless expressly provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights granted by law.

40.           Entire Agreement

40.1       The Agreement, and any documents referred to in it, constitute the full agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

40.2       No addition to or variation, consensual cancellation or novation of this Agreement 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 both Parties either in handwriting or with the use of a Digital Signature.

41.           Severability

41.1       All provisions and the various clauses of the Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.

41.2       Any provision or clause of the Agreement, which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto (as if not written), and the remaining provisions and clauses of the Agreement shall remain of full force and effect.

41.3       The Parties declare that it is their intention that the Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

42.           Assignment

42.1       Neither Party may cede, assign, delegate, encumber, transfer or otherwise dispose of any of its rights or obligations, in whole or in part, under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or unduly delayed.

42.2       Notwithstanding the aforegoing, the Customer agrees that Goldtel Solutions may assign any and all of its rights and obligations hereunder to:

42.2.1            any Affiliate of Goldtel Solutions;

42.2.2            a third party pursuant to any sale or transfer of substantially all of the assets or business of Goldtel Solutions or its Affiliate; or

42.2.3            a third party pursuant to any financing, merger or reorganisation of Goldtel Solutions or its Affiliate.

43.           subcontractors

Goldtel Solutions shall be entitled to sub-contract all or any of its rights or obligations under the Agreement, without notice, provided that the appointment of a subcontractor shall in no way absolve Goldtel Solutions from any non-performance and Goldtel Solutions shall at all times remain fully liable to the Customer for the performance of the Services.

44.           Applicable Law and Jurisdiction

44.1       The Agreement will be governed by and construed under the laws of the Republic of South Africa.

44.2       Subject to clause 36, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape Division, in any dispute arising from or in connection with the Agreement.

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