PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
1. DESCRIPTION OF SERVICES
Web Hosting plans place your site within one or more servers. Resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).
Managed Hosting plans, you get all of the benefits of having your own VPS or Dedicated Server, but we will manage the server for you including setting up your control panel, patching cycles and back-ups.
Managed WordPress Hosting:
Managed WordPress Hosting plans give you a streamlined and optimized experience to build and manage WordPress sites. We handle the basic hosting administrative tasks, including: installing WordPress, automated daily backups, WordPress core updates and server-level caching.
Virtual Private Server (“VPS”):
VPS plans place your site within a server shared with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access. Dedicated IP(s) address is an optional purchase.
Dedicated Server plans reserve an entire server exclusively for your account and usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s performance will not be affected bytraffic and the usage patterns of other customers.
Managed Support plans are monthly subscription plans that provide you with root/administrative access to the service and Plesk or cPanel. We handle core patching, security, monitoring and backups. Additional configurations and installations can be performed for an additional fee. Fully Managed Support:
Fully Managed Support plans are monthly subscription plans that provide you with the option to enable root/administrative access and we will handle core patching, security, monitoring, and backups. Additional Expert Services are included with the subscription. Hosting Premium Support/Expert Services:
Hosting Premium Support/ Expert Services (“Expert Services”) are additional custom support services available for a set fee. These Expert Services can provide assistance if you need an experiences server administrator for complicated tasks, including: optimizing databases, configuring firewalls, or moving content. Hosting Backup:
Hosting backup and restore services saves all your website files to the cloud once per day. These backup and restore services are available with website hosting plans and may be available for an additional fee with our other hosting service plans. KorCom Onsite Equipment: On-site equipment is the sole property of KorCom (Pty) Ltd. No modifications, changes, updates, maintenance or firmware reset or upgrades will be performed by any other technician, person or affiliate other than those authorised by KorCom (Pty) Ltd. We will maintain the router for the duration of the rental. Should the WiFi Router malfunction during the rental period, we will replace it at no cost.
2. ACCOUNT TERMINATION; LIMITATIONS
Migration of Servers:
You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
Termination of Hosting Services:
You acknowledge and agree that upon expiration or termination of your Hosting Services, you must discontinue use of the Hosting Services and relinquish use of the IP addresses and server names assigned to you in connection with Hosting Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Hosting Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, we will delete all such content and we will not be able to provide a copy of such content.
Free Products Credits:
Upon termination of the Hosting Services, all free products provided as part of the Hosting Services will be cancelled or revoked.
Notice Regarding Licensed Images on Migration or Export (where available):
Subject to all other applicable licenses terms and conditions, images available and licensed for use are intended for KorCom (Pty) Ltd hosted customers only and are subject to the terms and conditions of third-party intellectual property rights and licensing restrictions. To the extent you wish to export or migrate your hosted product or service to another service provider (if available as an option), it is solely your responsibility to ensure your continued right to use any images incorporated therein, and you acknowledge and agree that KorCom (Pty) Ltd does not warrant and shall have no responsibility for any claims resulting from your continued use after migration and/or termination (whichever occurs first).
The total amount of usable storage capacity for your particular Hosting Service(s) may differ from the represented capacity, as there is required space for the operating system(s), system file(s), and other supporting file(s).
3. YOUR OBLIGATIONS; REPRESENTATIONS AND WARRANTIES
You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Hosting Services, specifically your purchase of IP addresses, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the Africa Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.
Abusive Activities and Other Threats:
You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or will damage the systems of, or cause a disruption of internet services to, KorCom (Pty) Ltd, our customers, or third-parties. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Service Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Service Agreement. You further acknowledge and agree that KorCom (Pty) Ltd reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in KorCom (Pty) Ltd’s discretion for security purposes.
In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Hosting Services, which includes, without limitation, use of the Hosting Services to: (1) attempt to mislead any person as to the identity, source or origin of any communication; (2) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; or (3) use your server as an “open relay” or for any of the above purposes.
We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.
Storage and Security:
You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The Hosting Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Hosting Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Hosting Services. If access to a third-party hosting website is required in the provision of any Service, you represent and warrant that you are authorized to provide us with access to the third-party hosting account for the purposes of this Service Agreement. You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account.
If you request that we install any Third Party Software (defined below) not provided as part of the Hosting Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity.
4. PROVISIONS SPECIFIC TO WEB, Business AND Managed WORDPRESS HOSTING
Storage and Plan Limits:
All Web Hosting and WordPress Hosting plans, including the unlimited plans, are subject to a limit of no more than 250 000 inodes per account for Linux® hosting accounts or 500 000 files and folders per account for Windows® hosting accounts. The plans are also limited to no more than 1 000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the number of inodes, files and folders, tables or gigabytes (as the case may be), or may be temporarily or permanently suspended, in our sole discretion. All Linux hosting plans are subject to the following limitations: no more than a) 25% of one CPU core; b) 512MB of RAM; c) 100 website connections; d) 100 active processes; e) 1 MB/s disk IO. In the event these limitations are exceeded, your site may slow down or not be served until more resources are added. More resources may be added for additional fees. WordPress Hosting may only be used to host a WordPress website. Only a single WordPress installation is allowed per website. Any WordPress hosting account found to be hosting a non-WordPress website may be issued a network violation warning and will be required to remove the non-WordPress website, or may be temporarily or permanently suspended, in our sole discretion. Additionally, you may be required to purchase an appropriate hosting plan in order to host the non-WordPress site should you wish to continue hosting the non-WordPress site on our network.
You acknowledge and agree that inbound UDP is not support in shared hosting environments.
Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.
Unlimited Disk Space/Bandwidth/Website Plans:
Web Hosting and WordPress Hosting plans are designed to host most personal, small business and organization websites, and thus we offer unlimited bandwidth and some plans offer unlimited disk space and websites. This means that we do not set a limit on the amount of bandwidth, websites or disk space you may use in the operation of your website, provided it complies with this Service Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade to a VPS or Dedicated Server, or we may take action to restrict the resources your website is utilizing.
Website Accelerator Service:
Our Website Accelerator service (“Website Accelerator”) provides a content delivery network (CDN) designed to optimize your website performance through caching and secure distribution of static website content on a network of nationally dispersed servers. You acknowledge and agree that your website content will be stored throughout South Africa. You acknowledge and agree that Website Accelerator may be discontinued or suspended at any time, and your participation is subject to eligibility, as detailed below.
In the event you add WHMCS license to your Business Hosting plan, you agree to be bound by both the WHMCS Terms of Service and End User License Agreement, which are both hereby incorporated by reference.
In order to be eligible for Website Accelerator, you acknowledge and agree that you meet and will keep in compliance with the following criteria: (1) your website must be hosted in Johannesburg, Gauteng; (2) your domain name and hosting must be in the same account; (3) you must have DNS with us; (4) you must not use DNSSEC; (5) you may not have or add SSL certificates; if you add an SSL with CDN activated, the SSL certificate will not function; (6) you must have an Ultimate web hosting plan; and (7) you may not change operating systems.
Your hosting plan may provide you with access to use ManageWP. ManageWP is a website management console which allows its users to administer any number of websites including, but not limited to, management, monitoring, backups, deployment, publishing, and security tools. You acknowledge and agree that your use of ManageWP is subject to the terms of service located here, which are hereby incorporated by reference.
5. PROVISIONS SPECIFIC TO VPS AND DEDICATED HOSTING
If you purchase MS SQL or Managed Backups, you hereby authorize us to log into your server for purposes of installing and configuring the MS SQL or Managed Backups.
You acknowledge and agree you are required to begin using at least ninety percent (90%) of your purchased IP addresses within thirty (30) days of assignment of such IP addresses to you. In the event you do not begin using at least ninety percent (90%) of your assigned IP addresses within thirty (30) days of assignment, you acknowledge and agree that we shall have the right to reclaim any unused IP addresses.
We offer an FTP Backup option for an extra fee. You acknowledge and agree that purchasing FTP Backup may require additional down time to install and maintain. You further acknowledge and agree that in utilizing the FTP Backup option, you shall be subject to a maximum disk space and bandwidth usage according to the plan you purchase. Subject to the terms and conditions of this Service Agreement, we shall use commercially reasonable efforts to provide FTP Backup services on a twenty-four (24) hours per day, seven (7) days per week basis throughout the term of this Service Agreement. You acknowledge and agree that from time-to-time the FTP Backup services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs that we may undertake from time to time; or (3) causes beyond our control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. FTP Back-up may not be available on all hosting plans.
We offer multiple configuration options (“Configuration Add-Ons”) for an extra fee. The specific Configuration Add-Ons available depend on which hosting package you purchase, but may include a control panel, database, external firewall or RAID. You acknowledge and agree that installing a Configuration Add-On will use some of your available storage, may require additional provisioning time, will require us to install Third Party Software (defined below), third party hardware or internally developed custom software to your server, and, in some cases, may limit the versions of Third Party Software available for use with your server. Third Party Software, third party hardware and internally developed customer software will be supported by us. If you wish to cancel RAID, you will be required to cancel your server and purchase a new one.
In the event you add Plesk to your server, you agree to be bound by the Plesk EULA, which is hereby incorporated by reference.
In the event you add cPanel to your server, you agree to be bound by the cPanel EULA, which is hereby incorporated by reference.
cPanel Fair Usage Policy:
This policy is a guide to understand the intended uses of our Services, and to prevent exploitation and abuse of the unlimited features offered in our plans. VPS and dedicated hosting with cPanel offers unlimited number of accounts. Although we do not wish to set a specific limit, as a guideline, a threshold of 100 accounts will be considered normal, reasonable use. We evaluate your usage in comparison to typical levels of usage engaged in by other users. In the event that you exceed this threshold, KorCom (Pty) Ltd may in its sole and absolute discretion, assess additional usage charges for accounts in excess of the threshold or restrict additional accounts from being created. Where possible, KorCom (Pty) Ltd will provide a notice of your usage in excess of the normal use.
6. PROVISIONS SPECIFIC TO SUPPORT PLANS
WordPress (“WP”) Premium Support:
If you elect to use our WP Premium Support Services (either as a subscription or as a one-time Service), we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. All services, both subscription and one time, will be listed as a “Best Effort Service.” Even after taking all reasonable steps, we may not be able to resolve certain issues. We are not responsible for and will not provide assistance with any issue(s) that arise beyond fourteen days of any use of WP Premium Support Services.
We may install a plugin on your hosted WordPress site for the purpose of facilitating your WP Premium Support Services. Its purpose is to facilitate the requested change and maintenance of your WordPress files. The plugin allows us to access, automate updates to core files, other plugins, themes, and other files related to the maintenance of your site.
You acknowledge and agree that you shall not use WP Premium Support Services in a manner that, as determined by us in our sole and absolute discretion:
displays or advertises pornographic, X-rated, sexually explicit, or otherwise tasteless materials, images, products or services (including, but not limited to: massage, dating, escort or prostitution services); or
uses pornographic, X-rated, sexually explicit keywords or images in video names, descriptions or listings.
Further, you are responsible for ensuring that any product posted for sale on your website is in compliance with all applicable laws and regulations where your items can be purchased. We reserve the right and sole discretion to determine whether the sale of any particular item is illegal or otherwise prohibited and cancel your Services.
Managed and Fully Managed Hosting Support Plans:
If you purchase Manages or Fully Managed Hosting Support Plan (“Manages Hosting Plan”) with VPS, we may install a limited number of applications (“Supported Applications”) on your server at your request. A full list of Supported Applications is available from our support team upon request. If you request the installation of a Supported Application, we will install and configure the Supported Application on our server as long as the server has available resources (e.g., storage, RAM, processing power) to support that particular application.
We will then provide the primary (administrator) username and password to you, at which point you will take over the managed and additional configuration of that particular application. We will not be responsible for content, customization, or any other activities associated with the Supported Application, including any repair of the Supported Application should it stop working.
We shall limit technical support of an inoperable Supported Application to restoring said Supported Application to its original state (fresh installation, with no data or customization). The backups offered with these support plans are snapshots taken on a 10-day cycle. Restores are available upon request and may require an additional fee.
Hosting Premium Support/Expert Services:
If we determine that any support request falls outside the scope of your plan, you can request custom support services (“Expert Services”) for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Expert Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Expert Services fees are non-refundable. You must, within fourteen days of any Expert Services, notify us if there are any issues with the Expert Services. We are not responsible for and will not provide assistance with any issue(s) that arise beyond fourteen days of any Expert Services.
If you have your domain name registered with us and the web hosting associated with the domain is provided by a third-party, we may, at your request and in our sole discretion, attempt to assist you to move the web hosting for the domain name to us (“Hosting Migration”). Hosting Migrations are provided as a courtesy service, and we do not make any guarantee regarding the availability, possibility, or time required to complete a Hosting Migration. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make us unable to assist you in the transfer of data from a third-party host.
You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Hosting Migration. If you are satisfied with the data migration, you will need to update the DNS record for the domain name in order to publish the website in its new location. We will not perform website backups or archives in connection with a Hosting Migration, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during the migration process.
You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Hosting Migrations are not available for websites with over 10GB of data or more than 100 000 files.
We may install a plugin on your external WordPress site for the purpose of facilitating your WordPress migration into our own Managed WordPress hosting environment. This plugin will not change anything on your source site. Its purpose is to facilitate the Hosting Migration of your WordPress files. You are welcome to disable the plugin on your source site after the Hosting Migration has been completed.
7. SERVICE UPTIME GUARANTEE
We offer a Service uptime guarantee of 99% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
8. THIRD PARTY SOFTWARE
“Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.
The Hosting Services may be operated in both Linux® and Windows® environments. Each time you commission a server, we will provision the server with the operating system you choose.
We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Hosting Services. You may not use the Third-Party Software outside of the Hosting Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Hosting Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
9. DEFINITIONS AND INTERPRETATION
9.1. In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
9.1.1. “AFSA” means the Arbitration Foundation of Southern Africa;
9.1.2. “Agreement” means this Master Services agreement, including all Annexures hereto, and any Service Confirmation Schedule executed pursuant to the terms of this Agreement;
9.1.3. “Customer” means the end user subscribing to any KorCom service or product;
9.1.4. “Charges” shall mean all charges and/or fees payable by the Customer to KorCom for the Services;
9.1.5. “Confidential Information” means any information or data which by its nature or content is identifiable as confidential and/or proprietary to a Party and/or any third party, or which is provided or disclosed in confidence;
9.1.6. “Customer Equipment” means customer premises equipment (modems, routers, etc), or any networks or network equipment not owned or controlled by KorCom;
9.1.7. “Documentation” means the documentation supplied by KorCom to the Customer;
9.1.8. “Effective date” means the date of signature on which the Customer agrees to these terms and conditions;
9.1.9. “ECA” means the Electronic Communications Act 36 of 2006, as amended from time to time;
9.1.10. “Customer Premises” shall mean the location or locations occupied by the Customer to which the Services are delivered as specified in the SCS;
9.1.11. “Facilities” shall mean any property owned, licensed or leased by KorCom, including points of presence (“POP”), but does not include Customer Equipment, and used to deliver the Services;
9.1.12. “Force Majeure Event” means any circumstances beyond the Parties’ reasonable control including, without limitation, war, national emergency, civil disturbance, theft, fire, flood, explosion, natural disaster, unusually severe weather conditions, prohibitive legislation or regulations and failure of power or utility supplies (including electronic communications);
9.1.13. “Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trademark, or copyright material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property, which specifically includes all copyright, design rights and any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;
9.1.14. “MRC” means monthly recurring cost as set out in the applicable Order Form;
9.1.15. “KorCom (Pty) Ltd” means KorCom (Proprietary) Limited, a company duly registered under the company laws of the Republic of the South Africa with registration number 2012/101820/07 and having its principal place of business at 6 Melherbe Street, Rynfield, Benoni, Gauteng, 1501
9.1.16. “KorCom Equipment” means any KorCom equipment or products, including any Facilities, or any other
equipment or products which are supplied to the Customer by KorCom (for use in conjunction with the Services);
9.1.17. “Service Confirmation Schedule or SCS” means a schedule signed by both Parties in confirmation that the service ordered has been implemented and completed and the necessary tests have been executed, and the customer accepts this as the formal handover document;
9.1.18. “Service request Form” shall mean a request for the Services submitted by Customer to KorCom in a form
prescribed by KorCom;
9.1.19. “Party” means either of the signatories to this Agreement and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns;
9.1.20. “Prime Rate” means the prime rate published by KorCom’s principle bankers, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove;
9.1.21. “Services” means the services provided by KorCom to the Customer as more fully described in the Service
Confirmation Schedule, including the provision of KorCom Equipment and Facilities;
9.1.22. “Service Activation Date” means the service activation date set forth in the Service Confirmation Schedule or the date that the Services actually commence, whichever is the earlier;
9.1.23. “Service Levels” means the specific performance levels applicable to the provision of the Services;
9.1.24. “Service Term” means the time period, including periods of renewal, specified in each Service Confirmation Schedule during which the Services specified therein are to be provided;
9.1.25. “Territory” means Republic of South Africa;
9.1.26. “VAT” means value-added tax, chargeable under the VAT Act of 1991.
9.1.27. “Degradation” means the presence of anomalies or defects in the absence of a fault.
9.1.28. “Degraded Service” means the presence of anomalies or defects that cause a degradation in QoS, but do not result in total failure of the service.
9.1.29. “Incident” means a fault that directly affects the Service levels by substantially or completely reducing them. This excludes any faulty Customer equipment.
9.1.30. ‘MTTRs’ (Mean Time to Respond) means the average time from when the ticket is logged with the KorCom
NOC to the time a KorCom Support Representative attends to the incident or trouble ticket.
9.1.31. “MTRS” (Mean Time to Restore Service) means average time from the first detection or reporting of service interruption to KorCom NOC by the Customer until the time when the service is restored.
9.1.32. “Network Unavailability” means the time where the service is unavailable or degraded to such an extent that it is unusable, measured from the first detection or reporting of service interruption to KorCom NOC by the Customer until the time when the service is restored and excluding any service interruption outside of KorCom’s contracted services supplied to the Reseller. Network Unavailability will not include Scheduled Maintenance/Emergency Maintenance or any unavailability resulting from (a) any local loop provider, (b) Reseller’s applications, equipment or facilities, (c) acts or omissions of Customer or any use of the service authorised by
Reseller, (d) reasons of Force Majeure, or (e) power loss and/or interruptions at the Customer Premises.
9.1.33. “NNI” means Network to Network Interface between distinct MEN operated by one or more carriers.
9.1.34. “Off-Net Services” means those Services provided at any Customer or End User premises that are not on KorCom’s electronic communications network and where an infrastructure build will be required to connect the Customer and/or End User to KorCom’s electronic communications network.
9.1.35. “On-Net Services” means those Services provided at Customer or End User premises that are on KorCom’s
electronic communications network.
9.1.36. “QoS” means quality of service
9.1.37. “SLA” means service level agreement.
9.1.38. “UNI” means the physical interface or port that is the demarcation between the Customer and the service provider (KorCom (Pty) Ltd)
9.1.39. “Uptime” means total number of available minutes in a calendar month.
9.1.40. “AUP” means an Acceptable Use Policy;
9.1.41. “Broadband access service” means the wireless broadband access service provided by KorCom to the user
using Fibre, WIFI, WiMAX or other relevant technologies;
9.2. In this Agreement:
9.2.1. headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation;
9.2.2. a natural person includes a juristic person and vice versa;
9.2.3. the singular includes the plural and vice versa; and
9.2.4. a Party includes a reference to that Party’s successors in title and assigns allowed at law
9.3. Any reference in this Agreement to:
9.3.1. “Business hours” shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
9.3.2. “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
9.3.3. “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
9.3.4. “writing” means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
9.4. The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
9.5. Terms, other than those defined in this agreement, will be given their plain English meaning, and those acronyms and phrases known in the information technology and telecommunications industries will be interpreted in accordance with their general accepted meanings.
9.6. Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
9.7. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
9.8. No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.
9.9 “CPE” means Customer Premises Equipment means radio antenna, masts, brackets, cabling, indoor wireless routers and associated equipment installed the customers premises to allow access to the KorCom network
10 .COMMENCEMENT AND DURATION
10.0 KorCom will carry out a site survey to confirm if delivery of services is available, should services not be possible
this agreement will become null and void with immediate effect.
10.1. This Agreement shall come into effect on the Effective Date from when the SCS was signed and shall continue in force for an indefinite period unless terminated by either Party in accordance with its terms.
10.2. The initial term of each Services Confirmation Schedule shall commence on the Service Activation Date and shall expire on the date set forth in the applicable Service Confirmation Schedule (“Initial Service Term”). After the expiry of the Initial Service Term, the Service Confirmation Schedule shall automatically renew on a
month-to-month basis unless terminated by either Party on thirty (30) days’ written notice.
10.3. Notwithstanding the termination of this Agreement, each Service Confirmation Schedule shall remain in force until termination thereof and shall remain subject to the terms of this Agreement.
10.4. Customers that have chosen the monthly contract term option are bound for an initial 90day period, after which the contract term will reset to a 30day notice period.
10.5. Customers that have chosen the 24 month contract term option are bound for a period of 24months, after which the contract term will reset to a 30day notice period.
10.6 If a customer relocates to a location where KorCom is unable to provide services they will be held liable for the
duration of the contract term selected
11. KorCom (Pty) Ltd OBLIGATIONS
11.1. KorCom shall make the Services available to the Customer as specified in each Service Confirmation Schedule.
11.2. KorCom agree to implement, follow up and support Services, as the Parties deem appropriate under the
circumstances in order to foster a satisfactory business relationship between KorCom and the Customer.
11.3. KorCom shall inform the Customer about new developments and modifications to the Services or required
11.4. In terms of the KorCom Equipment necessary to provide the Service, where required and such equipment will
remain property of KorCom at all times
11.4.1. KorCom shall ensure that the equipment and, in the event where the equipment consist of more than one
component, that each component shall be delivered for installation only at the Customer Location on or before the
estimated delivery date;
11.4.2. KorCom shall ensure that all equipment shall be installed at the Customer location in accordance with the manufacturer’s specifications at KorCom’s standard rates;
11.4.3. KorCom shall be responsible for support services to the Customer as set out in the Service Level Agreement.
12. CUSTOMER ORDER PROCEDURE
12.1.The Customer shall order new Services or change existing Services by submitting a new Service Confirmation Schedule (SCS) to KorCom specifying the new and/or changed Services required.
12.2. KorCom will submit an SCS to the customer acknowledging acceptance of the signed quotation/order and is
thereby obliged to provide the requested services.
12.3. KorCom shall be entitled to request, on receipt of a Service Request Form and prior to the issuing of the SCS in
terms of clause 4.2, information related to the Customer’s creditworthiness. For the avoidance of doubt the Parties agree that KorCom is authorised to conduct all reasonable credit checks and searches.
12.4. Each SCS shall create, subject to the terms and conditions of this Agreement, an individual contractual relationship between the Parties for the provision of the Services for the duration of the applicable Service Term. The provisions of the SCS, once signed by the Customer, shall prevail over the terms and conditions of this Agreement to the extent that there is any conflict between the provisions of the SCS and this Agreement.
13. CONNECTION AND SERVICE COMMENCEMENT
13.1. KorCom shall use best effort to ensure that the Services are made available to the Customer on the Service
Activation Date and shall promptly inform the Customer of any delay in meeting the Service Activation Date.
13.2. Notwithstanding anything in this Agreement, the Services shall only commence on the Service Activation Date and there will be no obligation on KorCom to commence provision of the Services prior to the Service Activation Date.
13.3. The Customer shall notify KorCom of any problems with the Services within forty eight (48) hours of the Service Activation Date, failing which, the Services shall be deemed to be accepted by the Customer. In the event that the Customer notifies KorCom of a problem regarding the Services within the specified time period in this clause 5.3, KorCom shall rectify such problem within a reasonable period of time.
13.4 With regards to a microwave link, reception of the service is dependent on Line of Site and until a signal strength test can be performed reception can in no way be guaranteed.
14. ACCESS TO THE CUSTOMER AND/OR CUSTOMER PREMISES/AND CUSTOMER PREMISES EQUIPMENT
14.1. The Customer shall provide KorCom with reasonable access to the Customer Premises to enable KorCom to exercise its rights and fulfil its obligations under this Agreement, subject only to the Customer’s reasonable security policies.
14.2. The Customer shall remain responsible for providing and maintaining the Customer premises at its own expense. In the event that the Customer fails to maintain the Premises, the Customer shall reimburse KorCom for the any costs incurred to repair or replace any KorCom Equipment and/or Facilities damaged or destroyed as a result of the Customer failure to maintain the premises.
14.3. KorCom restricts access to all “CPE” equipment, any change requests shall be requested via the KorCom Help desk
14.4. If the customer has selected the monthly contract term all CPE equipment remains property of the customers
14.5 If the customer has selected the 24 month contract term all CPE equipment remains property of KorCom
14.6 The customer hereby gives KorCom permission to install equipment and cabling in his premises, furthermore the customer agrees that necessary permission from the relevant bodies and landowners have been obtained and KorCom will not be held liable for any claim, loss, or damage due to this installation or its related activities.
15. ACCEPTABLE USE OF NETWORK AND SERVICES
15.1. The Customer is solely responsible for ensuring that Customer uses the Services lawfully and that the Customer complies with all applicable laws and with KorCom’s Acceptable Use Policy published on www.korcom.co.za
15.2.The Customer indemnifies KorCom and holds it harmless against any claims:
15.2.1. arising from a breach of this clause 7; and/or
15.2.2. by third parties in respect of prohibited or unlawful activities conducted by the Customer or its Customers.
15.3. The Customer shall not take any steps or fail to take any steps which directly or indirectly:
15.3.1. rearrange, disconnect, remove, attempt to repair, or otherwise tamper with the Services, without the prior written consent of KorCom;
15.3.2. damage KorCom’s network (or any networks interconnected to KorCom) or any part thereof;
15.3.3. cause KorCom to breach any of its licence terms or any provision of applicable legislation;
15.3.4. cause the imposition of any lien or encumbrance on the Facilities and/or KorCom Equipment;
15.3.5. constitutes an abuse of the Services (in the reasonable opinion of KorCom).
15.4. To help ensure that all customers have fair and equal use of the service and to protect the integrity of its network, KorCom reserves the right, and will take necessary steps, to prevent improper or excessive usage. The action that KorCom may take includes, but is not limited to:
15.4.1. Shaping throughput, preventing or limiting service through specific ports or communication protocols, irrespective of usage;
15.4.2. Limiting throughput, preventing or limiting service through specific ports or communication protocols in the case of excessive usage; and
15.4.3. A complete termination of service to customers with improper usage.
15.5.This policy applies to and will be enforced for both intended as well as unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) excessive and/or prohibited usage.
15.6. Online activity will be subject to the available bandwidth, data storage and other limitations of the Broadband access service, which KorComs may, from time to time, revise at its own discretion and without prior notice to the customer.
15.7.Users may not engage in any activity that compromises or threatens KorCom’s ability to provide the Broadband access service in a reasonable and efficient manner to all other users.
15.8.Examples of restricted use include, but are not limited to, running systems and servers that generate excessive amount of packets or throughput at a constant rate that will cause degradation of the KorCom network.
15.9. The Broadband access service may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
15.10. Violations of system or network security are prohibited, and may result in criminal and civil liability. KorCom will investigate incidents involving such violations and may involve, or will cooperate with, law enforcement agencies if a criminal violation is suspected.
15.11. Examples of system or network security violations include, without limitation, the following:
15.11.1. Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.
15.11.2. Unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network.
15.11.3. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
15.11.4. Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
15.11.5. Knowingly distribute computer viruses or other malicious computer programs.
15.11.6. The infringement of other’s intellectual property rights or the breaching of any laws or infringement of any third party rights, including without limitation, copyright.
15.12. KorCom reserves the right to implement technical mechanisms which prevent usage patterns in violation of this AUP. KorCom further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
15.13. Nothing contained in this policy shall be construed to limit KorCom’s rights or remedies in any way with respect to any of the foregoing activities, and KorCom reserves the right to take any actions that it may deem appropriate with respect to such activities, including without limitation: investigating suspected violations of this AUP, taking action to Recover the costs and expenses of identifying offenders and terminating their access to and use of the Broadband access service, and levying cancellation charges to cover KorCom’s costs in the event of termination of access to the Broadband access service. In addition, KorCom reserves all available rights and remedies with respect to such activities at law or in equity.
15.14. Should you cancel your connection less than 12 months from activation, or your account falls into arrears, you will be charged a cancellation fee of R2000
15.15. This AUP may be clarified or modified periodically and KorCom reserves the right to modify this policy at any time, which changes shall become effective as soon as they are posted to the KorCom website.
16. FAIR USAGE AND NETWORK POLICY
16.1 The user acknowledges that KorCom is unable to exercise control over the data passing over the infrastructure and the Internet, including but not limited to any websites, electronic mail transmissions, news groups or other material created or accessible over its infrastructure. Therefore, KorCom is not responsible for data transmitted over its infrastructure.
16.2 KorCom infrastructure may be used to link into other networks worldwide and the user agrees to conform to the acceptable use policies of these networks.
16.3 Users of the KorCom network include not only the KorCom customers, but in the case of resellers of the KorCom services, the customers of the resellers too. Resellers of KorCom services are responsible for the activities of their customers.
16.4 The user may obtain and download any materials marked as available for download off the Internet, but is not permitted to use their Internet access to distribute any copyrighted materials unless the owner of the materials grants permission for such distribution to the user.
16.5 The user is prohibited from obtaining, disseminating or facilitating over KorCom network any unlawful materials, including but not limited to:
16.5.1 Copying or dealing in intellectual property without authorisation
16.5.2 Child pornography, and/or
16.5.3 Any unlawful hate-speech materials
16.6 To help ensure that all customers have fair and equal use of the network to all subscribers.
16.7 Online activity will be subject to the available bandwidth, data storage and other limitations of the service provided, which KorCom may, from time to time, revise at its own discretion and without prior notice to the customer.
16.8 All services are uncapped and no maximum amount of download or upload is applicable.
16.9 This service is a best effort service with no maximum or minimum speed guarantee.
16.10 Quality of Service is active on the network and certain protocols (p2p, file sharing) will take lower preference and KorCom reserves the right to limit the customers connection when it sees fit.
16.11 The sharing of KorCom connection between persons outside of a household or business and the sharing of usernames is prohibited
16.12 Shaped accounts are subject to limitation of all peer to peer traffic such as torrents, kazaa etc during peak hours and as required by KorCom
16.13 Unshaped & Business accounts are not subject to shaping but are subject to QOS where required.
16.14 Due to the nature of radio signals various factors man-madeand natural can degrade or affect the performance of your signal. Whilst all measures are taken to provide the best possible signal KorCom can in no way be held responsible for degraded performance of your connection due to these or other factors.
17. SYSTEM AND NETWORK SECURITY
17.1 All references to systems and networks under this section include the Internet (and all those systems and/or networks to which user are granted access through KorCom and include but is not limited to the infrastructure of KorCom itself.
17.2 The user may not circumvent user authentication or security of any host, device, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, host, device, or network (referred to as “denial of service attacks”). The host, device, network or account shall also not be used for any illegal purpose, including phishing.
17.3 Violations of system or network security by the user are prohibited, and may result in civil or criminal liability. KorCom will investigate incidents involving such violations and will involve and co operate with law enforcement officials if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
17.3.1 Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of KorCom
17.3.2 Unauthorised monitoring of data or traffic on the network or systems without express authorisation of KorCom
17.3.3 Interference with service to any user, device, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks
17.3.4 Forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting
The User acknowledges that KorCom is lawfully required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication- related Information Act 70 of 2003 (“the Act”). Any interception of communications shall be strictly in accordance with the requirements of the Act, as and when required under the Act.
Upon receipt of a complaint, or having become aware of an incident, KorCom reserves the right to:
19.1.1 Inform the user’s network administrator of the incident and require the network administrator or network owner to deal with the incident according to this Acceptable Fair Use Policy.
19.1.2 In the case of individual users suspend the user’s account and withdraw the user’s network access privileges completely.
19.1.3 Charge the offending parties for administrative costs as well as for machine and human time lost due to the incident
19.1.4 In severe cases suspend access of the user’s entire network until abuse can be prevented by appropriate means
19.1.5 Take such action as may be necessary to protect the integrity of the system, including, but not being limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
19.1.6 Implement appropriate technical mechanisms in order to prevent usage patterns that violate this AUP
19.1.7 Share information concerning the incident with other Internet access providers, or publish the information, and/or make available the users’ details to law enforcement agencies.
19.2 KorCom may take any one or more of the steps listed above, insofar as KorCom deems them necessary in its absolute and sole discretion, against the offending party.
20. LAWS AND LEGISLATION
20.1 KorCom infrastructure may be used only for lawful purposes. Users may not violate any applicable laws or regulations of South Africa within the territory of South Africa. Should the user reside outside of South Africa, the laws of the country in which the user resides shall apply.
20.2 Transmission, distribution or storage of any material on or through the infrastructure in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
20.3 The User undertakes to use KorCom services in accordance with any restrictions imposed under the following legislation:
20.3.1 Electronic Communications and Transactions Act 25 of
20.3.2 Electronic Communications Act 36 of 2005
20.3.3 Films and Publications Act 65 of 1996 (as amended)
20.3.4 Regulation of Interception and Provision of Communication-related Information Act 70 of 2003
21. LEGAL RIGHTS
21.1 Nothing contained in this policy shall be construed to limit KorCom rights or remedies in any way with respect to any of the aforementioned activities, and KorCom reserves the right to take any action that it may deem appropriate with respect to such activities, including without limitation:
21.1.1 Investigating suspected violations of this FUP
21.1.2 Taking action to recover costs and expenses incurred in identifying and resolving abuse
21.1.3 Terminating users’ access to and use of the KorCom service
21.1.4 Levying cancellation charges to cover KorCom costs in the event of termination of the KorCom service.
21.2 In addition, KorCom reserves all available rights and remedies with respect to such activities at law or in equity.
22.1 This policy forms part of KorCom standard terms and conditions of service
22.2 The customer acknowledges that any equipment provided to client by KorCom remains the sole property of KorCom at all times.
22.3 KorCom (Pty) Ltd will be entitled to assume that the Fibre Line provisioned to a Client is in good working order until such time as the Client advises KorCom (Pty) Ltd support or technical staff of any problems or service breaks.
22.4 Any faults or service interruption should be reported via one of the channels available on the KorCom (Pty) Ltd website.
22.5 The last mile provider will attend to faults reported by the Client during office hours and the relevant party will apply its reasonable endeavours to have the Fibre service restored in the shortest possible time.
22.6 IF THE LAST-MILE PROVIDER DETERMINES THAT THE FAULT REPORTED BY THE CLIENT WAS CAUSED BY THE CLIENT, THE CLIENT SHALL BE LIABLE FOR PAYMENT OF THE RELEVANT CALL-OUT CHARGE AS DETERMINED BY THE LAST-MILE PROVIDER FROM TIME TO TIME.
22.6 The customer accepts all costs and repairs to any property of KorCom under the rental of the client.
22.7 All hardware provided by last-mile providers will remain property of said last-mile provider into perpetuity.
22.8 Should a user cancel their service and not migrate to another ISP on the same last-mile provider, they will be required to return the fibre modem of the last-mile provider as the hardware is provider specific.
22.9 Uncapped Fibre data is not throttled or shaped. However, there may be circumstances beyond the control of KorCom (Pty) Ltd that may vary performance, based on demand, service breakdowns or technical outages. During this time, some services may be affected and not perform optimally. KorCom (Pty) Ltd will endeavour to improve or optimise services as much as possible during such periods as as part of it’s duty to deliver the best product experience. This will not constitute shaping or throttling.
22.10 Use of the Services is subject to ID verification and / or proof of address, required by RICA (the Regulation of Interception of Communication Act of 2009). Clients are required to email, fax or upload the relevant documents;
22.10.1 a full coloured, clear, legible copy of their valid Identity Document or Driver’s License.
22.10.2 Non-South African citizens may submit a copy of their valid Passport or International Driver’s License.
22.10.3 Verification documents must contain photo identification.
22.10.4 Failure to produce ID verification for an account will result in the product not being activated, regardless of any pro-rata amounts billed.
22.10.5 Should the Client cancel all current valid KorCom (Pty) Ltd Services, ID verification will be required to sign up for new Services. ID verification will not be requested as long as verified KorCom (Pty) Ltd Services remain active.
22.11 All hardware provided by KorCom (Pty) Ltd will remain property of KorCom (Pty) Ltd into perpetuity.
23. SUSPENSION OF SERVICES
23.1. KorCom may lawfully suspend, withdraw all or part of any Service at any time until further notice to the Customer if, in KorCom’s reasonable discretion:
23.1.1. the continued provision of the Services will cause KorCom to breach an applicable law or be in contravention of its Licenses;
23.1.2. the Customer is in breach of or otherwise is not complying with any of the provisions of this Agreement; and
23.1.3. Any overdue tax invoice for charges billed by KorCom to the Customer remains unpaid for longer than 7 (seven) days.
23.2 The exercise of KorCom’s right to suspend the Services under this clause 15 is without prejudice to any other remedy available to KorCom under this Agreement and does not constitute a waiver of KorCom’s right to subsequently terminate the Agreement.
23.3. Where KorCom has suspended the Services in terms of clause 15.1, KorCom may:
23.3.1. refuse to reconnect the Services unless precluded by any law or order of court; and
23.3.2. if it agrees to reconnect the Services, require the Customer to pay a re-connection fee in advance as a pre-condition to making the Services available again.
24. FEES AND CHARGES
24.1. All payments payable by the Customer in terms of each SCS shall be paid in full without deduction or demand, free of exchange, to KorCom, and the Customer shall not be entitled to withhold any part of such payments or to make anything but the full payments due to KorCom in terms of each SCS.
24.2. KorCom shall be entitled to adjust the fees and Charges as a result of any regulatory, economical, or government imposed factors that impact on such fees and Charges by means of 30days notice
24.3. The rates payable by the Customer to KorCom as set out in each SCS hereof shall escalate annually on the annual anniversary date of the Service Commencement Date of the SCS to such rates as may be agreed between the Parties. Failing mutual agreement, then the rates payable for the following twelve month period shall escalate by a maximum factor of the increase in the CPI during the immediately preceding twelve months plus 3% (three per centum). 18.1. The SCS shall set forth the service levels specifically applicable to the Services ordered by the Customer.
24.4. Any charges incurred by KorCom in the provision of the Service/s will be increased when increases are applied by the suppliers of these services and products to KorCom, notification will be provided in writing within 14 days of KorCom being made aware of any pending increases. 18.2.2. Response Time – this is the time taken for KORCOM to respond (acknowledge) that there is a fault on the Network. KORCOM will inform the Customer of the Network failure and give estimated times for the Network to be restored.
25.3.1. Invoices rendered by KorCom in respect of the Services shall be rendered monthly in advance, except for Charges that are dependent upon usage of the Services, which shall be billed in arrears. Billing for partial months shall be pro-rated based on a calendar month.
25.3.2. All invoices are due payable within seven (7) days after the date of invoice notice of such scheduled maintenance;
25.3.3 If payment is not received by KorCom for any reason whatsoever by the due date for payment, then the Customer shall be liable to pay to KorCom (and without prejudice to any other right or remedy of KorCom)
25.3.4. Any resulting bank or other charges incurred by KorCom consequent thereupon; and
25.3.5. Any associated reasonable administrative charges including interest that has accrued on the unpaid amount up until the amount (as provided for in clause 17.1 has been received by KorCom.
25.3.6. If any amount is overdue, the Customer shall pay interest on the overdue amount at prime rate plus 2% (two percent), such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).
25.3.7. All Charges for the Services are exclusive of applicable taxes. Except for taxes based on KorCom. Net income, the Customer will be responsible for all applicable taxes. All VAT is payable upon receipt of a valid VAT invoice.
25.3.8. In the event of any dispute arising as to the amount or calculation of any fee or Charge which is payable by Customer; the dispute shall first be referred to the Financial Directors of the Parties. Should the dispute not be resolved within 7 working days, then the matter shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on KorCom and Customer. The Party at fault, as determined by the independent auditors, shall make payment towards the expenses for the engagement of the independent auditors’ services.
25.3.9 Payments shall be made by means of a monthly debit order on the 1 st of each month unless agreed in writing by KorCom management.
26. SERVICE LEVELS AND MAINTENANCE
26.1. The SCS shall set forth the service levels specifically applicable to the Services ordered by the Customer.
26.2. KORCOM is committed to providing a reliable, high quality network to support its services offered. Accordingly, KORCOM offers the following guarantees:
26.2.1. Network Response Times Guarantee – 24 hours response
26.2.2. Response Time – this is the time taken for KORCOM to respond (acknowledge) that there is a fault on the Network. KORCOM will inform the Customer of the Network failure and give estimated times for the Network to be restored.
26.3. KorCom shall conduct scheduled maintenance in respect of the Services in such a manner that it does not cause unreasonable outage or interruption of the Services. In the event that scheduled maintenance requires a Service interruption or outage, KorCom shall exercise commercially reasonable efforts to:
26.3.1. provide Customer with seven (7) days’ prior written notice of such scheduled maintenance;
26.3.2. work with Customer in good faith to attempt to minimize any disruption in Customer’s services that may be caused by such scheduled maintenance; and
26.3.3. perform such scheduled maintenance during the non- peak hours of 12:00 a.m. (midnight) until 6:00 a.m. local time where reasonably possible.
26.4. The KORCOM Technical Service Desk will be available 24 hours per day, 365 days per year to attend to all e- mail and web-based support queries. The Technical Service Desk can be contacted telephonically on 010 1100 545 and its hours of operation are 08h00 to 20h00 weekdays, 08h00 – 14h00 weekends and holidays. Additional information can be sent to the Technical Service Desk via e mail at [email protected]. If for any reason the Technical Service Desk cannot be reached telephonically, the Customer shall follow the agreed escalation procedure.
26.5. The Customer shall report all faults to KorCom in by calling 010 1100 545, or emailing [email protected] or logging a fault via the website www.korcom.co.za
26.6. All requests to the KorCom Support Desk ([email protected]) will be answered within an estimated 8 hours.
26.7. Where assistance is required by either Party, this shall be requested through the KorCom Technical Service Desk
26.8. A copy of all contact telephone numbers and escalation matrix shall be made available on the KorCom website and will be updated as and when changes occur.
26.9. From time to time testing and routine maintenance will be required on the network infrastructure and will normally be performed during off-peak times (00:00 – 06:00).
26.10. Where testing or maintenance is required during the times stipulated in above, a standard service interruption notification will be communicated to the Customer at least 7 (seven) calendar days prior, where possible.
26.11. KorCom shall monitor the infrastructure platform and notify the Customer in the event of disruptions that will affect the delivery of service.
26.12. The Customer shall supply KorCom with the following details when logging a fault
-reference number; from the help-desk
-start time of the fault;
-symptoms and nature of the downtime;
-first line support performed by the Reseller
26.13. Scheduled maintenance of the KorCom network (or portion thereof) will not normally result in Service interruption or outage. However, in the event scheduled maintenance should require a Service interruption or outage, KorCom will exercise commercially reasonable efforts to (a) provide Customer with seven (7) days’ prior written notice of such scheduled maintenance, (b) work with Customer in good faith to attempt to minimise any disruption to Reseller’s services that may be caused by such scheduled maintenance, and (c) to perform such schedule maintenance during the non-peak hours of 0:00 (midnight) until 06:00 local time. KorCom will arrange for the necessary repairs arising in terms of this Agreement. KorCom will carry the costs for faults arising in/from KorCom’s equipment.
27. CHANGE MANAGEMENT PROCEDURE
27.1. Notification of all planned changes or maintenance schedules will be emailed to the Reseller.
27.2. KorCom NOC shall try and inform the Customer of any change or scheduled maintenance that will affect service at least seven (7) calendar days before the planned implementation date.
27.3. If the Customer requires that the planned changes or maintenance to be stalled, postponed or rescheduled because of business-affecting reasons, these reasons must be reported to the KorCom NOC within 24 hours of receiving notification from KorCom.
27.4. KorCom Technical Service Desk will inform and consult with the Customer regarding any emergency change or maintenance to correct a fault that will affect service, at least one (1) hour before the implementation, if possible.
27.5. If and to the extent an emergency change is required and, after all attempts to inform the appropriate Customer representative as the Customer escalation matrix failed, KorCom may make such a change provided, and shall as soon as reasonably practicable after making such a change and again upon termination of the emergency concerned, provide the Customer representative with full written details of such change and the reason or reasons therefore.
27.6. All changes are managed by the Technical Service Desk. The start of the change is logged; the change is implemented by trained technical personnel and overseen by a KorCom supervisor. The end of the change is logged and the success thereof logged and recorded.
28.1. Termination for Convenience:
28.1.1. Either Party shall be entitled to terminate this Agreement by providing the other Party with 30 (thirty) days’ prior written notice to that effect.
28.1.2. Termination in accordance with clause 28.1.1 above shall not affect the Service Term of any SCS, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the Service Term of the SCS.
28.1.3. Notwithstanding the Service Term set out in the SCS, the Customer shall be entitled in its sole discretion and without cause, to the terminate one or more SCS’s (the “Terminating Services”) by giving KorCom 30 (thirty) days’ prior written notice, which termination shall be subject to the early termination charges set out in clause 29 below.
28.2. Termination for cause:
28.2.1. In the event that there is a breach by either Party, the non-defaulting Party shall be entitled to provide the defaulting Party with 30 (thirty) days’ written notice to remedy such breach, including but not limited to breaches set out below:
18.104.22.168. a meeting of that Party convened to consider or pass a resolution, or a declaration is made in respect of that Party, a petition is presented in respect of that Party, legal proceedings are commenced by or in respect of that Party or any other step is taken, for the provisional or final winding-up, sequestration, judicial management, curatorship or dissolution of that Party’s assets, business, undertaking or estate or with a view to a composition, assignment or arrangement with such Party’s creditors;
22.214.171.124. the Party being or becoming unable (or admitting its inability) to pay its debts generally as they fall due or being (or admitting to being) otherwise insolvent or stopping, suspending or threatening to stop or suspend payment of all or a material part of its debts or making a general assignment or arrangement or composition with, or for the benefit of, its creditors (or any class of them);
126.96.36.199. any business rescue proceedings under the Companies Act, 2008, being commenced against it or a resolution being proposed to place the Party under supervision under the Companies Act, 2008, at any duly convened meeting of the shareholders or board of directors of the Party;
188.8.131.52. any liquidator, curator, judicial manager, business rescue practitioner or similar officer being appointed in respect of the Party or any part of its assets, undertaking, business or estate or such entity (or any organ of that person or entity) requests such appointment;
184.108.40.206. the Party committing any act which, if it were a natural person, would be an act of insolvency as contemplated in the Insolvency Act.
220.127.116.11. The non-defaulting Party shall be entitled to terminate this Agreement, where the defaulting Party fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this Agreement after having been required to do so within a period of 30 (thirty) days.
29. EARLY TERMINATION COSTS
29.1. The termination fee shall be calculated on the outstanding fees and Charges for each of the terminating SCS (”Terminating Services”) as at the termination date and will be determined as follows:
29.1.1. In the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, the Customer shall be liable for the lower of the actual costs incurred by KorCom in implementing the Service or the “NRC”, plus 3 (three) months of the MRC;
29.1.2. In the event that the Terminating Services are terminated subsequent to the Service Commencement Date a total of 100% of the monthly MRC for the remainder of the Service Term of the Terminating Services;
29.2. The Parties acknowledge that the early termination charges set forth in clauses 21.2 are a genuine estimate of the actual damages that KorCom will suffer and are not construed as penalties for the purposes of this Agreement.
30. EFFECTS OF TERMINATION
30.1. Termination of this Agreement and/or an SCS in whole or in part, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
30.2.On termination of this Agreement and/or a SCS:
30.2.1. all benefits (including rights of use and licences) conferred upon the Customer in terms of this Agreement and/or a SCS, shall immediately cease and the Customer shall have no claim, whatsoever, against LKorCom. for the loss of such benefits;
30.2.2. the Customer shall return all Facilities and/or KorCom equipment located on the Customer Premises and/or Customer premises or facilitate KorCom’s removal of such Facilities and/or KorCom. Equipment; and
30.2.3. the Customer shall promptly return to KorCom or otherwise dispose of as KorCom may instruct all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Customer and relating to KorCom’s business (other than correspondence which has passed between the Parties) which the Customer may have in its possession or under its control. The Customer shall also return to KorCom its Confidential Information.
30.3. The termination of this Agreement and/or an SCS shall not of itself give rise to any liability on the part of KorCom to pay any compensation to the Customer, including but not limited to, for loss of profits or goodwill.
30.4. KorCom shall be entitled to cancel all orders for Services placed by the Customer prior to the termination date, whether or not such orders have been accepted by KorCom, without incurring any liability of any nature to the Customer.
31. INTELLECTUAL PROPERTY RIGHTS
31.1. Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
31.2. Each party indemnifies the other party against all crimes, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement of any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the infringement by a Party of the intellectual Property Rights of the other Party.
31.3. KorCom retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services. In particular, KorComs retains all right, title and interest in all Intellectual Property rights in and to work products, deliverables, documentation, reports, designs, formulae, methodologies, software, proposals, specifications, feasibilityreports and systems, whether used to provide or as are developed or created as part of the Services.
31.4. KorCom shall retain all right, title and interest in all Intellectual Property developed or generated pursuant to and as part of the performance of the Services provided under this Agreement.
The Customer is aware of the KorCom interest in the equipment installed at their premises.
33.1. Each Party hereby warrants unto and in favour of the other Party:
33.1.1. it has full power, authority and legal right to execute this Agreement, to assume the obligations contained in this Agreement, and further to perform and observe the terms and provisions hereof;
33.1.2. to the best of the Party’s knowledge and belief, all facts and circumstances material to this transaction, or which would be material or would be reasonably likely to be material and which may affect the willingness of the Parties to enter into this Agreement are known to the Party, have been disclosed by the Party to the other Party;
33.1.3. as at the Signature Date, no legal proceedings of any kind or administrative proceedings in terms of any law, which shall prevent either Party from fulfilling its obligations in terms of this Agreement, have been instituted against such Party;
33.1.4. at all times during the currency of this Agreement neither Party has any obligations/duties to third parties which, if discharged, shall prevent the Party from fulfilling its obligations in terms of this Agreement; and
33.1.5. all necessary action has been taken to authorise the execution and performance of this Agreement and the execution and performance of this Agreement will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a Party or by which it or its property may be bound.
33.2. KorCom does not make any representations or warranties in respect of the quality or functionality of the KorCom Equipment. The Customer shall only be entitled to rely on the warranties and indemnities provided by the original equipment manufacturer in respect of the KorCom Equipment, which warranties and indemnities shall be enforced directly against the original equipment manufacturer and not against KorCom.
The Customer hereby indemnifies and holds KorCom harmless against all loss, damage, costs and/or expenses which KorCom may suffer or incur and any and all claims which may be brought against KorCom by any third party in respect of any loss, liability, damage, costs and/or expenses of any nature whatsoever as a consequence of or which may arise from or is attributable to the engagement of the Customer, the provision of the Services by the Customer or any acts or omissions on the part of the Customer.
35. LIMITATION OF LIABILITY
35.1. Neither Party shall be liable to the other Party for any indirect or consequential loss or damage (including any loss of profit/contract/opportunity) which may be suffered by the other Party under or in connection with this Agreement.
35.2. The total liability of either Party under or in connection with this Agreement shall, to the extent permitted by Law, not exceed the aggregate value of the Services that have been carried out under this Agreement at the time at which any claim is made.
35.3. Where the insurance cover of any insurance policy that is procured by either Party under this Agreement, which is capable of being called upon to cover any liability/damage, exceeds the aggregate cap of liability, such aggregate cap of liability shall not compromise the insurance cover that can be claimed by either Party to cover the liability/damage in question. Accordingly, the imposition of such aggregate cap of liability shall not be construed as a stipulatio alteri in favour of any insurer who would otherwise be liable to make payment from the insurance cover to cover a claim that is in excess to such aggregate cap of liability under such insurance policy.
35.4. This Clause 35 shall not limit liability of either Party in any case of fraud, deliberate default or reckless misconduct by either Party.
36. FORCE MAJEURE
36.1. A force majeure event shall occur when either Party is prevented or restricted directly or indirectly from performing all or any of that Party’s obligations in terms of this Agreement by reason of Force Majeure, which shall constitute a “Force Majeure Event” for the purposes hereof.
36.2. The exclusive remedy of a Party affected by a Force Majeure Event (“the Affected Party”) constitutes that:
36.2.1. it shall be relieved of performance of its obligations in terms of this Agreement during the period that such event and its consequences continue (but only to the extent it is so delayed or prevented from performing partially or at all by the Force Majeure Event), and, provided that notice has been given in terms of Clause36.1, shall not be liable for any delay or failure in the performance of any of its obligations in terms of this Agreement or losses or damages whether general, special or consequential which the other Party (“the Unaffected Party”) may suffer due to or resulting from any such delay or failure; or
36.2.2. The Affected Party shall give written notice to the Unaffected Party at the earliest possible opportunity in writing of the occurrence of the event constituting the Force Majeure Event, together with details thereof and a good faith estimate of the period of time for which it shall endure;
36.2.3. At all times whilst a Force Majeure Event continues, the Parties shall meet at regular intervals to discuss and investigate, and if possible, to implement other practical ways and means to overcome the consequences of such a Force Majeure Event, with the objective of achieving the import and intent of this Agreement without unreasonable delay.
36.3. The Affected Party shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event on its ability to perform under this Agreement and to terminate the circumstances giving rise to a Force Majeure Event as soon as reasonably possible and upon termination of the event giving rise thereto, shall forthwith give written notice thereof to the Unaffected Party.
37. DISPUTE RESOLUTION
37.1. In the event of there being any dispute or difference between the Parties arising out of this Agreement and/or any SCS, the said dispute or difference shall on written demand of either party be submitted to arbitration in Sandton in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
37.2. Nothing herein contained 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.
37.3. The Parties agree that the written demand by KorCom to the dispute in terms of clause that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
38. NOTICES AND DOMICILIA
38.1. The Customer selects as its domicilia citandi et executandi the physical addresses, fax numbers and email addresses as specified in the Service Request Form for the purposes of giving or sending any notice provided for or required under this Agreement.
38.2. KorCom selects as its domicilia citandi et executandi the physical addresses, and email addresses as specified below for the purposes of giving or sending any notice provided for or required under this Agreement.
Provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or telefax number by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
38.3. All notices to be given in terms of this Agreement will be given in writing and will:
38.3.1. be delivered by hand or sent by telefax or email;
38.3.2. 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
38.3.3. if sent by telefax or email during business hours, be presumed to have been received on the date of successful transmission of the telefax or email. Any telefax or 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.
38.4. Notwithstanding the above, any notice given in writing, and 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 32.
39. APPLICABLE LAW AND JURISDICTION
39.1. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
39.2. The Parties hereby consent and submit to the non- exclusive jurisdiction of the South Gauteng High Court, Johannesburg in any dispute arising from or in connection with this Agreement.
40.1. This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no warranty, undertaking, representation, term or condition relating to the subject matter of this Agreement (not incorporated in this Agreement) shall be binding on either of the Parties. This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
40.2. No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
40.3. No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
40.4. Any provision or clause of this Agreement which is or becomes unenforceable for any other reason whatsoever, shall (only and only to the extent that it is so unenforceable) be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
40.5. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
40.6. Neither this Agreement nor any rights or obligations hereunder may be ceded, delegated or assigned by the Customer without the prior written consent of KorCom.
40.7. KorCom will recover any once off charges waivered if the service is cancelled within 12 months.
40.8. All services are considered “best effort” services [best-effort service refers to an Internet delivery service where the provider does not give any guarantees on when the data will be delivered or the quality of that data when it is delivered.].
41. Applicapble Documents and Agreements
41.1 The provision of KorCom (Pty) Ltd’s Fibre Services are subject to Terms and Conditions.
41.2 The following legal documents accordingly apply to the provision of KorCom (Pty) Ltd Fibre Services and are binding on any subscriber to such service:
41.3 KorCom (Pty) Ltd’s Acceptable Use Policy (AUP), available on the KorCom (Pty) Ltd Website;
41.4 Each last mile provider’s Standard Terms and Conditions for the provision of Services.
KorCom (Pty) Ltd reserves the right to refuse service to anyone. YOU may only use KorCom (Pty) Ltd server for lawful purposes and our services may not be used for illegal purposes or in support of illegal activities. We reserve the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing. If anything is not legal in South Africa, it is not permitted to reside on our servers. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes but not limiting material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of non-acceptable content or links: Pirated Warez, OGG, AVI, MPEG, ISO, Hacker programs or archives, Copyrighted Digital Movie Copies (DIVX) and Unlicensed MP3. The designation of any materials as such described above is left entirely to the discretion of KorCom (Pty) Ltd management. If illegal content or usage is found, the account will be suspended and/or terminated. YOU agree that KorCom (Pty) Ltd may disclose any and all YOUR information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification. Regardless of the place of signing this agreement, YOU agree that for purposes of venue this contract is entered in Johannesburg, Gauteng, and any dispute will be litigated or arbitrated in Johannesburg, Gauteng. Defendants further waive all objections to venue and acknowledge that venue in any such litigation will be held in Gauteng courts.
KorCom (Pty) Ltd will not be responsible for any damages your business may suffer. KorCom (Pty) Ltd makes no warranties of any kind, expressed or implied for services we provide. KorCom (Pty) Ltd disclaims any warranty or merchantability or fitness for a particular purpose. this includes loss of data resulting from delays, non-deliveries,wrong delivery, and any and all service interruptions caused by KorCom (Pty) Ltd and its employees. KorCom (Pty) Ltd reserves the right to revise its policies at any time. all sub-networks, resellers and dedicated servers of KorCom (Pty) Ltd must adhere to the above policies. failure to follow any term or condition will be grounds for immediate account cancellation.
Fair Usage Policy
This policy forms part of KorCom’s terms and conditions of providing the network service. It defines the accepted behaviour of users on the KorCom’s (KorCom) network.
It applies to users of the KorCom network, KorCom customers, as well as KorCom resellers and their customers. Resellers are responsible for the activities of their customers.
As a user of the KorCom network, you agree to follow this policy. We ask all users to follow this policy so we can:
Maintain the integrity and quality of our services
Protect our customers and infrastructure from abuse
Adhere to laws and regulations
Be a responsible service provider in the global Internet community
We can’t control the data passing over the KorCom network infrastructure and the Internet. This includes data in websites, email, newsgroups and any other material created or accessible over the KorCom infrastructure. We therefore can’t be responsible for it.
Linking to other networks
You may use KorCom infrastructure to link into other networks worldwide. If you do, you agree to follow the acceptable use policies of these networks.
You may obtain and download any materials marked as available for download off the Internet. However, we do ask you to follow the rules below once you’ve done so.
You may not use your Internet access to distribute any copyrighted materials without the permission of the copyright holder.
Restricted items on the KorCom network
You may not obtain, distribute or facilitate the following over KorCom infrastructure:
You also may not copy or deal in intellectual property without the proper authorization.
Excessive use of the KorCom network
To ensure everyone has fair and equal use of the network service, and to protect the integrity of the network, we can take steps to prevent improper or excessive use.
For example, we may:
Prevent or limit service through specific ports or communication protocols
End the service (in extreme cases of network abuse)
This policy will be enforced when the network is affected by both intentional use (user behaviour) and unintentional events (e.g., viruses, worms, malicious code, or otherwise unknown causes).
Online activity depends on available resources, which we can change. It depends on bandwidth, data storage and other limitations of the service provided. You agree that we may change these from time to time without giving you notice that we are doing so.
Terms and Conditions (Network)
Definitions and Interpretation
In this Agreement, the words hereunder will have the meanings assigned to them below:-
“Agreement” means these Standard Terms and Conditions and any Application Form, Schedules, Annexures and attachments hereto
“Application Form” means the application form to which these Terms and Conditions are attached
“Contract Value” means the total sum of the Costs in respect of the Service/s being provided to the Customer by KorCom in terms of this Agreement
“Cost Schedule” means Schedule 1 attached hereto wherein the aggregate of all Costs relating to the Service/s provided in terms of this Agreement are set out, as may be amended from time to time
“Costs” means the sum of the Once Off Costs and the Monthly Costs;
“CPA” means the Consumer Protection Act No. 68 of 2008
“Customer” means the Party specified as Customer on the Application Form to which these Standard Terms and Conditions are attached
“Customer Support Schedule” means the schedule attached hereto containing customer support information
“Effective Date” means notwithstanding the Signature Date, the date upon which the first of the Services and each subsequent Effective Date listed in each Schedule provided to the Customer in terms of this Agreement, have been Commissioned
“ECNS Provider” means one of the electronic communication network service providers licensed to provide those services in terms of the Electronic Communications Act 36 of 2005
“Equipment” means equipment supplied by KorCom to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilise the Services
“KorCom” means KorCom (Proprietary) Limited (company registration number 2012/101820/07);
“Initial Period” means the initial term relating to each of the Service/s, as set out in the Cost Schedule;
“KorCom MAC Form” means a form completed by KorCom and Customer wherein moves, additions, or changes to pricing or specifications of existing Services under the Agreement are to be made;
“Monthly Costs” means the monthly fee payable by the Customer to KorCom in consideration for the provision of the Service/s;
“Once Off Costs” means the once off initial costs charged to the Customer as set out in the Cost Schedule, for the set up and/or installation of the Software, Equipment and/or Services;
“Parties” means the Parties to these Standard Terms and Conditions and “Party” means any one of them as the context may indicate;
“Proprietary Information” means any and all trade secrets and data/information of a proprietary and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential
“Schedule/s” means the each of the Schedules attached hereto wherein the service specifications of each of the Service/s, and the Costs related thereto are specified, as may be amended from time to time;
“Service/s” means all the service/s provided by KorCom as specified in the Schedules to this Agreement, including all software and Equipment necessary for the provision of the Service/s;
“Signature Date” means the date of signature of this Agreement by the Party signing it last in time;
“Software” means any computer program or software installed or provided by KorCom for the purposes of using the Services;
“South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to applicable codes of conduct, as may be promulgated or amended from time to time;
“VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991.
The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.
The Customer hereby appoints KorCom to provide the Service/s to the Customer for the duration of this Agreement, which appointment KorCom accepts on the terms and conditions contained in this Agreement
Commencement and Duration
The Agreement shall commence upon the Effective Date and shall endure until the termination date of the last of the Schedules.
The duration period of each of the Services shall be as specified in the relevant Schedules.
Charges and Payment
KorCom shall be entitled to commence invoicing the Customer for the Costs in relation to each Service from the date that such Service is Commissioned, as set out in the Schedule concerned (“Date of Commissioning”).
When the Date of Commissioning is delayed through the fault of the Customer, KorCom shall be entitled to commence invoicing the Customer for the Costs in relation to each Schedule, with effect from 30 (thirty) days after the Signature Date.
In the event of a single Service consisting of a number of components, KorCom shall be entitled to commence invoicing the Customer for each respective component of that Service as and when each component of that Service is activated for Customer use.
Customer is responsible for and agrees to pay to KorCom all Once Off Costs and Monthly Costs specified in the Cost Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
The Costs specified in the Cost Schedule exclude:
VAT and any other any taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement, and
All and any ECNS Provider fees, for which Customer agrees to make payment directly to the ECNS provider on such terms as are agreed between the ECNS provider and Customer, and shall at all times be the responsibility of the Customer. The Customer hereby indemnifies and holds KorCom harmless against any claims, costs and/or damages which may be incurred by the Customer or the ECNS Provider as a result of a failure by the Customer to pay the ECNS Provider fees, or any part thereof, as the case may be.
Invoicing will be processed and delivered monthly in advance, and all invoices for Services shall be settled by the Customer, monthly within 14 (forteen) days of the date of invoice.
In the event of any dispute arising as to the amount or calculation of any Costs to which KorCom is entitled in terms of this Agreement, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on KorCom and Customer. The cost of the determination shall be paid on demand by the Party against whom the determination is made, or as determined by the said auditors. However, where the provisions of the CPA are applicable to this Agreement, and do not allow for the enforcement of the above provisions this clause shall not apply.
Any amount falling due for payment by Customer to KorCom in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two percent (2%) charged by First Rand Bank Limited from time to time, monthly in arrears.
KorCom shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the Monthly Costs, provided that:
KorCom shall be entitled to increase the Monthly Costs during the first 12 (twelve) months of this Agreement
KorCom shall increase the Monthly Costs on more than one occasion in any subsequent 12 (twelve) month period of this Agreement
Invoices will be emailed to the Customer’s designated email address (for billing purposes) indicated in the Application Form unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed.
KorCom is obliged to protect its technical infrastructure against security threats and to protect the interests of its customers by ensuring that the conduct of no one customer prejudices the user experience of the other customers. Accordingly, KorCom imposes certain reasonable rules relating to the Customer’s conduct while using the Services which are contained in KorCom’ Acceptable Use Policy (“AUP”) (available at www.korcom.co.za/tc by clicking on the “legal” link). Because security threats can be fluid and acceptable usage can change, KorCom may from time to time amend this AUP by publication on its website. These amendments will not materially affect the Agreement, but will merely update the limits of the Customer’s existing duty to use the Services in a safe and responsible manner.
Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
Damages in any way KorCom’ technical infrastructure or any part thereof
Impedes, impairs or precludes KorCom from being able to provide the Service/s in a reasonable and business-like manner
Constitutes an abuse or malicious misuse of the Service/s; or is calculated to have any of the above mentioned effects. In such an event, should KorCom incur expenses to remedy the situation, KorCom reserves the right to charge the Customer the amount necessary to cover KorCom’ additional expenditure. Notwithstanding the above, KorCom reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
Customer is prohibited from selling, reselling or otherwise dealing with the Service/s which are proprietary to KorCom in any manner whatsoever. Without limitation to the a foregoing, any consideration which Customer may receive whilst acting in breach of this prohibition shall be forfeited to KorCom.
Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service/s through any of Customer’s Equipment, personnel and/or address.
Customer is prohibited from modifying any Equipment (including but not limited to router equipment) utilised by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such Equipment.
Customer shall at all times adhere to and ensure compliance with the Schedule/s, if applicable
Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against KorCom, its servants, its agents or any other persons for whom it may be liable in law if KorCom interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to KorCom.
Customer may not at any time use the Service in contravention of any South African Law. Customer acknowledges that KorCom has no obligation to assist Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
Provision of the Services by KorCom
To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against KorCom, is to require KorCom to remedy the defect in the quality of the Services performed.
If KorCom has supplied Equipment to enable the Customer to utilise the Services in the circumstances set out in clause 6.1, defects in the Equipment will be dealt with as described in clause 7.
Returns and Refunds
If the provisions of the CPA are applicable to this Agreement, to the extent that Equipment is supplied to a Customer, the Equipment is warranted in respect of quality, suitability and durability for a period of 3 (three) months of the Effective Date in respect of the Equipment concerned. Provided the Customer is not in breach of the Agreement, Customer may within this period return the Equipment to KorCom without penalty if the Equipment fails to satisfy the requirements and standards contemplated and KorCom shall repair or replace the failed, unsafe or defective Equipment.
If Customer elects to enforce the provisions of clause 7.1 and, within 1 (one) month of any repair undertaken by KorCom, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered by Customer, KorCom shall, in its sole and absolute discretion:
Replace the Equipment
Refund to Customer the Once Off Cost applicable thereto.
KorCom warrants and represents that:
It has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide the Services to the Customer
It is the owner of or has the right to use under licence any intellectual property employed by it during or as part of the Services
It is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement
The Services shall be performed in compliance with South African Law
The Services shall be provided in accordance with the provisions of this Agreement
The Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with the highest standard of its industry
Save as expressly set out in clauses 6, 7 or 1 above, KorCom does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
KorCom does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
Will be preserved or sustained in its entirety
Will be delivered to any or all of the intended recipients
Will be suitable for any purpose
Will be free of inaccuracies or defects or bugs or viruses of any kind
Will be secured against intrusion by unauthorised third parties; and KorCom assumes no liability,
responsibility or obligations in regard to any of the exclusions set forth in this clause 8
Risk and Ownership
All rights of ownership in and to any Equipment:
Supplied by KorCom on a loan or rental basis, shall remain vested in KorCom
Acquired by the Customer from KorCom either free of charge or at a subsidised price shall remain vested in KorCom for the duration of the Initial Period of the Schedule in terms of which it is supplied
Acquired at KorCom’s listed price shall remain vested in KorCom until the Customer has made payment therefore in full to KorCom
All risk in and to the Equipment shall pass to the Customer on delivery thereof at the premises of the Customer. Upon the signature of a proof of delivery by the Customer, the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after the signature of a proof of delivery, the Customer shall be obliged to replace and/or repair or to pay to KorCom the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
The Customer undertakes:
To display in relation to the Equipment no lesser degree of care than it would had if the Equipment belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment
Not, in any manner, to alienate, encumber or otherwise dispose of the Equipment
Not to procure repair or maintenance of the Equipment by any third party without the prior written consent of KorCom (which shall not be unreasonably withheld) or in any other manner tamper with the Equipment
Limitation of Liability
KorCom shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where KorCom’s failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
The Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement; or
Circumstances that constitute an event of force majeure as contemplated in clause 17 hereof; or
All telecommunications infrastructure and communication line faults; or
Failure or unreasonable delay by the Customer to report faults/problems to KorCom; or
The failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which KorCom relies to provide the Service/s.
KorCom shall not be responsible for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising if such loss is caused by any defect or failure in the Equipment due to:
Compliance by KorCom with any applicable legislation; and/or
Any alteration to the Software and Equipment by the Customer; and/or
Any defect and/or hazard in any third-party equipment required by the Customer to be used in the provision of the Service.
In addition to 10.1 and 10.2 above, and to the extent permitted by South African Law, KorCom shall not be responsible for indirect or consequential damages or loss (including but not limited to loss of data, profits and goodwill) of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
The Customer shall indemnify and hold KorCom and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 10.2 above.
Subject to clause 10.1 – 10.3 above, the entire liability of KorCom and Customer’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 12 (twelve) months preceding Customer’s written notice to KorCom in respect of such claim.
Customer hereby indemnifies KorCom against and holds KorCom harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of KorCom is excluded in terms of clause 10.1 – 10.3 above.
Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of KorCom of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
Notwithstanding anything to the contrary contained in this Agreement, KorCom reserves the right in its absolute discretion and after the receipt by KorCom of any take-down notice in terms of the Electronic Communications and Transactions Act 25, 2002 or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of KorCom’ intention to remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, KorCom shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by KorCom shall in no way constitute a breach by KorCom of this Agreement.
Any specifications, descriptive matter, drawings and other documents which may be furnished by KorCom to Customer from time to time
Do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement by way of a Schedule;
Shall remain the property of KorCom and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in KorCom. Such documents shall be returned to KorCom on demand.
If either party hereto:
Breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the non-breaching party
Commits any act of insolvency
Endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the non-breaching party’s’ rights hereunder or at all
Allows any judgement against it, in excess of R100 000.00 (One Hundred Thousand Rand), to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end
Is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered; the other party shall have the right, as and where applicable without prejudice to any other right which it may have against the breaching party, to:
Suspend or terminate the Services
In the case of KorCom, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until Customer has remedied the breach; and/or
Cancel this Agreement in any event without prejudice to the non-breaching party’s’ right to claim damages. The right of either party to suspend or terminate the Services as a result of breach shall apply throughout the duration of the Agreement, both within the Initial Period and thereafter.
The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
Subject to what is set out in Clause 12.1 above, KorCom shall be entitled to suspend the provision of the Services where Customer breaches any provision of this Agreement or where any payment to KorCom is overdue by more than 14 (fourteen) days.
If the provisions of the CPA are applicable to this Agreement, the above sub-clauses shall operate as follows:
The Parties will be required to give 20 business days’ notice to the other of any of the circumstances set out in clause 12.1;
Clause 12.1 shall not be applicable and in such circumstances, KorCom shall be entitled to payment by Customer of no less than 80% (Eighty Percent) of the remaining amounts due and payable over the unexpired period of the Agreement.
Notwithstanding anything set out in clause 13 below, all intellectual property rights in and to the Software (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to KorCom. Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by KorCom, or any of its third party suppliers.
Customer warrants that it shall not use the Service/s to produce, host or present any content in contravention of any person’s intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party’s intellectual property rights. Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to 3rd parties.
Customer hereby indemnifies and holds KorCom and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party made arising out of the provisions of clauses 15.1 and 15.2.
Protection of Proprietary Information
Each Party will keep in confidence and protect Proprietary Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement. Either Party acknowledges that unauthorised disclosure or use of Proprietary Information may cause substantial economic loss. All printed materials, containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for either Party’s authorized use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
Each Party shall ensure that its employees comply with its obligations under this clause 14.
This clause 14 shall survive termination or cancellation of this Agreement.
This Agreement does not transfer to either Party title to any intellectual property contained in any Proprietary Information of the other Party.
Cession and Assignment
Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by KorCom prior to such cession and/or assignment.
The parties agree that in the event of a breach of this Agreement by Customer which causes KorCom to suffer damages of any nature whatsoever, KorCom shall not be required to attach any of Customer’s hardware in execution, and shall be entitled to retain a lien over such hardware in reduction of any debt due by Customer to KorCom.
KorCom shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of KorCom, provided that KorCom makes all reasonable efforts to perform.
It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of KorCom and the force majeure provisions shall apply:
An ECNS provider fault that affects the Service/s; and/or
The non-performance, inability to perform or delay in performance by the ECNS provider relating to the provisioning of equipment, services and/or facilities to KorCom that affects the Service/s; and/or
Acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, acts of God, interruption of transport, lockouts, flood, storm or fire.
Dispute Resolution and Arbitration
The Parties accept that disputes may arise between the Parties during the term of this Agreement.
Any dispute which arises relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to a committee consisting of two (2) members appointed by the Customer, and two (2) members appointed by KorCom, or alternates appointed by them, who will use their best efforts to resolve the dispute within fourteen (14) calendar days of the dispute having been referred to them.
Should the committee be unable to resolve a dispute, the parties agree to have the dispute resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed in terms of such Rules.
In the case of litigation:
The Parties consent to the jurisdiction of the appropriate division of the High Court of South Africa in respect of all proceedings which may arise out of or in connection with this Agreement;
All costs of litigation, on an attorney and own client scale and including any value added tax, charges and disbursements and fees of a like nature, incurred by the successful Party in successfully enforcing or defending any of the provisions of this Agreement, or any claim hereunder and shall be for the account of the Customer.
Where the Customer instigates the dispute and where the provisions of the CPA are applicable to this Agreement, and the Customer does not use the Services under dispute wholly or mainly for his business or profession, then the provisions of clauses 18.3 shall be voluntary, and the Customer may choose such other means of resolving the dispute as are set out in the CPA.
Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction
Place for Delivery of Notices
For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and the serving of any process, Customer chooses its place for delivery of notices (“domicilium”) at the physical address appearing on the Application Form. KorCom chooses its domicilium at 6 Malherbe Street, Rynfield, Benoni, Johannesburg, South Africa. Either Party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within ten 10 (ten) days of the said change. Any notice which either Party may give to the other shall be posted by prepaid registered post or hand delivered to the other Party’s domicilium and shall be presumed, unless the contrary is proved by the Party to whom it is addressed, to have been received by that Party on the 10th (tenth) day after the date of posting or on the day of delivery as the case may be.
No variation, amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorized representative from both KorCom and Customer. With respect to new pricing and/or service specifications in respect of existing Service/s, an KorCom MAC Form signed by a duly authorised representative of KorCom and a duly authorised representative of Customer will constitute a written variation of the Agreement in accordance with this clause 21.1.
The parties acknowledge having read and understood this Agreement and are not entering into this Agreement on the basis of any representations not expressly set forth in it.
Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between Customer and KorCom or not.
No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against either Party hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
Nothing in the Agreement shall constitute a partnership, joint venture, agency or employment between the Parties hereto, and neither Party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other in any way for any purpose.
Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive. In particular, termination or cancellation of this Agreement shall not affect any rights or duties arising under it with respect to Proprietary Information as set out in clause 14 above.
The terms and conditions appearing in the Schedule(s) hereto are hereby incorporated into the Agreement. In the event of any conflict between the Standard Terms and Conditions of this Agreement and those appearing in any Schedule/s hereto, these Standard Terms and Conditions shall prevail. In respect of any conflict in respect of pricing in the Agreement or the Schedules hereto, the costs set out in the Cost Schedule shall prevail.
These terms and conditions, together with the Schedule(s), Annexures and attachments hereto, constitute the whole of the agreement between KorCom and Customer relating to the subject matter hereof, notwithstanding anything in Customer’s inquiry, specification, acceptance, order or other documentation or discussion to the contrary.
Services, Hardware and software provided by KorCom will remain the property of KorCom upon cancellation (subject to any outstanding fees). All services, hardware and software will be required to be returned to KorCom within 7 (seven) days to KorCom’s domicilium.
Each last mile provider’s Standard Terms and Conditions for the provision of Services.
A transaction (as defined in the CPA) between the Customer and KorCom may or may not fall under the provisions of the CPA depending upon whether certain values set out in clause 22.2 in respect of the Customer (“Threshold Values”) are below a certain value at the time the transaction is entered into.
The Threshold Values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time
KorCom’s duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and KorCom will act upon the information given to it by the Customer in this regard. Consequently:
The Customer warrants that any statement made to KorCom in respect of its Threshold Values is accurate.
If the Customer claims that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, KorCom may at its instance require the Customer to provide it with financial statements as proof thereof.
If the Customer misstates the Threshold Values in such a way that KorCom considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by KorCom resulting from such misstatement.