GENERAL TERMS AND CONDITIONS
1.1. Unless the context clearly indicates otherwise, the following words, phrases and expressions have the respective meanings assigned thereto hereunder:
1.1.1. “Agreement” means the general terms and conditions, product specific terms and conditions, the proposal, the Service Application form and all addendums thereto as concluded between Amobia and the Customer;
1.1.2. “Addendum” means a supplementary agreement signed by the Customer that modifies a current Service Agreement;
1.1.3. “Business Day” means every day excluding Saturdays, Sundays and all national holidays;
1.1.4. "Month" shall mean a calendar month, being a period extending from the first to the last day of any one of the 12 calendar months of the year, both days inclusive, unless the context indicates otherwise and does not mean 30 days unless specifically stated.
1.1.5. “Charges” means all monthly service charges, usage charges, installation charges together with any other fees payable by the Customer to Amobia in respect of a Service, as set out or referenced in the applicable Service Application Form and General Terms and Conditions, as may be revised from time to time;
1.1.6. “Customer” means any person who has entered into an agreement or applied with Amobia for the provision of Services and/or the use of equipment, and may include any natural or juristic person, partnership, trust, body corporate, or similar group or association of parties. Customer is used interchangeably with the term “Subscriber”.
1.1.7. “Customer Data” shall include, but not be limited to, data transmissions (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of the Customer, its employees or authorised users of the Services, and other data provided to or obtained by Amobia and their respective agents in connection with the provision of Services. “Regulated Customer Data” is that Customer Data of which the use, processing or transfer is regulated by law or regulation as “personal data” where Amobia or their respective agents come into possession of such Customer Data.
1.1.8. “Customer Site” means the site or premises specified in the Service Application Form at which the Services are to be provided;
1.1.9. “Days” means calendar days;
1.1.10. “Equipment” means all hardware, software, systems, cabling, and facilities provided by Amobia at the Customer Site in order to provide the Services to the Customer. Equipment shall not be taken to include the Network or any hardware or software which forms the subject of a separate contract between Amobia and the Customer;
1.1.11. “General Terms and Conditions” means this document as may be revised from time to time;
1.1.12. “Initial Term” means the duration of the first agreement signed by the Customer in respect of Services as reflected in the Service Application Form or, if not stated, a minimum of one year from the Service Activation Date, unless the contrary is clearly indicated.
1.1.13. “Installation” means the installation of equipment at the Customer Site;
1.1.14. “Network” means the electronic communications network owned and/or operated by Amobia;
1.1.15. “Party” shall mean Amobia or the Customer (as the context requires), and “Parties” shall be construed accordingly;
1.1.16. “Product specific terms and conditions” means the specific terms and conditions applicable to the specific service as reflected in the Service Application Form;
1.1.17. “Proposal” means the quote or proposal document submitted by Amobia to the Customer and signed by the Customer in respect of the provision of Services and which incorporates the Service Application Form, the product specific terms and conditions and the general terms and conditions
1.1.18. “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2002;
1.1.19. “Service” means the services or product/s provided by Amobia to the Customer as set out in the Service Application Form and/or agreement to which the Customer subscribes;
1.1.20. “Service Activation Date” means the date on which services are enabled;
1.1.21. “Service Application Form” means a request for Services signed and delivered by the Customer to Amobia and accepted by Amobia as a binding agreement on the parties;
1.2. If any provision in a definition is a substantive provision imposing rights or obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
1.3. When any number of days is prescribed in this Agreement, same shall be reckoned exclusive of the first and inclusive of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
1.4. Where figures are referred to in numerals and in words and there is any conflict between the two, the words shall prevail.
1.5. Unless the context indicates the contrary, each reference to:
1.5.1. the singular shall include a reference to the plural and vice-versa;
1.5.2. any one gender shall include reference to each of the other gender; and
1.5.3. a natural person shall include a reference to a Body Corporate and vice-versa.
1.6. Headings of clauses are for reference purposes only and shall not govern the interpretation of this Agreement.
1.7. No provision of the Agreement is intended to contravene the applicable provisions of the Consumer Protection Act, 2008. Should there be a conflict between the Agreement and the Consumer Protection Act, the provisions of the Consumer Protection Act shall prevail.
1.8. The terms and conditions of the Agreement may be amended from time to time. It is the Customer’s responsibility to stay updated with the latest terms and conditions by visiting Amobia’s website.
2.1. Amobia provides Services to the Customer on the basis of information provided by the Customer, Amobia offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Customer.
2.2. The Customer should complete and sign a Service Application Form and deliver it to Amobia for the provision of the Service by Amobia to the Customer.
2.3. A Service Application Form shall take such form as may be provided by Amobia to the Customer and/or as Amobia may in its sole and absolute discretion accept.
2.4. A Service Application Form shall be binding on both Parties only after it has been signed by the Customer and accepted by Amobia, subject to the following:
2.4.1. In the case of Amobia, such acceptance being contingent upon the performance of a credit check against the Customer, to which the Customer hereby consents;
2.4.2. Every Service Application Form issued and accepted pursuant to this Agreement creates an individual contractual relationship between the Parties to provide and receive the Services. That contractual relationship shall be governed by this Agreement, together with the relevant Service Application Form and any product specific terms contained in such Service Application Form, to which terms the Parties hereby agree.
2.4.3. The Services being subject to all mandatory legal requirements in the jurisdiction where the Services are to be provided, including but not limited to all regulatory and data protection requirements.
2.5. Any conflict between the terms of the Service Application Form and the terms of the General Terms and Conditions Agreement, resulting in the terms of the Service Application Form taking precedence.
2.6. The terms and conditions of this Agreement and the Charges for the Services provided hereunder are agreed expressly on the condition that the Customer shall not resell, charge, transfer or otherwise dispose of the Service (or any part thereof) to any third party.
2.7. Amobia reserves the right, from time to time, to change the configuration of the Network or the Equipment, or to change any applicable access code for receipt of the Services, provided always that such change does not materially affect the relevant Services. Amobia shall use all reasonable endeavours to give the Customer a minimum of 1 (one) Months’ notice of any such changes.
3. TERM AND TERMINATION
3.1. The Agreement shall take effect from the date on which a Service Application Form is accepted by Amobia in accordance with Clause 2 above, or alternatively the date on which the Customer first makes use of a Service, whichever of these occurs first, and shall continue in force unless terminated in accordance with this clause.
3.2. Every Service shall take effect from its respective Service Activation Date and shall persist for the Initial Term, unless otherwise specified and agreed to between the Parties.
3.3. The Services will continue automatically after the Initial Term expires on the same terms and conditions contained in the Service Application Form and the general terms and conditions on a Month-to-Month basis, unless terminated by either Party.
3.4. Unless otherwise expressly stated in the Agreement, upon expiry of the Initial Term or any automatic renewal period Amobia, in its sole discretion, may remove or change any discounts that were applicable.
3.5. Either Party may terminate a Service subject to the provisions of the applicable Service Application Form.
3.6. Either Party may terminate a Service immediately upon written notice:
3.6.1. If, in relation to that Service, the other Party has committed a material breach which is incapable of remedy.
3.6.2. If, in relation to that Service, the other Party has committed a material breach capable of remedy, but which it fails to remedy within 10 (ten) Business Days of having been notified of such breach.
3.6.3. If, in relation to that Service, a Force Majeure event subsists for a continuous period exceeding 2 (two) Months.
3.6.4. If the other Party has a receiver or an administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other Party becomes subject to an administration order or enters into any voluntary arrangement with its creditors or ceases or threatens to cease to carry on business, or undergoes or is subject to any analogous acts or proceedings under any foreign law;
3.6.5. Where, after expiry of any Initial Term(s), no Services have been provided under this Agreement for a continuous period exceeding 2 (two) Months.
3.7. Amobia may terminate this Agreement (or a specific Service) immediately by written notice if a suspension of a Service pursuant to Clauses 4 below has continued for a period of at least two (2) consecutive months.
3.8. Notwithstanding the above, Amobia may terminate the Agreement (or the relevant Service) on 5 (five) Business Days’ written notice if the Customer fails to make any payment, when due, in accordance with the terms of this Agreement.
3.9. Without prejudice to accrued rights or obligations, upon termination of any Service:
3.9.1. All Service Application Forms and accompanying Services shall terminate immediately.
3.9.2. All accrued Charges not yet invoiced shall become due and payable by the Customer immediately on receipt of an invoice.
3.10. Termination of a Service shall not affect clauses which necessarily or by their contexts require survival of the Agreement.
3.11. Should the Customer terminate or amend the Services before the installation and/or Service Activation date for any reason other than a breach on the part of Amobia, Amobia will have the right to charge the Customer all costs which Amobia has incurred because of the cancellation or variation, which amount shall be payable by the Customer on demand.
3.12. Should the Customer terminate a Service prior to the expiry of the Initial Term or any renewal period for any reason other than expressly provided for in the Agreement, the Customer shall remain liable for all amounts owing to Amobia up until the date of termination and Amobia shall be entitled (unless the Customer is entitled to terminate the Service without penalty) to levy a cancellation/early cancellation charge as may be stipulated in the relevant Service Application Form.
4. SERVICE SUSPENSION
4.1. Amobia may, at its sole discretion and without prejudice to any rights which it might have to terminate a Service and/or the Agreement, elect to immediately suspend the provision of a Service (or part thereof) in any of the following circumstances, where Amobia:
4.1.1. Has reasonable grounds to consider, it is entitled to terminate the Service and/or this Agreement pursuant to Clause 3 above.
4.1.2. Is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority.
4.1.3. Needs to carry out emergency works to the Network or Equipment.
4.1.4. Has reasonable grounds to consider that the Service is being used fraudulently or illegally or in violation of and express warranty by the Customer.
4.1.5. Has reasonable grounds to consider that the Customer will not or is unable to make any payment which is due or is to fall due to Amobia in terms of the Agreement.
4.1.6. Has reasonable grounds to consider that the Customer is or has been involved or connected with criminal activity or other activity, which is or may be detrimental to Amobia.
4.2. In the event of Amobia exercising its right to suspend the Service (or part thereof) it shall, whenever reasonably practicable, give prior notice of such suspension to the Customer, such notice to state the grounds of such suspension and its expected duration. Amobia shall in such circumstances use all reasonable endeavours to resume the Service as soon as is practically possible.
4.3. If the Service (or part thereof) is suspended as a consequence of the breach, fault, act or omission of the Customer, the Customer shall pay to Amobia all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Service.
4.4. A reconnection fee of R 75.00 will be due and payable should it be necessary to reconnect the services after it was disabled due to non-payment.
4.5. Amobia shall not be liable for any loss, damage or inconvenience suffered by the Customer as a result of any suspension, except to the extent that such suspension is for reasons which are solely and directly attributable to the negligence of Amobia.
5. OBLIGATIONS ON TERMINATION/SUSPENSION
5.1. The Customer is liable for any obligation accrued at the date of termination or suspension of the Services, including the payment of any costs or charges that may arise in connection with such termination (including, without limitation, the cancellation fees referred to in clause 3.11) or suspension, and the payment of all outstanding fees for the use of the Services prior to said termination or suspension.
5.2. The payment obligations of the Customer in terms of the Agreement are not suspended, stayed, delayed or otherwise affected by any suspension of access to the services where such suspension arises from the Customer’s failure to comply with, or violation of, the terms and conditions of the Agreement or any law or legal obligation of the customer.
5.3. Amobia shall be entitled to immediately deactivate the Service on the date of termination or cancellation and further, has no obligation to the Customer after any termination or cancellation of the Agreement.
6. SERVICE ACTIVATION
6.1. The provision of a Service may be subject to feasibility to be confirmed by a physical site survey, such site survey will only be conducted after signature of a Service Application Form.
6.2. Amobia shall install the Equipment and deliver the Service to the Customer at the address nominated by the Customer on the Service Application Form. The Customer shall be obliged to pay the reasonable costs incurred by Amobia in installing the Equipment as stipulated in the Service Application Form.
6.3. The Customer is obliged to obtain all necessary approval and authorities imposed by any competent authority and required for purposes of installing the Equipment, including landowner consent where the Customer is not the landowner. The Customer hereby indemnify Amobia against any claim or liability suffered by the Customer by reason of such approval and authorities not having been obtained.
6.4. Once the Equipment has been installed and the Service delivered, any subsequent callout shall be subject to a callout charge.
6.5. The Service provided by Amobia is subject to the availability of sufficient signal to the Customer’s Site which is dependent on a reasonable line-of-sight to one of Amobia’s High Sites.
6.6. Prior to the provision of a Service, Amobia may conduct any such tests as it deems appropriate to determine that all necessary work has been done to provide the Services to the Customer.
6.7. The Customer shall be deemed to have accepted the Service, either:
6.7.1. upon the date of installation or,
6.7.2. if earlier, upon the date the Customer first uses the Service or such date stipulated in a Service Application Form. Such date for a particular Service may be further described and defined in the relevant Service Application Form with such date being deemed as the Service Activation Date.
6.8. Notwithstanding the above and the passing of the Service Activation Date, the Customer hereby acknowledges that provision of the Service by Amobia is contingent upon the Customer first providing Amobia with such documents as may be mandated by RICA, namely:
6.8.1. In the case of a natural person:
• A certified copy of his/her South African Identity document or passport.
• Proof of residential, postal or business address (original or certified copy) not older than 3 Months.
6.8.2. In the case of a juristic person (company/trust/NPC):
• A certified copy of its representative’s South African identity document or passport.
• Proof of its representative’s residential and postal address (original or certified copy) not older than 3 Months.
• Proof of its registered, postal and/or business address (original or certified copy) not older than 3 Months.
• A certified copy of the its registration/incorporation certificate.
• A certified copy of its letterhead.
7. FREE TO USE ROUTER POLICY
7.1. Some Services includes a Free-to-Use router.
7.2. The router is free to use but remains the property of Amobia for the duration of the Service.
7.3. The router must be returned within 10 days from the account deactivation date, if not Customer will be billed for it. No router returns will be accepted any later than 10 days after the account was deactivated.
7.4. The account code must be provided when the router is returned.
7.5. Amobia will not accept responsibility for any damage or defaults should the Customer wish to keep the router or fail to return it within the 10 day period.
7.6. All costs involved in returning the router are for Customer’s own account.
7.7. The Customer will be charged the original retail value of the router.
7.8. The LAN cable, power cable and anything else included in the router box must be returned, as Amobia reserves the right to bill the Customer for any missing items.
8. CHARGES AND PAYMENT
8.1. The Customer hereby agrees to pay the Charges, unless agreed otherwise in writing, monthly in advance. All Charges are due by the 5th Business Day of the Month.
8.2. The Customer may elect to pay the Charges via EFT or debit order.
8.3. All EFT payments are subject to an additional monthly administration fee.
8.4. Should the Customer select to pay via debit order, he/she agrees to sign all such forms and do everything as may be reasonably necessary to give effect thereto.
8.5. Debit order will be processed as follows:
8.5.1. The first month’s Charges will be deducted on last Business Day of the Month.
8.5.2. All future Charges will be deducted on the 2nd (second) last Business Day of the Month.
8.5.3. Where Service Activation occurs after the 22nd (twenty second) Day of a given Month, the Charges will be deducted by means of debit order on the 5th (fifth) Business Day of the subsequent Month, with all future payments to me deducted as detailed in clause 8.5.2. above.
8.6. Any cancellation of a debit order without prior written consent from Amobia shall constitute a breach of the Agreement.
8.7. Where payment is made by the Customer through a debit order or EFT, the Customer’s banker or other intermediaries shall act as Customer agents and the Customer shall have discharged its obligation only upon payment being received by Amobia or their banker.
8.8. Amobia will invoice the Customer for all Charges on a monthly basis via e-mail or other online medium (such as Customer Zone website) unless otherwise agreed to in writing.
8.9. The Charges are to be paid free of exchange and without deduction or set-off.
8.10. Amobia shall be entitled to amend Charges on 30 (thirty) Business Days’ notice to the Customer.
8.11. Should the Customer fail to make payment of any Charges owed to Amobia, without prejudice to any other rights which Amobia may have, Amobia shall be entitled to take all such further steps as may be necessary to recover the outstanding amounts from the Customer, in which event the Customer agrees to pay all costs associated with such recovery on an attorney and own client basis.
9. AMOBIA’S OBLIGATIONS
9.1. Amobia hereby expressly warrants that:
9.1.1. It possesses all necessary permissions, licences and agreements for the provision of the Service to the Customer.
9.1.2. All Equipment and Services provided will be in good working order upon conclusion of the installation process and that they will conform to its service specifications.
9.2. In performing its obligations under the Agreement, Amobia shall at all times exercise the reasonable skill and care of a competent provider of the Services.
9.3. Amobia shall use reasonable endeavours to ensure that every Service will conform to any service descriptions and/or service levels as set out, or referred to, in the applicable Service Application Form and/or any applicable ancillary service level agreement.
9.4. Except as expressly set out in the Agreement, all warranties, representations or agreements, with respect to the provision of a Service or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statute or otherwise, are excluded to the extent permitted by law.
9.5. The express warranties contained in this Agreement are in lieu of all other warranties, representations and guarantees of any kind by Amobia. Except as expressly set forth in this Agreement, all products, services and other materials (if any) are furnished by Amobia and accepted by the Customer "as is".
10. CUSTOMER OBLIGATIONS
10.1. The Customer shall grant Amobia and/or its authorised representatives all such rights of access to each Customer Site, including any necessary licences, waivers or consents so as to enable it to perform its obligations or exercise its rights under this Agreement. The Customer shall advise Amobia in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer Site, and Amobia shall use all reasonable endeavours to observe and ensure that its employees and authorised representatives observe such regulations and requirements as advised whilst at the Customer Site.
10.2. The Customer shall provide Amobia with such facilities and information as Amobia may reasonably require, to enable it to perform its obligations or exercise its rights under the Agreement.
10.3. The Customer warrants and undertakes that it shall:
10.3.1. Use the Equipment only for the purpose of receiving the Service and in accordance with Amobia’s reasonable instructions from time to time and/or any software licence that may be provided with the Equipment.
10.3.2. Not move, modify, relocate, or in any way interfere with the Equipment (or any words or labels on the Equipment) or the Network.
10.3.3. Not cause the Equipment to be repaired or serviced except by an authorised representative of Amobia.
10.3.4. Insure and keep insured all Equipment installed at each Customer Site against theft and damage.
10.3.5. Not create or allow any charges, liens, pledges or other encumbrances to be created over the Equipment.
10.3.6. Agrees that the Equipment is movable property and that the title to the Equipment shall at all times belong and remain with Amobia, an Amobia affiliate or their subcontractors.
10.3.7. Permit Amobia to inspect, test, maintain and replace the Equipment at all reasonable times.
10.3.8. Comply with Amobia’s reasonable instructions in relation to the modification of the Equipment to enable the Customer to receive the Service, at its own expense.
10.3.9. Upon termination of a Service, allow Amobia, its agents and/or sub-contractors access to each Customer Site to remove the Equipment. The Equipment must be maintained in a good working order. Should any construction or alteration to the Customer Site have occurred to facilitate any Service, Amobia is not obliged to restore the Customer Site to the same physical state as prior to the Agreement.
11. LIMITATION OF LIABILITY AND INDEMNITIES
11.1. The Customer hereby indemnifies Amobia and agrees to hold it free from all loss, damages, claims and/or costs of whatsoever nature, suffered or incurred by Amobia or instituted against Amobia as a direct or indirect result of:
11.1.1. The Customer’s use of the Service.
11.1.2. The installation of Equipment pursuant to the Agreement.
11.1.3. The Customer’s failure to comply with any provisions of the Agreement or any other reasonable requirements which Amobia may impose from time to time.
11.1.4. Unavailability of or interruption in the provision of the Service.
11.1.5. Failure of the Equipment.
11.2. Notwithstanding the generality of the above the Customer hereby specifically indemnifies Amobia against any and all indirect and/or consequential loss.
12.1. The Customer hereby agrees that Amobia may, from time to time, send the Customer communications regarding (without being limited to) special offers, discounts, operational changes that may affect the service and/or new services launched by Amobia.
13. BILLING DISPUTES AND COMPLAINTS
13.1. The Customer hereby acknowledges and agrees to abide by the terms and conditions of Amobia’s Code of Conduct, Billing Disputes and Complaints Handling Procedure .
14. CERTIFICATE OF INDEBTEDNESS
14.1. Any amount due and payable by the Customer to Amobia in terms of this agreement at any time shall be determined and proved by a certificate signed by one of Amobia’s directors, whose appointment, qualification and authority need not be proved.
14.2. Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against the Customer.
15. FORCE MAJEURE
15.1. Neither Party will be liable to the other for any delay in or failure to perform or comply with its obligations under the Agreement and/or any Service as a result of a Force Majeure Event. The Party affected by a Force Majeure Event shall promptly notify the other Party in writing within 5 (five) Business Days of its commencement detailing the estimated extent and duration of its inability to perform or delay in performing its obligations under the Agreement.
15.2. Upon cessation of the effects of a Force Majeure the Party affected by the Force Majeure shall promptly notify the other Party in writing within 5 (five) Business Days of such cessation.
15.3. If as a result of a Force Majeure, the ability of a Party to perform its obligations under the Agreement is affected, the affected Party shall perform those of its obligations that are not affected by the Force Majeure. In performing such unaffected obligations, the affected Party shall deploy its resources such that (when taken together with other obligations to its customers and third Parties) there is no undue discrimination against the other Party.
15.4. If a Force Majeure Event continues for a period in excess of 60 (sixty) Business Days either Party shall be entitled to terminate the Agreement and/or any applicable Service forthwith by written notice and without liability for termination.
16. CUSTOMER DATA AND PRIVACY
16.1. The Customer acknowledges that Amobia and its respective contractors will, by virtue of the provision of Services, come into possession of Customer Data.
16.2. Amobia has implemented and maintains appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against other unlawful forms of processing. The Customer acknowledges that it has right to access Regulated Customer Data upon written notice and have any agreed errors in such Regulated Customer Data rectified.
16.3. The Customer acknowledges and agrees that Amobia and its respective subcontractors may use or process Customer Data:
16.3.1. In connection with the provision of Services.
16.3.2. To incorporate Customer Data into databases controlled by Amobia for the purpose of administration, provisioning, billing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and customer analysis and reporting, market and customer use analysis.
16.3.3. To communicate to the Customer by voice, letter or email regarding products and services of Amobia.
16.4. The Customer may withdraw consent for such use, processing or transfer of Customer Data as set out above by sending a written notice to Amobia to such effect, unless it is required to (i) provision, manage, account and bill for the Services; (ii) carry out fraud detection; or (iii) comply with any statutory obligation, regulatory requirement or court or other public authority order.
16.5. The Customer warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer Data as described in this clause.
17. CESSION AND DELEGATION
17.1. The Customer may not cede or assign any of its rights or delegate any of the Customer’s obligations under the Agreement without the prior written consent of Amobia, which consent shall not be unreasonably withheld.
17.2. Amobia shall be entitled, in its sole discretion and without notice to the Customer, to cede and transfer or delegate to any third party any or all of its rights or obligations under the Agreement.
18.1. The Customer and Amobia choose the addresses set out in the Service Application Form as their chosen address (“domicilium”) for all purposes under the Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature.
18.2. Either party may change its domicilium on written notice to the other.
18.3. Any notice required or permitted to be given in terms of the Agreement shall be valid and effective only if given in writing.
19.1. The Agreement shall be governed by the laws of the Republic of South Africa.
19.2. The Customer hereby consents to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by Amobia arising out of the Agreement, provided that Amobia shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the Customer consents to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.
20.1. Amobia undertakes not to disclose to any third party details of the Customer’s name or address (“customer details”) except as set out in this clause 20.
20.2. The Customer hereby authorises Amobia to disclose Customer’s details to a third party wherever Amobia deems this reasonably necessary to enable it to properly perform its functions or protect its interests (including, without limitation, for the purposes of credit vetting the customer), for the purpose of enabling the provision of emergency services or directory or repair services to the Customer.
20.3. In addition, Amobia may disclose the Customer’s details if required to do so in terms of any regulatory authorities or any court of law.
21.1. In order to ensure the security and reliable operation of the Service to all Customers, Amobia hereby reserves the right to take whatever action it deems necessary to preserve the security and reliability of its Network.
21.2. The Customer may not utilise the Service in any manner which may compromise the security of the Network or tamper with the Service or the Network in any manner whatsoever.
21.3. Violations of system or Network security by the Customer is prohibited and may result in civil or criminal liability. Amobia will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected. Examples of system or Network security violations include, without limitation, the following:
21.3.1. 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 Amobia.
21.3.2. Unauthorised monitoring of data or traffic on the Network or systems without express authorisation of Amobia.
21.3.3. Interference with the Service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
21.3.4. Forging of any ICP-IP packet header (spoofing) or any part of the header information in an e-mail or a newsgroup posting.
22. CUSTOMER BEHAVIOUR
22.1. The Customer hereby warrants and undertakes in favour of Amobia that the customer:
22.1.1. Shall not use nor allow the Services to be used for any improper, immoral or unlawful purpose, including, without limitation, attempting to utilise the Services to route (or assist another party to route) transit traffic from other networks to Amobia, nor in any way which may cause injury or damage to persons or property or an impairment or interruption of the Services.
22.1.2. Shall not share/resell the Services with any 3rd party.
22.1.3. Shall not operate an ISP/WISP using the Services.
22.1.4. Services may not be used to carry backhaul traffic for other 3rd party network operators.
22.1.5. Shall comply with all relevant legislation and regulations imposed by any competent authority and all directives issued by Amobia relating to the Services including its Acceptable Use Policy available on Amobia’s website, and hereby indemnifies Amobia for any losses, expenses, damages, harm or amount for which Amobia may become liable arising from or relating to the use of the Services in any manner whatsoever which violates the terms of the Agreement, Amobia’s Acceptable Use Policy or any law, legislation or regulations; and/or any claims made by any third party arising from the Customer’s use of the Services unless such losses, expenses, damages, harm or liability were directly attributable to the gross negligence or fraudulent intent of the supplier.
22.1.6. Will be held accountable for their conduct towards Amobia’s staff and in the public domain with regard to allegations or malicious conduct directed towards Amobia or its staff.
22.1.7. Abusive behaviour, including (but not limited to) aggression, bullying, offensive language or conduct, including threats, humiliation or any type of intimidation on a forum or directed at Amobia or its staff will be deemed abusive and will not be tolerated. Amobia reserves the right to suspend or terminate Services to a Customer in such cases.
22.1.8. Clients using public platforms to spread libel, false allegations, unreasonably or maliciously diminish the reputation or public perception of the Amobia (or its staff) may have their Services suspended or terminated, depending the severity and circumstances of the incident(s).
22.2. The Customer hereby agrees to adhere to generally acceptable Internet and e-mail etiquette. In this regard, without being limited to the examples listed below, the Customer agrees not to:
22.2.1. Engage in any abuse of e-mail or spamming, including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages.
22.2.2. Take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent the Customer’s affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service.
22.2.3. Use the Service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights.
22.2.4. Use the Service to make fraudulent offers to sell or buy products, items or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”.
22.2.5. Use the Service in a manner that may infringe the intellectual property rights (for example copyright or trademarks) or other proprietary rights of others, including (without being limited to) the transmission of pirated software.
22.2.6. Use the Service in a manner that could damage, impair, overburden or disable the Service or interfere with any other party’s use or enjoyment of the Service.
22.2.7. Use the Service to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended.
22.2.8. Repeatedly post gratuitous off the topic postings.
22.2.9. Gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the Service to collect or attempt to collect personal information about third parties without their knowledge or consent.
22.2.10. Maintain mailing lists, without the express permission and approval of the list members (should mailing lists contain invalid or undelivered addresses or addresses of unwilling recipients, those addresses must be promptly removed).
22.2.11. Violate the privacy of any person or attempt to gain unauthorized access to the Service or any other network, including (without being limited to) through hacking, password mining or any other means.
22.2.12. Use the Service to engage in any illegal or unlawful activity.
22.3. Should the Customer engage in any one or more of the above practices, which shall be determined in Amobia’s sole discretion and which decision shall be final, then Amobia shall be entitled, without prejudice to any other rights it may have, to:
22.3.1. Without notice, suspend the Customer’s access to the Service.
22.3.2. Terminate the Agreement with immediate effect; bill the Customer for any costs incurred by Amobia, including (without being limited to) bandwidth, administration costs, downtime, usage of Amobia’s name or registered domain names and CPU cycles.
22.4. Public relay occurs when a mail-server is accessed by a third party from another domain and utilized to deliver mails, without the authority or consent of the owner of the mail-server. User mail-servers must be secure against public relay as a protection to both themselves and the Internet at large. Mail-servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection, such delivery must be disallowed.
22.5. Amobia reserves the right to examine Customer’s mail servers to confirm that no mails are being sent from the mail-server through public relay and the results of such checks can, in Amobia’s sole discretion, be made available to the user.
22.6. Amobia also reserves the right to examine the mail servers of any Customer using Amobia’s mail-servers for “smart-hosting” (when the Customer relays it’s mail off a server of Amobia to a mail-server of the Customer) or similar services at any time to ensure that the servers are properly secured against public relay. All relay checks will be done in strict accordance with Amobia’s policy of preserving customer privacy.
22.7. Amobia further reserves the right, in addition to the rights set out in above, to (partially or fully) limit the download speed available to any particular Customer if, in the opinion of the Amobia, such Customer is abusing the system by regularly downloading large volumes of data from services such but not limited to as bit-torrent or other ‘peer to peer’ protocols, and thereby significantly limiting bandwidth available to other Customers.
23. VIRUS FILTERING
23.1. Amobia undertakes to filter content and scan all e-mail messages for viruses on the server side, but cannot be held liable for any virus that may slip past this line of defence. All Customers will be responsible for their own antivirus protection.
24.1. 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.
24.2. This Agreement, and any Product specific terms and conditions where applicable, constitutes the sole record of the agreement between Amobia and the Customer as regards the subject matter hereof.
24.3. No Party to the Agreement shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein.
24.4. Subject to the right of the Customer to terminate the Agreement in terms of clause 3, Amobia frequently modifies and seek to improve the Services which it provides to its customers, and any such changes may from time to time require that Amobia amends the Agreement. Amobia shall in its sole discretion have the right to amend the Agreement and to change and/or discontinue any feature or component of the Service, as it may deem necessary. Any use by the Customer of the Service after any such amendment has been implemented, shall be deemed to constitute acceptance by the Customer of such amendment.
24.5. No indulgence which any Party (“the grantor”) may grant to the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
24.6. 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.
24.7. Any provision of this Agreement which by its context is intended to apply after termination of this Agreement shall survive its termination.
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