Leased Line Terms & Conditions
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| 1. Provision of the service |
| 1.1 | MegaWeb Internet Services cc (“ MegaWeb ”) undertakes to provide to the Subscriber (being the party with whom MegaWeb has contracted), with on-line access to the collection of local area networks and wide area networks (hereinafter referred to as “the service”). These networks all use the same protocol (namely TCP/IP) to form a seamless, packet-switched network known colloquially as the “INTERNET”. These services shall be provided subject to the terms and conditions set out hereinafter. |
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| 2. These terms and conditions to prevail |
| 2.1 | These terms and conditions (hereinafter referred to as “this agreement”) shall, constitute the whole of the agreement between MegaWeb and the subscriber relating to the subject matter hereof, notwithstanding anything in the subscriber’s enquiry, specification, acceptance, order or other documentation or discussion to the contrary. In the event of any conflict arising between the terms of this agreement on the one hand and the application form or other said documents on the other hand, then, unless a contrary intention clearly appears, the terms of this agreement shall always prevail. |
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| 3. No variation or amendment |
| 3.1 | No amendment or consensual cancellation of this agreement or any provision or term thereof shall be binding unless recorded in a written document signed by a duly authorised representative from both MegaWeb and the Subscriber. | | 3.2 | No extension of time or waiver or relaxation of any of the provisions or terms of this agreement shall operate as an estoppel against either party hereto in respect of its right under this agreement. It shall also not preclude any of the parties thereafter from exercising its rights strictly in accordance with this agreement. | | 3.3 | Either party shall not be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract between MegaWeb and the Subscriber or not. |
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| 4. Duration |
| 4.1 | Unless otherwise agreed in writing to the contrary, the initial term of this agreement shall, subject to the provisions of clause 11 below, be for a period of 12 (twelve) months commencing with effect from the date upon which service first commences, notwithstanding the date of signature hereof. | | 4.2 | Save where this agreement is terminated by either party at the expiry of the initial term on not less than 90 (ninety) days prior written notice. Provided that the subscriber continues to make use of the service after the expiry of the initial term, this agreement shall be automatically renewed for successive periods of 12 (twelve) months. Either party may terminate this agreement at the end of the then current 12 (twelve) month period on 90 (ninety) days prior written notice. |
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| 5. Charges |
| 5.1 | The subscriber is responsible for and agrees to pay to MegaWeb all charges relating to its connection to the service and thereafter arising out of its use of the service. The subscriber is additionally responsible and agrees to pay MegaWeb for any consulting services, which may from time to time be carried out by or on behalf of MegaWeb. They will be rendered in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason. | | 5.2 | The charge for the subscriber’s entitlement to use the service is a monthly fee, which is payable in advance by the Subscriber to MegaWeb, monthly per annum. | | 5.3 | MegaWeb reserves the right to apply an escalation on the monthly fee at the end of each anniversary of the contract subject to MegaWeb giving at least three calendar months written notice to the Subscriber. | | 5.4 | All consulting services rendered by MegaWeb employees to the subscriber shall be charged for separately by MegaWeb to the subscriber. This will be at the usual rate per hour which MegaWeb ordinarily charges for such consulting services, plus such additional sum as MegaWeb would usually charge for travelling time if consulting services are rendered at the subscriber’s premises. All charges for consulting services rendered are payable within 30 days. | | 5.5 | In the event of any dispute arising as to the amount or calculation of any charge provided for herein which is payable by the subscriber, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on MegaWeb and the subscriber. | | 5.6 | Any amount falling due for payment by the subscriber to MegaWeb in terms of or pursuant to this agreement which is not paid on its due date shall bear interest. This interest is calculated from the due date for payment thereof until date of payment, at a rate of prime per month, monthly in arrears. |
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| 6. Subscriber’s Obligations |
| 6.1 | The subscriber shall comply strictly with all restrictions imposed on computer networks through which any information and/or data transmitted by the subscriber passes. | | 6.2 | | The subscriber may not commit nor attempt to commit any act or omission which directly or indirectly- | | 6.2.1 | in any way damages the technical infrastructure of MegaWeb or any part thereof, | | 6.2.2 | impairs or precludes MegaWeb from being able to provide the service in a reasonable and businesslike manner; | | 6.2.3 | constitutes an abuse or malicious misuse of the service; | | 6.2.4 | or is calculated to have the above-mentioned effect. |
| | 6.3 | In such an event, should MegaWeb incur expenses to remedy the situation MegaWeb reserves the right to charge the Subscriber an amount that is necessary to cover MegaWeb ’ additional expenditure. | | 6.4 | The subscriber is prohibited from selling, reselling or otherwise dealing with the service in any manner whatsoever. Any consideration which the subscriber may receive whilst acting in breach of this prohibition shall be forfeited to MegaWeb . | | 6.5 | The subscriber is prohibited from allowing any other party access to the service through any of the subscriber’s equipment, personnel and/or address. | | 6.6 | The subscriber may not at any time use the service in contravention of any South African law. In particular, the subscriber undertakes to familiarise itself and ensure that it is kept continuously appraised of all South African law in force from time to time which has any bearing on the service and/or its use. MegaWeb has no obligation to assist the subscriber in this regard. |
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| 7. Installation and access to service |
| 7.1 | The subscriber shall accept installation of and provision of access to the service by way of furnishing and activating of the address whenever tendered by MegaWeb . | | 7.2 | Under no circumstances may the subscriber resile from this agreement or withhold or defer any payment or be entitled to a reduction in any charge or have any other right or remedy against MegaWeb , its servants, its agents or any other persons for whom it may be liable in law (and in whose favour this provision constitutes a stipulatio alteri) if MegaWeb interrupts the service to the subscriber as it would be entitled to do if the subscriber is in default of any of its obligations under this agreement to MegaWeb or in the circumstances contemplated in clause 9.3 . |
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| 8. Warranties |
| 8.1 | | MegaWeb does not make any representations nor, unless expressly given in writing, give any warranty or guarantee of any nature whatsoever in respect of the service or its suitability for any purpose, whether that purpose is notified to MegaWeb or not. Without derogating from the generality of the aforegoing, MegaWeb does not warrant or guarantee that the information transmitted by and/or available to the subscriber by way of the service – | | 8.1.1 | will be preserved or sustained in its entirety; | | 8.1.2 | will be suitable for any purpose; | | 8.1.3 | will be free of inaccuracies or defects or bugs or viruses of any kind; |
| | 8.2 | and MegaWeb assumes no liability, responsibility or obligations in regard to any of the aforegoing exclusions. |
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| 9. Exclusion of Liability |
| 9.1 | MegaWeb , its servants or agents, and except as otherwise expressly provided herein to the contrary, shall not be liable to the subscriber or any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against MegaWeb or against the Subscriber by any party arising directly or indirectly out of the service, its use, access, withdrawal or its suspension or out of any information or materials provided or not provided, as the case may be, by or from it or their use. | | 9.2 | The subscriber hereby indemnifies MegaWeb against and holds MegaWeb harmless from any claim by any party arising directly or indirectly out of access to or use of the service or information obtained through the use of it, or in respect of any matter for which liability of MegaWeb is excluded in terms of clause 9.1 above. | | 9.3 | 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 service is provided, the provision of the service may be suspended from time to time without notice by MegaWeb . All liability on the part of MegaWeb of any loss or damage (whether directly or consequential) thereby incurred or for any costs, claims or demands of any nature arising therefrom, is excluded, and the provisions of clause 9.1 above shall apply mutatis mutandis to such exclusion. Should the provision of the service be suspended by MegaWeb for the purpose aforementioned for a period in excess of 48 (forty eight) consecutive hours, MegaWeb shall give the subscriber credit in an amount which represents a pro rata portion of the Subscriber’s basic subscription fee for the month during which the said suspension occurred. |
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| 10. Documentation |
10.1.
| Any specifications, descriptive matter, drawings and other documents which may be furnished by MegaWeb to the subscriber from time to time – |
| | 10.1.1 | 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; | | 10.1.2 | shall remain the property of MegaWeb and shall be deemed to have been imparted by it in trust to the subscriber for the sole use of the subscriber. |
| | 10.2. | All copyright in such documents vests in MegaWeb . Such documents shall be returned to MegaWeb on demand. |
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| 11. Breach |
| 11.1 | | Subject to the provisions of clause 11.2 to the contrary, if either party hereto – | | 11.1.1 | breaches any of the terms or conditions hereof or of any other 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 other party; | | 11.1.2 | commits any act of insolvency; | | 11.1.3 | endeavours to compromise generally with its creditors or does or cause anything to be done which may prejudice the other party’s right hereunder or at all; | | 11.1.4 | allows any judgement against it 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; | | 11.1.5 | 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, |
| | 11.2 | | either party shall have the right, without prejudice to any other right which it may have against the other, to – | | 11.2.1 | treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexplored 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 subscriber until the subscriber has remedied the breach; or | | 11.2.2 | cancel this agreement; |
| | 11.3 | in either event without prejudice to the other party’s right to claim damages. | | 11.4 | 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. | | 11.5 | The subscriber shall be liable for all costs incurred by MegaWeb 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. |
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| 12. No cession |
| 12.1 | Either party 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, and in particular, without derogating from the generality of the a foregoing, the subscriber may not cede to any third party the right of use of the address assigned to it by MegaWeb unless agreed in writing which may not be unreasonably withheld. |
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| 13. Liabilities of partners/signatories |
| 13.1 | If the subscriber is a partnership, then each of the individual partners of the subscriber shall be bound as a partnership as well as in their individual capacities jointly and severally for all the subscriber’s obligations, notwithstanding that only one partner may have signed on behalf of the subscriber. | | 13.2 | The person signing on behalf of the subscriber warrants that he is duly authorised to represent and bind the subscriber to this agreement. |
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| 14. Headings and interpretation |
| 14.1 | The clause headings contained herein are for reference purposes only and shall not be used in the interpretation of this agreement. Words importing any one gender include the other two genders, the singular includes the plural and vice versa, and natural persons include created entities (corporate or unincorporated) and vice versa. |
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| 15. Domcilium citandi et executandi |
| 15.1 | 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, MegaWeb and the subscriber respectively choose their domicilium citandi et executandi (“domicilium) at their respective addresses appearing on the face hereof. 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 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 tenth day after the date of posting or day of delivery as the case may be. |
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| 16. Magistrates’ court jurisdiction |
| 15.1 | For the purpose of all or any proceedings hereunder the parties consent to the jurisdiction of the magistrates’ court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1944, provided, nevertheless, that any party shall have the right at its sole option and discretion to institute proceedings in any other competent court. |
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MegaWeb Internet Services