Dataphone Pty Ltd | Terms & Conditions

DATAPHONE’S STANDARD TERMS AND CONDITIONS FOR THE PROVISION OF ELECTRONIC COMMUNICATIONS SERVICES & PRODUCTS

INTRODUCTION
1. The terms and conditions of service provision and remuneration set out herein below (the “T’s&C’s”) shall apply on all services and/or products offered by DataPhone and subsequently whereby the Consumer opens an online account with DataPhone. The Consumer must therefore take duly note of the content of the T’s&C’s.
2. The following services rendered by DataPhone to the Consumer will continue on a month-to-month basis and will include, but is not limited to:
  1. SIP;
  2. Hosting; and
  3. If applicable, 3CX Licensing.
3. The following services rendered by DataPhone to the Consumer will be a once-off transaction, but can be subject to an annual renewal and will include, but is not limited to:
  1. Number Porting;
  2. 3CX Licencing;
  3. Hardware
4. DataPhone is a licenced provider of the 3CX Hosted Platform.
5. These T’s&C’s will become binding and applicable once a DataPhone Account has been successfully registered via DataPhone’s website (“the Website”).
6. If these T’s&C’s are not understandable, send an e-mail to sales@dataphone.africa or alternatively, visit our website.
DEFINITIONS

This clause 2 sets out the meaning of certain words and phrases, which are used throughout the Agreement.

1. Unless it appears differently from the context or under this clause 2, words, terms and phrases used in the Agreement shall have the same meaning as the definitions set out in the Electronic Communications Act, 36 of 2005 (“the Act”) and under DataPhone’s Individual Electronic Communications Services License. The Act and content related thereto can be viewed on the ICASA website (http://www.icasa.org.za/) under the heading “Legislation”;
2. Words importing the singular shall include the plural and vice versa.
3. Words denoting persons shall include natural human beings, legal entities and unincorporated associations of persons, and vice versa.
4. The headings in these T’s&C’s shall not affect their interpretation.
5. In addition to the above provisions, unless inconsistent with the terms set out under the acts and/or license referred to under clause 2.2 or otherwise indicated by the context, the words and phrases set out below shall mean as follows:
  1. “Act, the” means the Electronic Communications Act 36 of 2005 and any regulations, as may be amended or replaced from time to time, which Act, amongst other things, regulates the telecommunications industry and related sectors and the provision by them of certain electronic communications network services and electronic communication services;
  2. “Agreement, the” means the subscription by the Consumer to the services DataPhone has to offer. It may be in the form of a once-off payment for products in terms of which Dataphone has to supply same or the month-to-month commitment allowing recurring access to the 3CX hosting platforms;
  3. “Authority” means the Independent Communications Authority of South Africa (ICASA) established in terms of section 3 of the Independent Communications Authority of South Africa Act, 2000 and its successors who govern and oversee the telecommunications and electronic communications industry;
  4. “Basic telephone service” means an electronic communications service comprising technical features, which are the minimum necessary to allow the establishment of a telephony channel for the purpose of providing an electronic communications service in order to convey voice grade signals between two items;
  5. “Business Day” means Monday to Friday, excluding Saturday and Sunday and excluding any public holiday as defined under the Public Holiday Act, 36 of 1994;
  6. “Call Credit” means the airtime purchased via the User Portal and Online Account through a dedicated and secure payment gateway to be able to make use of the Services;
  7. “Commencement date” means the date when the Consumer completed and successfully registered the Online Account via the User Portal on our website;
  8. “Connections” means the licensed ECNS Connections, through DataPhone;
  9. “Connection date” means the date when the Online Account has been successfully registered and opened and the required Call Credit has been purchased via the User Portal;
  10. “Consumer” means one who successfully registered an online account via the Website, www.dataphone.co.za and will also include “Subscriber” and “End-user” as defined in section 1 of the Act;
  11. “CPA, the” means the Consumer Protection Act, 68 of 2008, as amended and any regulations published in terms thereof, as amended or replaced from time to time, and shall find application as long as the Consumer/Subscriber/End-user is not exempted in terms of section 5 of the CPA;
  12. “DataPhone” means DataPhone Management (Pty) Ltd, Registration number 2000/015690/07, a private company incorporated in terms of the laws of the Republic of South Africa;
  13. “DataPhone Services” means the electronic communication services, as selected by the Consumer upon registration of the Account, which DataPhone will provide to the Consumer based on these T’s&C’s. These services are referred to as a Raw Service system, so the Consumer needs to do all the setup and installation at own time and expense;
  14. “Electronic Communications” means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conductor/conduit, but does not include content service as defined in section 1 of the Act;
  15. “Electronic Communications Network” or “ECN” means any system of electronic communications facilities, as defined under section 1 of the Act, including without limitation satellite systems, fixed systems (circuit- and packet switched), mobile systems, fibre optic cables (undersea and land-based), electricity cable systems (to the extent used for electronic communications services), and other transmission systems, used for conveyance of electronic communications;
  16. “Electronic Communications Network Service” or “ECNS” means a service as defined under section 1 of the Act, whereby a person makes available an electronic communications network, whether by sale, lease or otherwise, for that person's own use for the provision of an electronic communications service or broadcasting service, to another person for that other person's use in the provision of an electronic communications service or broadcasting service, or for resale to an electronic communications service licensee, broadcasting service licensee or any other service contemplated in the Act, and 'network services' is construed accordingly;
  17. “Electronic Communications Service” or “ECS” means any service provided to the public, sections of the public, the State, or the Consumers to such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services;
  18. “Exchange connection” means the line that connects a main telephone service to an exchange which is also referred to as a private branch exchange line (PBX line) when terminated in a private branch exchange (PBX) or in any other type of telephone system;
  19. “Hardware” means devices such as VoIP telephone units, SIP enabled services, PBX, ADSL, Routers, , sim cards for smartphone, Softphone applications) to make effective use of the DataPhone Services;
  20. “Migration” means the Consumer’s election to change the DataPhone Services received under the Agreement to another, which if accepted by DataPhone will give rise to a review and amendment of the Charges;
  21. “Minimum Service Standards” means the minimum service standards for Consumers and / or End-users and / or Subscribers set by the Authority (ICASA), housed under the Act, titled Regulations Setting Out The Minimum Standards For End-User And Subscriber Service Charters, GNR.774 of 24 July 2009, Government Gazette no 32431, as amended or replaced from time to time;
  22. “Month-to-Month Agreement” means the Agreement, which has been concluded between DataPhone and the Consumer, which will run on a month to month basis for the subscription services offered by DataPhone and renewing automatically;
  23. “Office hours” means DataPhone’s normal business hours, as determined by DataPhone from time to time, currently being Monday to Friday, 07h00 to 16h00, excluding public holidays, Saturdays and Sundays;
  24. “Online Account” means a successfully registered account with DataPhone on the Website. This is done via its User Portal after the Consumer made a voluntary decision to make use of DataPhone’s services and platforms on offer. Once an Online Account is opened and registered Call Credit can be purchased, and access can be gained to the products and services on offer by DataPhone;
  25. “Private branch exchange (PBX) switching unit” means a telephone-switching unit installed on the Consumer’s premises, or intended for such an installation, that is capable of being connected to an Electronic Communications Network by means of one or more exchange connections. Such a unit functions as an intermediary switching device for traffic between exchange Connections and extension circuits of the PBX (extensions), or between those extensions;
  26. “Parties” means collectively, DataPhone and the Consumer;
  27. “Personal Data” means all personal details conveyed to DataPhone by the Applicant/Consumer such as his/her identity, whereabouts, credit levels, financial status, earning capabilities, family members, likes, preferences and dislikes, which are required in order to process the application and required to determine current and future Consumer requirements;
  28. “Regulations” means any regulations promulgated in terms of section 95 of the Act;
  29. “Renewal” means the recurring deduction to be made against the Consumer’s banking account, only for those subscription services, including but not limited to SIP/VoIP Line and 3CX Cloud Hosting, to continue on a Month-to-Month basis. Call Credit is excluded from automatically renewing monthly and has to be repurchased by the Consumer as and when required.;
  30. “RICA” means the Regulation of Interception of Communication and Provision of Communication Regulated Information Act 70 of 2002, as amended/replaced from time to time, and its related provisions, which apply to DataPhone and to the Consumer, although it is the Customer’s full responsibility to comply where required;
  31. “SIP Trunks” enables the end point's PBX to send and receive calls via Internet. As SIP is applied for the signalling protocol for multiple real-time application, SIP trunk is able to control voice, video and messaging applications;
  32. “Softphone” means a software telephone which is an application program that enables voice over Internet Protocol (VoIP) telephone calls from computing devices. In the enterprise, softphones are sometimes referred to as soft clients.
  33. “Tariff List” means the list of Charges levied by DataPhone in respect of the DataPhone Services and where applicable the Hardware, as amended from time to time, and payable to DataPhone by the Consumer. The Tarrif List will include those prices indicated on the User Portal or the Website;
  34. “User Portal” means the web-based platform on which the Consumer can manage its Online Account and purchase additional Call Credit, subscription services or Hardware;
  35. “Website, the”means www.dataphone.co.za.
6. The Consumer is to note that the provisions of the Electronic Communications and Transactions Act, 25 of 2002 (ECTA) shall apply, the Parties expressly agreeing:
  1. that where a provision of the Agreement requires that a document must be signed or initialled, that signing or initialling may be effected in any manner recognized by law, including the use of an electronic signature, as defined in ECTA; DataPhone/ in this regard will take reasonable measures to prevent the use of the Consumer’s electronic signature for any purpose other than the signing or initialling of the particular document that the consumer intended to sign or initial; and
  2. that where anything is required to be in writing, unless expressly stipulated to the contrary by DataPhone, any electronic communication, including an SMS, telephonic call or electronic message such as an email, exchanged between the Parties, will meet this requirement.
7. The Consumer is to note that when a particular number of days is provided for between the happening of one event and another, the number of days must be calculated by: -
  1. excluding the day on which the first such event occurs;
  2. including the day on or by which the second event is to occur; and
  3. excluding any public holiday, Saturday or Sunday that falls on or between the days contemplated in clauses 17.1 and 1.7.2, respectively.
EXCLUSION OR LIMITATION OF LIABILITY CLAUSES
1. In terms of section 49 of the Consumer Protection Act, 2008 (“the CPA”), DataPhone has housed certain clauses which contain limitations herein.
2. The content of these clauses is in CAPITAL LETTERS.
AMENDMENT OF THE DATAPHONE STANDARD TERMS AND CONDITIONS
1. DataPhone reserves the right to amend its standard terms and conditions from time to time, and where relevant and in so far as these amendments may relate to a Consumer, as defined, subject to the provisions of the CPA.
2. DataPhone will place the amended terms and conditions on the DataPhone website (www.DataPhone.co.za) which amendment, from date of such filing, if required by law, will thereafter be deemed to be incorporated into the Agreement and bind the Consumer from the date that the amendment has been filed or published on DataPhone’s website.
WARRANTY BY CONSUMER

THE CONSUMER WARRANTS AND REPRESENTS THAT ALL INFORMATION SUPPLIED BY IT IN APPLYING FOR THE DATAPHONE SERVICE IS TRUE, CORRECT AND COMPLETE AND INDEMNIFIES AND HOLDS DATAPHONE HARMLESS AGAINST ALL CLAIMS, OF WHATSOEVER NATURE, THAT ARISE, DIRECTLY OR INDIRECTLY, AS A RESULT OF THE APPLICANT OR ITS AGENT PROVIDING DATAPHONE WITH ANY INCORRECT INFORMATION.

PROCESSING OF PERSONAL INFORMATION AND RIGHTS TO PRIVACY
1. Although DataPhone respects you, the Consumer’s privacy and to this end your right not to have your personal data misused or distributed to other persons, you, the Consumer must comply with the provisions of RICA, which is a law which requires that bodies such as DataPhone verify your details before they are able to provide you with a communication service or device. This clause sets out DataPhone’s undertaking to protect and respect your personal data and not to misuse it.
2. DataPhone will use the Consumer’s information strictly in accordance with the Regulations promulgated in terms of Section 69 of the Act and undertakes to process and use the personal data only for the purpose for which it has been collected and undertakes that this processing will be carried out in accordance with any notice, consent or other requirement which may be required by any applicable law in force in South Africa from time to time. DataPhone furthermore will use the Consumer’s information strictly in accordance with the provisions housed under its DataPhone Individual Communications Service License.
3. THE CONSUMER ACKNOWLEDGES AND ACCEPTS THAT WHERE IT DOES NOT COMPLY WITH THESE PROVISIONS THAT THIS WILL AMOUNT TO A MATERIAL BREACH BY THE CONSUMER OF THIS AGREEMENT WHICH WILL ALLOW DATAPHONE TO CANCEL THE AGREEMENT AND TO CLAIM DAMAGES, IF ANY.
DURATION, RENEWAL AND TERMINATION FOR NO CAUSE

The clause sets out how long the Agreement will run for and your rights to cancel the Agreement.

1. Notwithstanding the Connection date, the Agreement will start on the Commencement date and will carry-on on a Month-to-Month basis, as selected by the Consumer upon registration, save for where the Agreement is terminated earlier by either of the Parties in accordance with their respective rights set out under this Agreement.
2. Should a Consumer fail to notify DataPhone, in writing, of its election to terminate the Agreement, 5 (five) Business Days prior the next deduction date, the supply of DataPhone services shall rollover to the following month, until terminated accordingly.
3. Termination for no particular reason or cause, at any time, provided the Consumer gives DataPhone at least 5 (five) Business days prior the date upon which the next month’s deduction will be made by the payment gateway, written notice of its election to terminate the Agreement.
PROVISION OF THE DATAPHONE SERVICES

This clause sets out the type and quality of DataPhone Services which DataPhone has agreed to provide you, the Consumer with, who bears the risk of any misuse of the DataPhone Services and what will happen when the DataPhone Services are interrupted due to events/incidents which is beyond DataPhone’s control. It also covers your right to change the DataPhone Service, and DataPhone’s right to change your number or the DataPhone Services where required.

1. The DataPhone Service, including any basic telephone service, is:
2. FOR THE USE AND ENJOYMENT OF THE DATAPHONE SERVICES WHICH IS NOT PROVIDED BY DATAPHONE, THE CONSUMER WILL BE RESPONSIBLE FOR INSTALLING SUCH SERVICE AT ITS OWN RISK, COST AND EXPENSE.
3. DATAPHONE RESERVES THE RIGHT TO DISCONNECT FROM THE ECN OR NETWORK AND SUSPEND OR TERMINATE, WITH IMMEDIATE EFFECT, THE DATAPHONE SERVICE, WHERE ANY SERVICE THAT HAS NOT BEEN APPROVED BY THE AUTHORITY OR THAT HAS BEEN LICENSED OR APPROVED BUT HAS BEEN MODIFIED WITHOUT THE APPROVAL OF THE AUTHORITY IN TERMS OF SECTION 35 OF THE ACT HAS BEEN USED IN CONNECTION WITH THE DATAPHONE SERVICES OR WHERE THE SERVICE HAS BEEN INCORRECTLY INSTALLED OR CONNECTED TO THE CONNECTIONS AND THE CONSUMER INDEMNIFIES DATAPHONE AGAINST ANY LIABILITY, LOSS OR DAMAGE WHICH DATAPHONE AND/OR THE CONSUMER MAY INCUR AS A RESULT OF THE UNLAWFUL OR INCORRECT USAGE OF SUCH SERVICE OR THE INCORRECT INSTALLATION OF THE SERVICE, WHAT EVER THE CASE MAY BE.
4. THE CONSUMER MUST AT ITS OWN COST AND EXPENSE ENSURE THAT OPTIMUM ENVIRONMENTAL CONDITIONS AS MAY BE REQUIRED FOR THE PROPER MANAGEMENT AND/OR FUNCTIONING OF THE CONNECTIONS AND THE DATAPHONE SERVICES ARE PROVIDED, SUCH AS ADEQUATE VENTILATION, LIGHTING AND WALL/RACK SPACE.
5. WHILST DATAPHONE PROVIDES THE SERVICES HEREIN, DATAPHONE HEREBY EXPRESSLY ADVISES THE CONSUMER THAT DATAPHONE DOES NOT OPERATE IN ISOLATION BUT INSTEAD RELIES ON FUNCTIONALITIES, EQUIPMENT AND/OR INFRASTRUCTURE WHICH ARE PROVIDED BY A NUMBER OF SERVICE PROVIDERS WHO PROVIDE SEPARATE BUT INTERRELATED AND CONNECTED SERVICES WHICH AS A WHOLE, ALLOWS THE ECN/NETWORK TO FUNCTION. THESE SERVICE PROVIDERS OPERATE AS INDEPENDENT SERVICE PROVIDERS WHO ARE NOT NECESSARILY CONTRACTED BY DATAPHONE AND THE CONSUMER ACCEPTS AND ACKNOWLEDGES THIS FACT.
6. WHILST DATAPHONE WILL COMPLY WITH AND MEET THE MINIMUM SERVICE STANDARDS AND USE ITS BEST ENDEAVOURS TO ENSURE THAT THE DATAPHONE SERVICES AND ANY HARDWARE ARE OPERATIONAL AT ALL TIMES, DATAPHONE DOES NOT WARRANT THAT THE DATAPHONE SERVICES WILL BE OPERATIONAL ON A 24 (TWENTY FOUR) HOUR 365 (THREE HUNDRED AND SIXTY FIVE) DAYS PER YEAR BASIS, THIS BEING DUE TO THE NATURE OF THE TELECOMMUNICATIONS INDUSTRY AND THE NETWORK, WHICH IS DEPENDENT ON THE ACTIONS AND/OR INPUT OF A NUMBER OF INDEPENDENT SERVICE PROVIDERS WHOM DATAPHONE HAS NO DIRECT CONTROL OVER.
7. DataPhone will use its best endeavours to notify the Consumer in advance of any failure of, or interruption to the DataPhone Services or the Connections and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where DataPhone is in a position to do this.
8. DATAPHONE IN ADDITION EXPRESSLY ADVISES AND THE CONSUMER ACKNOWLEDGES AND ACCEPTS THAT THE HARDWARE ARE NOT MANUFACTURED BY DATAPHONE BUT ARE MANUFACTURED BY THIRD PARTIES. IN MOST CASES, DUE TO THE PROVISIONS OF THE ACT READ TOGETHER WITH THE AUTHORITY CODE OF PRACTICE AND GUIDELINES, DATAPHONE WILL NOT BE IN A POSITION TO OPEN THE HARDWARE OR TO TEST OR OPERATE SAME TO ENSURE THAT THEY ARE FIT FOR PURPOSE AND / OR ARE INTACT.
9. DATAPHONE EXPRESSLY STIPULATES AND THE CONSUMER ACKNOWLEDGES THAT DATAPHONE CANNOT WARRANT OR GUARANTEE THAT THE DATAPHONE SERVICES WILL:
  1. AT ALL TIMES BE FREE OF ERRORS OR INTERRUPTIONS;
  2. ALWAYS ARE AVAILABLE;
  3. BE FIT FOR ANY PURPOSE;
  4. NOT INFRINGE ON ANY THIRD-PARTY RIGHTS;
  5. BE SECURE AND RELIABLE.
10. In relation to clause 8.6 above, in respect of "dropped" or discontinued calls and/or connections or any temporarily unavailability of the DataPhone Services, the Connections, including but not limited to, extra traffic on the Network, excessive use by users or technical problems which result in line congestion, fatigue and the general unavailability of the Network, or failure and in such case the Consumer’s remedies will be limited and will only be able to inform DataPhone of any such disruptions to attempt to have the defect remedied by DataPhone through them contacting the Independent Service Provider. having regard to the extent of the failure and DataPhone’s responsibility.
11. Furthermore, where the Connections or the Hardware are defective, or faulty, then in such an event the Consumer’s rights will be limited to those set out under clause 10.
12. Notwithstanding anything to the contrary contained in the Agreement, the Consumer acknowledges that it does not own the telephone number that is allocated to it in respect of the DataPhone Service, which number is owned by the Authority and which has been allocated to DataPhone as per the provisions of the Act.
13. DataPhone reserves the right to change any number within the existing numbering plan, code, password, user identity or name allocated by DataPhone from time to time for use in connection with the DataPhone Services, the Hardware or SE which change has been necessitated by the Authority who owns the number range and/or where DataPhone may have to change the aforementioned numbers if it changes its technology and/or due to other operational requirements and/or where a Consumer moves to another location which falls within a different exchange area and this necessitates a change to the numbering scheme. Adequate notice where possible will be provided to the Consumer of the number change, the reasons therefore and the new number.
14. DATAPHONE WILL NOT BE LIABLE TO THE CONSUMER OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE OR COSTS (DIRECT, CONSEQUENTIAL OR OTHERWISE) WHICH MAY BE INCURRED IN CONSEQUENCE OF ANY CHANGE TO THE NUMBER AS ANTICIPATED AND SET OUT IN THIS CLAUSE 8.
CHARGES AND PAYMENT

This clause sets out the Charges which DataPhone is entitled to levy in respect of the use of the DataPhone Services and Hardware which you, the Consumer, have asked DataPhone to provide you with, its right to ask for a deposit and how the invoice will be paid by yourself once you receive it.

1. In return for the supply of and access to the DataPhone Services, the Consumer agrees and undertakes to pay to DataPhone the Charges incurred whilst subscribing to the Services offered and thus accepted by the Customer as per the Tariff List (prices as indicated on the User Portal or on the Website) or as advised by DataPhone and as set out under the Invoice.
2. Payment to be effected by the Consumer by either Credit Card purchase, Direct Debit or instant EFT (Electronic Fund Transfer).
3. For the avoidance of doubt the following Charges, where applicable, shall be levied by Dataphone:
  1. maintenance charges: levied periodically, usually on a monthly basis, or on performance, depending on the type of maintenance contract, for maintenance of the DataPhone Services and or Hardware that DataPhone has contracted to provide to the Consumer and which are not covered by the rental charge, which amounts are payable in advance for the first and any subsequent maintenance period, as from the date on which the maintenance contract is signed, or as performed, as the case may be;
  2. cancellation fee: levied to recover any costs incurred by DataPhone in respect of the Consumer electing to terminate the Agreement as per the provisions of clauses
  3. call/usage charges: levied on the use of the DataPhone Service or on any element thereof, where such use is metered. Calls are metered from the moment that a connection is established up until the moment it is terminated. Call charges are deducted from the Call Credit purchased by the Consumer until such Call Credit is depleted and new credit is purchased. Charges are therefore levied on a prepaid basis;
  4. Migration Costs: levied in respect of any agreement reached by the Parties in respect of a Migration by the Consumer; and
  5. VAT: value added tax levied on the Charges as required under the Value-Added Tax Act 89 of 1991.
4. If and where applicable, DataPhone determines that the disputed amount is in error, DataPhone shall reverse the amount incorrectly debited, on the Consumer’s next Invoice. Should DataPhone, however, determine and inform the Consumer that the disputed amount was billed correctly, such, payment together with interest at the Interest rate on the overdue amount shall be paid by no later than the Due date of the next Invoice.
5. The Consumer is liable for the payment of all Charges as reflected in the Invoice, extraordinary Invoice or interim Invoice, as the case may be.
6. DataPhone Services is subject to an annual increase. The Consumers shall be notified of such annual increase 30 days before it is given effect to.
DEFECTS, LIABILITY, WARRANTIES, REPAIRS AND SUSPENSION OF THE DATAPHONE SERVICE
1. Consumer’s implied warranty on Hardware
  1. DataPhone expressly stipulates and the Consumer acknowledges that DataPhone provides the Hardware in a sealed package and hence it will not have been able to ascertain if the Hardware is free from defect or in good order and condition. In other words DataPhone cannot warrant or guarantee that the Hardware will at all times be available, suitable for the intended purpose, are of good quality and in good working order, free of defects, free of errors or interruptions, fit for any purpose, do not infringe on any third party rights, or that they are secure and reliable.
  2. Notwithstanding the above exclusions, should the Hardware including the software and battery used in connection with the Hardware, fall short of the standards set out under section 55(2) of the CPA, and such defect or fault becomes apparent within 6 (Six) months after the Hardware has been delivered by DataPhone to the Consumer, then the Consumer must immediately notify DataPhone of the defect and /or failure and bring the Hardware to a nominated DataPhone repair centre.
  3. No return will be accepted by DataPhone unless the Consumer returns the complete unit of the Hardware including packaging, accessories (including but not limited to CD’s containing software, manuals, AC Adapter (charger) and any other inclusive part of the Hardware) and can and does provide proof of purchase of the Hardware from DataPhone, which must be in the form of a sales record or Invoice. The Consumer must retain the packaging for the warranty period as stipulated by the manufacturer. DataPhone will not be responsible for ordinary wear and tear on the SE or negligence on the part of the Consumer having given rise to the SE defect.
  4. On return of the Hardware, the Consumer must:
    1. describe what caused the Hardware to malfunction or to stop functioning; and
    2. allow the DataPhone representative to inspect the Hardware for physical damage and/ or signs of liquid damage.
  5. The acceptance of the returned SE by DataPhone is subject to the following terms and conditions:
    1. acceptance of the Hardware is on behalf of the manufacturer and is not an admission of liability by DataPhone, or DataPhone acting on behalf of its suppliers or manufacturers, that the Hardware is defective or that it is not in accordance with the standards as set out in section 55(2) of the CPA;
    2. DataPhone will notify the Consumer as soon as is reasonably possible and within the prescribed period set out under sub clause 10.1.5.1 read together with the periods set out under the Minimum Service Standards of the results of any inspection and/or analysis and the cause of the defect and/or failure and whether DataPhone or the manufacturer of the Hardware accepts responsibility or not for such defect and or failure.
  6. Where on inspection it has been found that the Hardware is not in accordance with the standards set out in section 55(2) of the CPA as the case may be, and still under warranty, see clause 10.2 below, then DataPhone, either itself, or on behalf of the supplier and / or manufacturer of the Hardware will either, at the option of the Consumer:
    1. repair or replace the failed, unsafe or defective part of the Hardware; or
    2. instead, at the election of the Consumer, refund to the Consumer the price paid by the Consumer, for the returned Hardware, less any reasonable charges.
  7. Where any returned Hardware are found to fall outside of the minimum warranty period set out under section 55(2) of the CPA where applicable, then the supplier, manufacturer and in particular DataPhone will have no further responsibility or liability in relation to the returned Hardware, save that it has the right to offer to repair, at the Consumer’s cost, the Hardware and subject further to the following conditions:
    1. any acceptance of the Hardware for repairs and maintenance will be done on or under the condition that DataPhone is acting as an agent on behalf of the manufacturer or local supplier of the Hardware; and
    2. DataPhone will not be liable for any loss, damage, destruction, theft or negligent workmanship howsoever or by whomsoever caused to the Hardware whilst under the manufacturer or local supplier’s control who is performing the repair or maintenance work; and
    3. the costs of any such maintenance or repair work, which will be quoted for before commencement of the service and or repair work, will once accepted by the Consumer, be for the Consumer’s account.
2. Consumer’s warranty on Hardware
  1. Where the Consumer is of the view that the Hardware is faulty, then the Consumer must immediately notify DataPhone of the extent of the defect and /or failure.
  2. Upon receipt of the complaint DataPhone will notify the Consumer where to take the faulty Hardware for the purposes of inspecting the Hardware, which is faulty or defective.
  3. The acceptance of any returned goods by DataPhone in terms of this clause 10.2.3, is subject to the following terms and conditions:
    1. the Hardware will be sent to the DataPhone technical centre for further examination, and analysis, which will take no longer than 3 (three) weeks or such a longer period as notified by DataPhone;
    2. acceptance of the Hardware is on behalf of the manufacturer and is not an admission of liability by DataPhone, or DataPhone acting on behalf of its suppliers or manufacturers, that the Hardware is defective;
    3. DataPhone will notify the Consumer as soon as is reasonably possible and within the prescribed period set out under sub clause 10.2.3.1 of the results of any inspection and/or analysis and the cause of the defect and/or failure and whether DataPhone or the manufacturer accepts responsibility or not for such defect and/or failure;
    4. Where on inspection it has been found that the Hardware is defective and is covered under the manufacturer’s warranty, then DataPhone will submit on behalf of the Consumer to the supplier and / or manufacturer the defective Hardware for repair and/or replacement as per the standard manufacturer’s warranty;
    5. Where any returned Hardware are found to fall outside of the manufacturer’s warranty, then the supplier, manufacturer and in particular DataPhone will have no further responsibility or liability in relation to the returned Hardware.
3. Suspension and Withdrawal of the Selected DataPhone Service and or Hardware
  1. DataPhone may from time to time, and on notice where this is possible, or without notice where this is not possible, suspend the DataPhone Service in any of the following circumstances:
    1. for modifications to, or planned maintenance of the ECN;
    2. for routine maintenance of international facilities;
    3. if the Consumer has failed to pay any amounts due to DataPhone by the due date as reflected in the Invoice;
    4. where the DataPhone Services are suspended or discontinued as a result of 3rd parties experiencing problems on their infrastructure which has affected or disrupted the DataPhone Service;
    5. where certain DataPhone Services are being abused by the Consumer or by Consumers in general; and/or
    6. where the DataPhone Service or Hardware is found to contain a security risk or shortcoming which enables the Consumer to exploit the DataPhone Service to the detriment of DataPhone;
  2. The Consumer accepts that the rights to suspend the DataPhone Services and or Hardware are necessary in order to protect the interest of both the Consumer and DataPhone and that during such period of suspension, despite the fact that limited or no DataPhone Services will be available, that it will nonetheless in these circumstances remain liable for all Charges due which may be levied by DataPhone during the period of suspension.
  3. No interruption of the DataPhone Service referred to under clause 10.3.1 shall be deemed to have occurred during any modifications and/or maintenance window or any authorised suspension of a service and the Consumer acknowledges that it shall have no claim against DataPhone in respect of all or any of the interruptions described under clause 10.3.1, save that the Consumer will in the case of the circumstances set out under clauses 10.3.1.1, 10.3.1.2, and 10.3.1.4 be entitled to receive a reduction of the Charges levied by DataPhone on a pro rata basis, taking into consideration the length and severity of the suspension or unavailability.
  4. DataPhone may from time to time, and on notice where this is possible, or without notice where this is not possible, and without prejudice to any other claims or remedies, which DataPhone may have in terms hereof or in law, discontinue or terminate any part of the DataPhone Service and where applicable the right to use the Hardware, or in its discretion disconnect the Hardware from the ECN in any of the following circumstances:
    1. where the DataPhone Service or Hardware is found to contain a defect, which enables the Consumer to exploit the DataPhone Service to the detriment of DataPhone;
    2. where the DataPhone Service or Hardware has reached the end of its lifespan and is uneconomical to maintain or continue;
    3. where it is unduly burdensome and/or unfeasible for DataPhone to provide such services, or
    4. where there has been an insignificant interest in the use of a particular DataPhone Service or Hardware; and/or
    5. in response to an instruction from the Authority or in terms of the Act or some other law or body the DataPhone Service or Hardware or SE is discontinued.
    6. where the Consumer uses Service that is not approved by the Authority for such use;
    7. if the Consumer has received the DataPhone Service as a result of fraud or misrepresentation;
    8. if the Consumer uses in connection with the DataPhone Service, SE that belongs to DataPhone but which the Consumer has obtained illegally;
    9. if the Consumer makes or offers to make any arrangement or composition with its creditors or commits any act of insolvency in terms of the Insolvency Act or any other applicable legislation;
    10. if the Consumer does or allows to be done any act or omission, which in DataPhone’s opinion will or may have the effect of negatively affecting the operation of the DataPhone Service or the ECN;
    11. if the Consumer is using, or permitting the use of the DataPhone Service or any element thereof for any illegal purpose or in contravention of the Act, CPA and/or any act of Parliament;
    12. if DataPhone has been instructed to do so by any authority competent to issue such instruction;
    13. where the DataPhone Service is provided as a dedicated private international circuit, DataPhone may terminate the service immediately where any remote portion of the circuit is suspended or terminated by the foreign service provider;
    14. for any other reason incidental to 10.3.4.1 - 10.3.4.14 inclusive.
  5. The Consumer accepts that the rights to terminate or discontinue the Services are necessary in order to protect the interest of both the Consumer and DataPhone and that where any such Service or Hardware is discontinued that the Consumer will be entitled to receive a reduction of the Charge levied by DataPhone pro rata to such discontinuation or termination.
  6. Where a DataPhone Service is discontinued or suspended, as per this clause 10.3 then the Consumer agrees that it will not:
    1. withhold any amounts which are, or which may become due and owing to DataPhone;
    2. deduct any monies from the Charges, save for the amounts which DataPhone may agree to as per the provisions of clause 10.3.5 above; and/ or
    3. demand any refund or bring any action for damages or otherwise against DataPhone, in respect of any such discontinued service.
LIMITED LIABILITY AND INDEMNITY

This section sets out DataPhone’s liability in respect of the DataPhone Services, the Hardware or the SE, which you, the Consumer, should take careful note of.

1. DataPhone only provides access to the Internet. DataPhone does not operate or control the information, services, opinions or other content of the Internet, and DataPhone makes no warranties or representation regarding any such information, services, opinions or other content; therefore:
  1. The Consumer agrees that it shall make no claim whatsoever against DataPhone relating to the content of the Internet or respecting any information, product, service or software ordered through or provided by virtue of the Internet.
  2. DataPhone reserves the right to take measures as may be necessary, in DataPhone’s sole discretion, to ensure security and continuity of service on the DataPhone network, including but not limited to identification and blocking or filtering of internet traffic sources which DataPhone deems to pose a security risk or operational risk or a violation of its acceptable use policy.
  3. In addition, the Consumer understands that DataPhone does not own or control other third party networks outside of the DataPhone network, and DataPhone is not responsible or liable for filtering or access restrictions imposed by such networks or for the performance (or non-performance) within such networks or within interconnection points between DataPhone network and other third party networks.
2. The provision of the DataPhone Internet access is further subject to the Internet Terms and Conditions as well as the acceptable use policy as available on the DataPhone web site (www.DataPhone.co.za).
3. The Consumer is responsible for maintaining the security of its internal network from unauthorised access through the Internet. DataPhone shall not be liable for unauthorized access to the Consumer’s network or other breaches of the Consumer’s network security.
4. The limitation on liability set out above is addition to any limitation of liability set out elsewhere under the Agreement.
CONSUMER ASSISTANCE, COMPLAINTS AND DISPUTES

This section sets out how you, the Consumer, can contact DataPhone for assistance and how you must lodge a complaint, should one arise.

1. DataPhone provides Consumer care to all Consumers during Office hours, excluding times when it is unable to assist due to reasons beyond its reasonable control.
2. The Consumer must, once it experiences any trouble with any of the DataPhone Services and/or Selected Consumer Equipment bring the suspected problem to DataPhone’s attention by contacting the relevant Consumer care office via the following email address: support@dataphone.africa. The suspected problem will then be logged and detailed, and the Consumer will be provided with a reference number.
3. DataPhone will use its best endeavours to attend to the complaint as soon as it is possible, which will depend on the complexity and nature of the suspected problem, as logged, as well as resource/manpower availability, but subject always to the minimum service standards set out under the Minimum Service Standards.
4. Where a Consumer is of the view that the matter has not been resolved to the satisfaction of the Consumer, the Consumer will have the right to elevate the matter to the Authority, which can be done by contacting either:
  1. the complaints website http://www.icasa.org.za and selecting the tab “complaints”; or
  2. by email at Consumers@icasa.org.za.
5. The above rights set out under clauses 12.1 to 12.4 are without prejudice to both parties’ respective rights to pursue a complaint or action in any other forum, which has jurisdiction over the matter including the rights to submit the complaint, dispute or action to the National Consumer Commission or to arbitration.
BREACH AND TERMINATION

This section sets out what will happen when one of the parties to the Agreement fails to comply with the terms and conditions, which is known as a breach of the agreement which will allow the party who has not breached the agreement to cancel the Agreement and claim damages.

1. Should either Party breach any term of this Agreement, then the aggrieved Party shall give the defaulting Party 5 (five) Business Days’ notice to rectify the breach. Should the defaulting Party neglect or fail to rectify the breach within the 5 (five) Business Days’ notice period, then aggrieved Party will have the right to either suspend or to cancel the Agreement, without prejudice (meaning to preserve your respective rights and positions) to the aggrieved Party’s rights to claim all and any damages which the aggrieved Party has incurred in consequence of such breach.
2. Should the Consumer be sequestrated, liquidated, DataPhone shall be entitled to immediately cancel this Agreement upon notice to the Consumer.
3. The Consumer agrees that DataPhone may register the details of the manner in which payments have been conducted by it or its agent, with any registered credit bureau.
4. The Consumer shall be liable for all costs, including legal costs on an attorney and client scale, and tracing cost and collection commission incurred by DataPhone in respect of the enforcement of any obligations of the Consumer in terms of this Agreement and in the case of a Consumer, subject to the provisions housed under Regulation 44 (3) (aa) of the CPA.
CONSEQUENCES OF ANY TERMINATION

After termination of the Agreement for whatever reason the Consumer will remain liable for and will pay on demand all charges and/or costs outstanding at the time of termination or accrued thereafter because of the termination.

LEGAL ADDRESS FOR SERVICE (DOMICILIUM AND NOTICES)
1. The parties choose the addresses set out below as their chosen place to receive legal notices (domicilium citandi et executandi)
  1. DataPhone (Pty) Ltd, Unit 10, Oxford Office Park, 3 Bauhinia Street, Highveld, Centurion, and
  2. the Consumer at the physical address specified in the Online Account information.
2. All notices given in terms of this Agreement shall be in writing.
GENERAL
1. Consumer status

In consequence of the CPA, certain rights have been granted to a Consumer who is a Consumer, as defined under the CPA. DataPhone reserves the right to withhold any of these rights and / or resultant benefits until such time as the Consumer is able to prove to DataPhone, which proof may be in the form of a set of financial statements or an identity document, that it is a Consumer / and or in the case of a right which it is wanting to exercise under section 14 of the CPA, that it is a natural person. Where the Consumer is unable to show that it is a natural person, in such an event DataPhone reserves the right to reverse or call for restitution (a refund) of any rights or benefits which are permitted under the CPA and which the Consumer has unlawfully taken advantage of.

1. Consumer details and changes thereto

The Consumer agrees to supply DataPhone with such information, documentation and signatures that DataPhone may reasonably require at the time that the Agreement is concluded, in order to give effect to the payment arrangements of the Agreement. Any subsequent changes that affect the information supplied to DataPhone such as bank account, legal service address referred to under clause 16 and credit card details must be brought to the immediate attention of DataPhone by the Consumer in writing.

1. Cession

DataPhone shall be entitled to transfer (cede) its rights and/or to delegate its obligations arising from the Agreement and/or (hand over) assign the Agreement, wholly or partly, to any third party and it will give the Consumer reasonable notice of this fact. The Consumer shall not be entitled to cede, assign, encumber or delegate his obligations arising out of the Agreement without the prior written consent of DataPhone, which will not be unreasonably withheld.

1. Variation and Amendment

Subject to and save where the right to amend the Agreement, has been specifically mentioned under the Agreement, neither party may vary the terms of the Agreement unless the other party agrees to such variation and the variation is reduced to writing and signed by both parties.

1. Whole Agreement

This document read with the relevant application form (which is deemed incorporated herein by reference), contains the sole and entire record of the Agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein or otherwise created by operation of law and no indulgence, leniency or extension of time which either party ("the grantor") may grant or show to the other, shall in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.

1. Authority

Where DataPhone is represented by any duly authorised representative, DataPhone’s authority need not be proved.

1. Unsolicited marketing and right to opt out

The Consumer understands that, in terms of section 45 of the Electronic Communications, Transactions Act 25 of 2002, and Protection of Personal Information Act (when enacted) the Consumer and in terms of the provisions of the CPA in the case of a Consumer, the Consumer or the Consumer has the option to request DataPhone to remove its relevant contact particulars from its data base in respect of direct marketing and / or unsolicited commercial and/or marketing communications by DataPhone.

1. Severability

In the event of any one or more of these T’s&C’s being unenforceable, these clauses will be deleted and severed from the remainder of the Agreement, which will nevertheless continue to apply, be binding and enforceable.

1. Acts of God

Except as specifically provided under the Agreement, DataPhone shall not be liable to the Consumer for any breach of these conditions or failure to perform any obligation as a result of any force majeure (event beyond its reasonable control) event, including but not limited to technical problems relating to the Network, acts of God, Government controls, restrictions or prohibitions or any other Government act or omission, whether local or national, any act or default of any supplier, agent or sub-contractor, industrial disputes, strikes, lockouts or work stoppages of any kind or any other similar or dissimilar cause, in so far as these are beyond DataPhone’s reasonable control.

1. Indulgence and relaxing

The failure of DataPhone to enforce at any time the Agreement or any part thereof, or any right with regard thereto, must in no way be construed to be a waiver of the provision of the Agreement or to be an estoppel or novation or in any way to affect the validity of the Agreement. Any indulgence towards the Consumer or the relaxing of the provisions of the Agreement must not prejudice the right of DataPhone to insist on the strict compliance by the Consumer of its undertakings and obligations in terms of the Agreement.

1. Intellectual property rights

Any intellectual property rights vesting in DataPhone, whether by statute or common law, will remain vested in DataPhone and the Consumer agrees not to do anything or allow anything to be done that may infringe DataPhone's rights and the Consumer hereby INDEMNIFIES DataPhone against any claims, actions and proceeding that may arise as a result of the Consumer infringing or violating DataPhone’s intellectual property rights.

1. Applicable laws and Jurisdiction

This Agreement will be interpreted and governed by the Laws of South Africa.