Terms and Conditions
IMPORTANT NOTICE
Your attention is drawn in particular to clauses rendered in bold capitals in these terms and note must be taken of the fact that these Terms & Conditions form part of the Agreement between you and Tellcorp. It is your responsibility to read and ensure that you understand the clauses contained herein:
1.1 “Tellcorp” means Tellcorp1208 (Pty) Ltd or any other entity/agent which Tellcorp (Pty) Ltd may assign, cede or delegate any of their rights or obligations to.
1.2″ Tellcorp System” means equipment operated together as a system by Tellcorp to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.
1.3 “Tellcorp Website” means the Internet website published at the URL “https://www.tellcorp.co.za/” or any other URL that Tellcorp notifies the Client of from time to time.
1.4 “Agreement” means these General Terms, Acceptable Use Policy, and applicable Service Terms, Service Orders and all annexures to any of these documents.
1.5 “Application” means a request for initiation of a Service(s) and/or provision of Good(s);
1.6 “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa.
1.7 “Business Hour” means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
1.8 “Client” is the party described as such on any Application or Service Order executed between it and Tellcorp.
1.9 “Customer Data” means Data:
1.9.1 transmitted to the Customer using the Tellcorp System,
1.9.2 stored by the Customer on the Tellcorp System (or on the Customer System as the case may be), or
1.9.3 transmitted by the Customer via the Tellcorp System,
1.9.4 in the day-to-day utilization of a Service.
1.10 “Customer Equipment” means any equipment installed at Tellcorp’s premises by the Customer that Tellcorp does not own, including without limitation servers, peripherals, routers, switches, Software, Databases, Data cables, and uninterruptible power supplies.
1.11 “Data” means electronic representations of information in any form.
1.12 “Database” means a collection of related data including, but not limited to, text, images sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
1.13 “Domain” means an Internet subdomain registered with an authorized registrar appropriate to its top-level domain (“TLD”) and comprising its constituent domain name server records including, but not limited to, hostnames, aliases and mail exchange (“MX”) records.
1.14 “Emergency Maintenance” means maintenance to the Tellcorp System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Communication Services, or substantial loss to Tellcorp, the Customer or any third party.
1.15 “Fee” in respect of each Service will be as noted in the Fee Schedule provided to the Customer on the initiation of the Service and may be adjusted from time to time.
1.16 “Goods” means any and all goods to be provided by Tellcorp to the Customer in terms of this Agreement, including without limitation equipment, hardware and third-party software.
1.17 “Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
1.18 “Intellectual Property Rights” means patents, registered designs, trademarks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, those similarly granted rights.
1.19 “Malicious Code” means anything that contains any computer software routine or code intended to:
1.19.1 allow unauthorized access or use of a computer system by any party, or
1.19.2 disable, damage, erase, disrupt or impair the normal operation of a computer system,
1.19.3 and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
1.20 “Multi-Factor Authentication” refers to the process of establishing a user’s identity using several concurrent means of verification such as one-time pin, security questions or other forms of validation.
1.21 “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2003.
1.22 “Services” generally means internet services and access but for each specific Service offering the meaning will be specified in more detail, as provided in the additional terms for each of the listed options.
1.23 “Service Order” means a goods, license, services and/or work order agreed to in terms of this Agreement describing the specific Goods or Services to be provided by Tellcorp to the Customer.
1.24 “Service Terms” means a document describing the terms on which Tellcorp will provide a particular Good or Service, as amended from time to time.
1.25 “General Terms” means this document.
1.26 “Software” means any computer program (whether source- or object code), as well as any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, the user or technical documentation or any other work created in connection in addition to that and any modifications, enhancements or upgrades to that.
1.27 “Supplier” means a supplier of goods and/or services to Tellcorp.
1.28 “Two Factor Authentication” refers to the process of establishing a user’s identity using various methods, such as one-time pin and security questions.
1.29 “User/s” means the Customer or any other person accessing any of the Services provided by Tellcorp.
2.1 The Goods and Services that Tellcorp will deliver to the Customer will be described in Service Orders.
2.2 These General Terms apply to all Services.
2.3 More details of particular Goods or Services may be contained in Service Terms.
2.4 The Service Order(s), Service Terms, and this document together form the Agreement between Tellcorp and the Customer. If the Parties enter into a Service Level Agreement or agree in writing to an annexure to any of these documents, these will also form part of the Agreement.
2.5 If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: General Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Agreement, unless otherwise expressly stated in writing.
3.1 Tellcorp will provide the Goods and Services to the Customer as described in an Application or Service Order in terms of the Agreement.
3.2 Tellcorp reserves the right to refuse to commence with the provision of Services based on the Customer’s prior conduct.
3.3 An Application must be submitted via the Tellcorp Website or info@tellcorp.co.za. Once an application is accepted by Tellcorp it becomes a Service Order.
3.4 Each Service Order (read with the other documents mentioned above) will be a separate contract between the Customer and Tellcorp (unless amended or renewed by another Service Order).
3.5 The terms of one Application or Service Order will not apply to another unless a Service Order amends or renews an existing Service Order or adds Goods or Services to an existing contract.
3.6 The Customer consents to Tellcorp carrying out a credit check on the Customer at any applicable credit bureau and may make the provision of the Goods or Services dependent on its satisfaction with the results. Tellcorp may provide information on the Customer’s payment record to a credit bureau.
3.7 If the Customer is a juristic person, Tellcorp may require one or more of its officers to stand surety for the Customer’s obligations under this Agreement. Even if the Agreement has commenced, Tellcorp may withhold providing the Services until the surety has been signed.
3.8 Depending upon the Service provided, Tellcorp may be obliged under RICA to obtain certain information and documents from the Customer, and Tellcorp may withhold or suspend providing Services until the Customer has provided the necessary information and/or documents to Tellcorp.
3.9 If the Customer has not complied with a requirement of this clause, Tellcorp may delay providing the Goods or Services until the Customer has complied. If the Customer does not comply within a reasonable period, Tellcorp may terminate this Agreement and will not be liable for any damage that the Customer may suffer as a result thereof.
3.10 Commencement of the Services is subject to a seven-day cooling-off period which will be interrupted if the Service in question is made available to the Customer during this period.
4.1 The Customer confirms that all statements made to Tellcorp are true and correct. Tellcorp reserves the right to request proof of any facts or claims. The Customer also commits to providing Tellcorp with the necessary information required in the provision of the selected Services, and (where applicable) consent to the use or sharing of this information with 3rd parties to comply with regulatory conditions (such as Domain Registration Listings) within the guidelines of applicable privacy legislation.
4.2 Tellcorp reserves the right to, at any time, request verification of the identity of the Primary Account Holder. Failure to produce such verification could result in summary suspension or cancellation of the product(s) and Services.
4.3 The Customer (or the Customer’s agent) certifies that the Customer is above the age of 18 years, has the full contractual capacity and (in the case of an agent) is duly authorized by the Customer to contract on the Customer’s behalf.
4.4 Tellcorp’s website and accounts systems are designed to facilitate reasonable use of the Tellcorp products and Services. Tellcorp reserves the right to suspend or terminate users who are improperly using features of the systems to avoid billing, shaping, suspension or any other system controls, or exploit bugs or limitations in the system design to effect avoidance of system controls or commit crimes. Tellcorp reserves the right to deem any such activity as “unreasonable exploitation of the system” and will take appropriate actions based on the circumstances and severity of the incident(s).
4.5 The Service Order(s), this Agreement and the Services or the interpretation of the supporting documents shall be governed by the laws of the Republic of South Africa, and the courts of South Africa will decide any disputes.
4.6 If the Customer or its staff engages in behavior that is a contravention of the Acceptable Use Policy or may be considered offensive to Tellcorp or its staff, Tellcorp reserves the right to suspend or terminate the Customer’s Services without any further notice, irrespective of the form and medium of this abuse.
4.7 In the event that any of the terms of this document are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
4.8 Tellcorp reserves the right to remove any content hosted by a Customer which it considers illegal or contrary to the AUP or for which it has received a takedown notice.
5.1 Tellcorp may amend the General – and Service Terms at any time. The amended versions will be posted on the Tellcorp Website, and Tellcorp will as soon as possible after posting the amendments make reasonable efforts to advise the Customer of said amendments via email. The Customer must also keep itself informed of the latest version of the above documents by accessing the Tellcorp Website on a regular basis.
5.2 Tellcorp must give at least one calendar months’ notice to the Customer of the amendments, which will become effective at the beginning of the first calendar month after the notice period has expired.
5.3 If the Customer objects to any of the amendments, it may terminate the Agreement in writing, and the termination will become effective at the end of the normal notice period.
5.4 If Tellcorp changes its Fees, the change must take place as described in this clause.
6.1 Customers will be held accountable for their conduct towards Tellcorp staff and in the public domain concerning allegations or malicious conduct directed towards Tellcorp or its staff.
6.2 Abusive behavior, 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 Tellcorp or its staff will be deemed abusive and will not be tolerated. Such conduct may constitute an AUP violation and Tellcorp reserves the right to immediately suspend or terminate Services to a Customer in such cases.
6.3 Customers using public platforms to spread libel, false allegations, unreasonably or maliciously diminish the reputation, or public perception of the Tellcorp brand (or its staff) may have their Services suspended or terminated, depending on the severity and circumstances of the incident(s). It may also be regarded as a contravention of the AUP.
7.1 Tellcorp cannot guarantee the provision of the requested Service upon the receipt of an Application.
7.2 Provision of the Service is subject to Tellcorp confirming that it is technically feasible to do so.
7.3 Applicants will be formally notified after receipt of an Application whether the Service can be provided.
8.1 Tellcorp offers online access to all products and services via the website. The Customer is solely responsible for ensuring that their choice of product or service conforms to their requirements or desired outcome. Tellcorp will not be liable for compensation, costs or damages resulting from incorrect selection of products or services, or any resultant delays in rectifying such errors.
8.2 Sign-up for products and services is subject to the cooling-off period described in section 44 of the Electronic Communications and Transactions Act (“the ECT Act”).
8.3 Tellcorp provides Services based on information provided by the Customer, and Tellcorp offers no warranty as to the suitability of the Services beyond the requirements as expressed by the Customer.
8.4 Tellcorp reserves the right to stop the offering of a particular Service if it deems it necessary. Tellcorp will then either provide the Service for the remainder of the time that the Customer has paid for or refund the Customer the amount paid for that specific package.
8.5 The Service is a best-effort service, which means that the Service Provider does not provide any guarantees that data is delivered or that that the Customer will be provided a guaranteed quality of service level or a certain priority. All customers obtain best-effort service, meaning that they obtain unspecified variable bit rate and delivery time, depending on the current traffic load, WiFi coverage, atmospheric conditions and a range of factors. Accordingly, advertised and contracted bandwidth speeds are maximum speeds that are not guaranteed.
9.1 Customers may only use a referral program to refer to other possible customers. Customers that try to refer themselves via other accounts, whether setup using spoofing methods or simply as duplicate referrals will not receive any discounts.
9.2 Should a referred customer decide to cancel its services within three months of signup, Tellcorp reserves the right to reverse both the referrer and the referee’s credits.
10.1 Tellcorp reserves the right to change its prices at any given time, upon giving reasonable notice to the Customer which will not be less than 30 days, as per the minimum term of a month to month agreement.
10.2 Tellcorp only accepts EFT or Cash payments for month to month services and will only accept alternative payment under specific circumstances and only in case of prior written arrangements which decision will be at Tellcorp’s sole discretion.
10.3 The Customer’s monthly fee will be submitted monthly in advance on or about the first Business Day of the month. This will apply to both EFT and cash payments.
10.4 Tellcorp will not accept any liability or responsibility for delays, suspensions or impact to Services due to the use of non-approved payment methods by Customers.
10.5 Non-payment of any Fee by its due date, whether as a result of unpaid Debit Orders, declined cards or any other cause may result in immediate suspension of Services (which may not be limited to the particular Service in question). Tellcorp retains the right to suspend any Services for non-payment and to withhold such Services until all arrears are settled in full on any products and Services.
10.6 Services which have been suspended for non-payment of Fees will remain suspended until payment has been made and the Service will then be reconnected as described below. The Customer will not be credited for data or services that would otherwise have been available to the Customer during the period of suspension.
10.7 If the Customer remains in default for the payment of an overdue monthly fee for two consecutive calendar months, Tellcorp may terminate the Agreement with immediate effect. The Customer will remain liable for all outstanding fees for services rendered until date of cancellation, for outstanding equipment charges, charges for any period of suspension as well as the applicable penalty fees.
10.8 Should the Customer settle the unpaid fee; they will be reconnected as described below.
10.9 Tellcorp may charge an Admin Fee for failed or returned payments, regardless of method of payment or the reason for non-payment. Such Admin Fees are payable immediately and in conjunction with the outstanding fees which resulted in non-payment. Admin Fees will be calculated on a sliding scale based on the number of incidents of non-payment on the Customer’s payment record. Non-payment of Admin Fees will be considered a breach of the agreement between the Parties and will be subject to the same terms as non or late payments. Once levied, Admin Fees are not recoverable or reversible, regardless of whether payment is made within the prescribed period.
10.10 If the Customer’s Services are suspended or terminated for any reason, including non-payment, Tellcorp may charge a Reconnection Fee for subsequent reactivation of services. Reconnection Fees are payable in full before any services can be reactivated, once suspended. Tellcorp may charge multiple reconnections Fees where multiple products are affected and may charge “escalating” penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice Tellcorp’s right to enforce such penalties in full at any time (within their discretion).
10.11 Reconnection of Services may be subject to a waiting period of up to 72 hours, at Tellcorp’s discretion, regardless of when payment is received or cleared.
10.12 In cases of suspension of Services due to non-payment, Tellcorp reserves the right to levy both Reconnection Fees and Admin Fees. All penalty fees must be settled in full, prior to reconnection of affected services.
10.13 Both Admin and Reconnection fees will not exceed R300 (charged on a sliding scale based on the number of incidents of non-payment), and this amount is based on (but not limited to) a reasonable estimation of accumulated administrative costs (such as labor), bank penalties and resubmission charges levied by payment carriers.
10.14 In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time through the complaint’s procedure set out in these Terms to prevent interruption of services while the billing is in dispute. Amendment will be made to Customer billing with successful disputes by means of an account credit or refund, at Tellcorp’s discretion.
10.15 Tellcorp reserves the right to terminate services where a Customer has shown a repeated disregard for payment terms and consistently fails to make regularly scheduled payments on time and to use approved payment methods. The conditions of termination will be based on guidelines determined at Tellcorp’s discretion and may vary. The means and terms of termination will be determined at Tellcorp’s discretion. Notice of termination will be provided to the best of Tellcorp’s ability, but Tellcorp will not be held liable for claims or requests for further provision of services once a Customer’s services have been terminated due to non-payment.
10.16 Unless otherwise agreed:
10.16.1 Billing will commence on the date that Service provision commences. Partial months will be charged pro-rata.
10.16.2 Services are billed in advance, and all invoices must be paid by the Customer in advance.
10.16.3 Any Services invoiced in arrears are payable on presentation of invoice.
10.16.4 All Fees and other amounts payable are quoted exclusive of VAT.
10.17 Interest will be charged on any amount that remains unpaid by the Customer beyond the due date of payment:
10.17.1 The interest rate will be 2% (two percent) above the prime overdraft rate (percent, per annum), up to a maximum of 2% per month.
10.17.2 The prime overdraft rate will be as charged by Tellcorp’s bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.
10.18 The interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest.
11.1 Tellcorp operates Month-to-Month contracts unless otherwise agreed upon. Either the Customer or Tellcorp may terminate the Agreement, or a particular Service, by giving one calendar months’ written notice to the other. For example, if notice is given on the 15th of January, the termination will take effect on the 1st of March. Particular Service Terms may allow for shorter notice periods.
11.2 The Customer must give notice of termination to Tellcorp in writing via mail (accounts@tellcorp.co.za) Cancellation of any Service is the Customer’s responsibility. The Customer is responsible for ensuring that such cancellation of Service is actioned with due attention to terms of cancellation, as well as cancellation conditions which require the Customer to indicate a certain process specifically. Should the Customer incorrectly complete the cancellation process, Tellcorp will not be liable for any additional costs or compensation due to the error.
11.3 Either Party may terminate this Agreement and any subsequent services that has been provided where there is a breach of this Agreement by the defaulting party which has not been remedied within seven (7) days of receipt of written notice to do so.
11.4 Tellcorp reserves the right to terminate agreements and the rendering of services based on a breach of this Agreement, or linked agreements (such as their Acceptable Use Policy) which is viewed as a breach of the whole service contract.
11.5 The Customer acknowledges that Tellcorp may terminate this Agreement by written notice, including email, and without liability in the event of the termination of its Agreement with an upstream licensee relevant to the provision of any connectivity Service.
11.6 Tellcorp reserves the right to deactivate or terminate selected Free Products, such as Fax2Email, should they not be used within a prescribed period or at Tellcorp’s sole discretion. Such termination will take place automatically, as per product specifications, and may occur without prior notice to the Customer. Tellcorp accepts no liability should such termination take place, and no warranty is made regarding the availability of said products in the future. For example, should a Fax2Email be deleted if not used within 90 days, Tellcorp makes no warranty that the number can be made available again, and accepts no liability for any consequences resulting in the deletion of the product. Tellcorp reserves the right to terminate products provided as Free products where a breach has occurred (such as non-payment) in relation to other products, whether or not such breach has a direct or indirect bearing on the Free product service provision.
Should Tellcorp agree to the acquisition or transfer of any or all of its services to another company and such services and services agreements will be transferred to the acquiring entity. Customers affected will be notified of such changes and any potential impact on their service agreement within the minimum term (30 days) of a month to month agreement.
13.1 Customers signing up for services as a Primary Contact are considered “the customer” and no other parties will be permitted access or authority to the Customer’s Account, even if they are a 3rd party recipient or affiliate of the “customer”.
13.2 Tellcorp will observe all privacy of information best practices, in accordance with the applicable laws of South Africa, including the Protection of Personal Information Act (POPI) of 2013.
13.3 The Customer consents to Tellcorp processing Personal Information transmitted to the Tellcorp System in a way which is consistent with the Service being provided. Where the Customer’s use of a Service leads to the transmission of Personal Information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Customer warrants that it has obtained the consent of any third party for the use of that Party’s Personal Information in this way, or otherwise that such processing is lawful, and indemnifies Tellcorp from any claim(s) brought by such third party as a result of its failure to do so.
13.4 Tellcorp may retain backups as a matter of course for up to one year after termination, and the Customer consents to such retention. However, Tellcorp gives no warranty in respect of the effectiveness of such backups (if any).
14.1 Tellcorp will implement measures in line with Good Industry Practice to ensure the security of the Tellcorp System and the physical security of Tellcorp’s premises but gives no warranty that breaches of security will not take place.
14.2 If the Customer discovers a security violation, or thinks that a security violation is imminent, it must immediately notify Tellcorp in an appropriate way that does not pose any further security concerns.
14.3 If the Customer suffers damage as a result of loss or corruption of Customer Data through a security violation, it will be liable for the damage if the violation was the Customer’s fault.
14.4 The Customer must withhold from doing anything that may prejudice the security of the Tellcorp System and must take all reasonable measures necessary to ensure that:
14.4.1 no unlawful access is gained to Tellcorp’s premises, the Tellcorp System, or the Customer’s system;
14.4.2 no Malicious Code is introduced into the Tellcorp System; and
14.4.3 the Customer Data is safeguarded.
14.5 If a security violation occurs, or Tellcorp is of the view that a security violation is imminent, Tellcorp may take whatever steps it considers necessary to maintain the proper functioning of the Tellcorp System including without limitation:
14.5.1 changing the Customer’s access codes and passwords (or those of any user of the Tellcorp System), and
14.5.2 preventing access to the Tellcorp System.
14.6 Tellcorp will take reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.
14.7 The Customer must give its full cooperation to Tellcorp in any investigation that may be carried out by Tellcorp regarding a security violation.
14.8 If the Customer is providing any service to third parties that make use of the Tellcorp System, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this clause 14.
14.9 Tellcorp may on prior written notice to the Customer inspect the Customer’s installation and Customer Equipment located on Tellcorp’s premises to ensure compliance with the building regulations and restrictions agreed between the parties.
14.10 By signing up and submitting personal information to Tellcorp, customers expressly agree to validation and verification methods such as Two Factor Authentication and/or Multi-Factor Authentication, using the personal information submitted, or such information as required by Tellcorp from time to time. The method of verification used will be implemented at the discretion of Tellcorp. Customers hereby grant authority to Tellcorp to use personal information for this purpose, including sending OTP information via SMS to their mobile phones.
15.1 Tellcorp may, subject to this Agreement or Acceptable Use Policy, suspend or terminate services of a Customer in its absolute discretion by providing email notice if:
15.1.1 the Customer commits a serious or repeated breach of any of Tellcorp’s Agreements or the Customer engages in any conduct which in Tellcorp’s opinion would have a negative impact on Tellcorp, on its other customers or Tellcorp’s staff or is detrimental to the welfare, good order or reputation of Tellcorp; or
15.1.2 Any part of the Customer’s Fees is not paid in full when due; or
15.1.3 The information the Customer supplied to Tellcorp is found to be incorrect or false;
15.1.4 Tellcorp reasonably thinks that the Customer’s use of the Services may result in the commission of a crime or is otherwise unlawful.
15.2 Tellcorp reserves the right to affect such suspension or termination without further notice to the Customer, depending on the severity of the breach but will undertake to inform Customers where possible. Upon such suspension or termination, such Customers:
15.2.1 Will not be eligible for reimbursement/compensation, unless at Tellcorp’s discretion
15.2.2 Will not be eligible for payment under the Double Money Back Guarantee or similar promotions
15.2.3 May be further barred from signing up for any services with Tellcorp in the future
15.2.4 May be reported to governing bodies, such as ISPA, for listing purposes
15.2.5 May be listed with applicable authorities and credit bureaus.
15.3 The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
16.1 Tellcorp WILL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY IN RESPECT OF ANY DAMAGES, LOSS, CLAIMS OR COST, OF WHATEVER NATURE AND INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES SUFFERED BY THE CUSTOMER OR THIRD PARTY, HOWSOEVER ARISING, AND Tellcorp WILL MOREOVER NOT BE LIABLE IRRESPECTIVE OF WHETHER THE LOSS WAS THE RESULT OF THE ACT OR OMISSION OF AN Tellcorp EMPLOYEE, VICARIOUS OR STRICT LIABILITY.
16.2 In the event that Tellcorp is nonetheless held liable, the quantum of Tellcorp’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss, in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of Tellcorp or any other cause.
16.3 USE OF THE SERVICES INDICATES THAT THE CUSTOMER INDEMNIFIES AND HOLDS Tellcorp HARMLESS IN RESPECT OF ANY DAMAGES, LOSS, COSTS OR CLAIMS INSTITUTED AGAINST Tellcorp ARISING FROM ANY APPLICATION OR SUBSCRIPTION TO OR USE OF ANY SERVICE OR BREACH OF THE TERMS AND CONDITIONS APPLICABLE TO IT.
16.4 These limitations on liability and indemnities apply to the benefit of Tellcorp and Tellcorp ‘s Affiliates, directors, officers, employees, contractors, agents and other representatives as well as any third parties whose networks are connected to the Tellcorp System.
16.5 Nothing contained in this clause 16 will limit the Customer’s liability in respect of charges incurred for ongoing Services.
16.6 If the Consumer Protection Act 68 of 2008 is applicable to this Agreement, and any provision of clause 16 is found by a court or tribunal with jurisdiction over Tellcorp to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) will be severed, and the remainder of clause 16 will have full force and effect.
16.7 In the case of ambiguity, clause 16 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
17.1 All requests by the Customer for the provisioning, modification or termination of Services and for modification of contact and other personal information must be done via email and sent to info@tellcorp.co.za. Tellcorp reserves the right to ignore any such request made in any other manner.
17.2 The Parties choose their addresses where they will accept Service of any notices/documents for all purposes (apart from as described in clause 18.1) arising from this Agreement (domicilium citandi et executandi):
17.2.1 in the case of Tellcorp,
5 Akasia Hof, Akasia St
George
6530
South Africa,
and
17.2.2, in the case of the Customer, the addresses set out in the most recent Service Order agreed between the Parties.
17.3 Either Party may vary it’s given postal address or other contact details by notifying the other party in writing.
17.4 Any notice given in terms of this Agreement must be in writing and any notice given by any Party to another (“the addressee”) which:
17.4.1 if delivered by hand will be deemed to have been received by the addressee on the date of delivery; or
17.4.2 if sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax and if outside such Business Hours then at the beginning of the next Business Day; or
17.4.3 if transmitted by email will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee; or
17.4.4 if posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its chosen postal will be deemed to have been received by the addressee on the 7th (seventh) day after the date of posting.
17.5 Despite the above:
17.5.1 any notice that Tellcorp sends by email to an email account hosted on the Tellcorp System by the Customer will be deemed to have been received by the Customer on the date of transmission; and
17.5.2 if a written notice or communication is actually received by one of the Parties from the other, this will be adequate written notice or communication to that party.
18.1 Whole Agreement.
This Agreement constitutes the whole of the Agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to by both parties will be of any effect.
18.2 Applicable Law & Jurisdiction.
The law of the Republic of South Africa will apply to this Agreement, its interpretation and any matter or litigation relating to or arising from it, and the party’s consent to the jurisdiction of the courts of Republic of South Africa in this regard.
18.3 Survival.
For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty extending beyond the termination or expiry of this Agreement will survive the termination or expiry of this Agreement and continue in full force and effect.
18.4 No Indulgence.
If one party chooses not to enforce any part of this Agreement, it will not be construed as a waiver of that party’s right to enforce any part of the Agreement at a later stage. If any portion of the Agreement is found to be unenforceable, it will have no force or effect on the Agreement as a whole and the rest of the Agreement will still be deemed valid and enforceable.
18.5 Representatives.
The signatories hereto acting in representative capacities warrant that they are authorized to do so and accept personal liability under this Agreement should it be proven that they are in fact not authorized to do so.
18.6 Reading Down.
If any provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation would make it void, illegal, invalid or otherwise unenforceable then that provision shall be interpreted, in so far as is possible, to be limited and read down to the extent necessary to make the particular provision valid and enforceable.
18.7 Severance.
In the event that any part of this Agreement is found to be partially or fully unenforceable because it does not comply with any law, or for any other reason whatsoever, it will have no effect on the application or enforceability of the remainder of this Agreement.
