Newwave Africa (Pty) Ltd a company duly incorporated and existing under the laws of South Africa.
Registration Number 2005/032665/07 (“the Company”) and the “Subscriber”
This Agreement is for the provision and supply by the Company of high-speed internet access services (“Services”) to subscribers in South Africa.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Services
1.1 The Company agrees to provide the Subscriber with the Services as described in the D8A Package on the Company website [insert website address] or other marketing materials (“Website”).
1.2 The D8A Package includes:
- Internet access: Download and upload speeds as outlined in the D8A Package.
- Data allowance: A specific amount of data usage as outlined in the D8A Package.
1.3 Subscribers’ exceeding their data allowance will be subject to additional charges as per the Company’s Fair Usage Policy (“FUP”) available on the Website. By signing this Agreement, you agree that once the data allowance of your selected Package is exhausted, you will be defaulted to additional charges as per the FUP and be liable for such additional charges.
2. Term and Termination
2.1 This Agreement will begin and be binding on the Subscriber and the Company commencing on the date of activation of the Services (“Commencement Date”) and shall continue on a month-to-month basis until terminated by either party as provided herein. Once this Agreement becomes effective, the terms and conditions contained herein shall become binding on you and you must comply with your obligations under this Agreement.
2.2 Subscriber may terminate this Agreement at any time by providing the Company with at least 30 days’ written notice via email to d8a@newwave.co.za.
2.3 Company may terminate this Agreement for any reason upon providing the Subscriber with 14 days’ written notice via email to the email address provided by you. Company may also terminate this Agreement immediately without prior notice if:
- you breach any material provision of this Agreement.
- you fail to make timely payment for the Services.
- you engage in illegal or harmful activities using the Services.
2.4 If the Subscriber does not pay charges on time or if the Subscriber breaches this Agreement, then the Company may suspend the Services until the Subscriber has paid any outstanding amounts owing under this Agreement and oblige you to perform all your obligations in terms of this Agreement. The Company will notify you before the suspension of the Services.
3. Fees and Payment
3.1 In return for the provision of the Services, the Subscriber agrees to pay the Company the monthly fee for the D8A Package which is billed to you in advance (“Prepaid Payment”). The Prepaid Payment that you pay on your elected payment date is for the use of the Services for the next month.
3.2 Payment is due on the Commencement Date of each month. If this Agreement starts later than the first day of any month, then the first month’s Prepaid Payment will be pro-rated accordingly.
3.3 Payment in terms of this Agreement must be made to the account indicated by Company and the payment will discharge your liability to the Company. Payment must be:
3.3.1 made by the payment method selected by you in your application; or
3.3.2 by any other means as may be agreed by the Company in writing.
Company accepts payment via the following methods: EFT, Debit Order, Vouchers
3.3 Even if you do not receive your invoice/s for any month/s, you must pay the Prepaid Payment on the due date. Please notify the Company as soon as you realise that you have not received your invoice so that the Company may take steps to assist you with this and advise you of the amounts due, if any.
3.4 Late payments will be subject to a late payment fee as outlined on the Website. In addition, the Company is entitled to charge you an administration fee which you agree and consent to pay if any of your selected payment methods in the application is returned unpaid for any reason or insufficient payment is received for whatever reason, unless it is due to the Company’s’ own fault. The administration fee will include the bank charges, bank administration fees and other charges and fees that the Company will have to pay and/or incurred in collecting your unpaid fees and charges.
3.5 To the extent that the payment method is an electronic payment and it fails for any reason, the Company shall have the right to subsequently use any legal means available (including, without limitation, early debit order facilities) to recover any and all amounts owing, and you agree, understand, confirm and authorize the Company to debit your account in such circumstances.
3.6 It is your responsibility to make sure that:
3.6.1 you have given your correct banking details. If your banking details change for any reason, you must notify the Company of the change so that the Company can update its systems; and3.6.2 you have given your correct address details (whether electronic or physical). If your address details change for any reason, you must notify the Company of the change so that the Company can update its systems.
3.7 You understands and agree that the Company cannot be held liable for any charges, damages or loss, if you do not notify the Company of the change to your banking details and/or ask to change your address details within a reasonable period and that all such charges, damages or losses will be for your own account.
4. Equipment
4.1 Company may provide the Subscriber with equipment (“Equipment”) necessary to use the Services. The Company remains the owner of any Equipment supplied to you until this Agreement comes to an end. Where possible the Company guarantees that you shall have undisturbed possession of the Equipment for the duration of this Agreement provided you have complied with this Agreement.
4.2 You are responsible for the safekeeping and proper use of the Equipment and you agree to notify the Company immediately if your Equipment has been lost or stolen. You accept all risks associated with your Equipment (from the date of delivery).
4.3 Any Equipment supplied to you that does not function properly or is defective or faulty because of its design, material or workmanship may be covered by a warranty provided by the manufacturer or relevant legislation for the period stated by the manufacturer or legislation.
4.4 The Company does not warrant any Equipment or accessory which has been damaged due to water (including dropping Equipment in water, damage to Equipment or due to humidity), disassembled, physically altered, permanently installed, affixed, attached, joined or added to, blended or combined with, or embedded within, other Equipment or property, and as may be further set out in the Company’s repairs and replacement policies.
4.5 If your Equipment is faulty, you may return the Equipment to the Company subject to the Subscriber complying with the repairs and replacement policies of the Company, subject to the manufacturer specifications and requirements.
4.6 You understand and agree that the Agreement will not come to an end if the Equipment issued to you is lost, stolen or damaged or destroyed. You remain liable and must continue to pay all charges and fees in terms of the Agreement.
4.7 You shall return the Equipment to the Company upon termination of this Agreement in good working condition, normal wear and tear excepted.
4.8 Subscriber shall be liable for any loss or damage to the Equipment beyond normal wear and tear.
5. Suspension of Services and Disconnection of Equipment
5.1 Services may be suspended by disconnecting the Equipment if:
5.1.1 the network fails, or becomes temporarily unavailable due to any modification and/or upgrade and/or maintenance and/or circumstance beyond the Company’s’ control;
5.1.2 you fail to comply with any of the terms and conditions of this Agreement;
5.1.3 you at any time exceed any monthly usage limit imposed by the Company; or
5.1.4 you use the Services or Equipment unlawfully, or if you unlawfully tamper with or modify your Equipment.
5.2 In the event that the Company becomes aware of any suspension, termination or temporary unavailability of the network, or any of the Services, or any unavoidable delay in the performance of the Services, the Company will make reasonable attempts to give you timely notice of such suspension, termination, temporary unavailability or unavoidable delay.
5.3 You will continue to be liable for payment of your Prepaid Payment during any suspension period.
6. Services
6.1 Company will take all reasonable steps within its control to make the Services available to you at all times in line with the terms and conditions of this Agreement.
6.2 Although the Company takes all reasonable measures to ensure that the Services are offered to you on a consistent and continuous basis, the Company cannot always guarantee a continuous and/or fault-free service.
6.3 The quality and availability of the Services may sometimes be affected by factors such as:
6.3.1. local physical obstructions;
6.3.2. bad weather;
6.3.3. the features or functionality of your particular Equipment;
6.3.4. damaged Equipment;
6.3.5. unavailability of electrical supply, such as load shedding; or
6.3.6. the number of people trying to use the Service at the same time, for instance in a national emergency, or if there are faults in other electronic communications networks to which the Service is connected.
7. Acceptable Use Policy (AUP)
7.1 Subscriber agrees to comply with the Company’s AUP available on the Website which is deemed to be incorporated by reference in this Agreement. The AUP prohibits activities such as:
- Illegal downloading or sharing of copyrighted content.
- Spamming or other unsolicited marketing communications.
- Denial-of-service attacks or other network disruptions.
- Use of the Services for any illegal or harmful purpose.
7.2 Violation of the AUP may result in termination of this Agreement and/or other legal action by the Company.
8. Disclaimer of Warranties
COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE.
9. Limitation of Liability
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY LIABILITY, LOSS(ES) AND/OR DAMAGE AND/OR COST OR EXPENSE WHATSOEVER WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING ANY LOSS OF INCOME AND/OR LOSS OF PROFIT AND/OR LOSS OF ANTICIPATED SAVINGS SUFFERED BY YOU: (A) DUE TO ANY REASONABLE SUSPENSION, TERMINATION OR TEMPORARY UNAVAILABILITY OF THE SERVICES, OR ANY UNAVOIDABLE DELAY IN THE PERFORMANCE OF SERVICES; (B) DUE TO ANY DAMAGE OR FAULT TO ANY EQUIPMENT; AND (C) ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Use of your Personal Information and Direct Marketing
10.1 By entering into this Agreement, you understand and acknowledge that the Company, its affiliate companies, its service providers, suppliers and partners (“Group”) are required to comply with the provisions of the Protection of Personal Information Act of 2013 (“POPIA”) to, amongst other things, ensure the privacy and confidentiality of your Personal Information (as such term is defined in the POPIA).
10.2 For purposes of this, you confirm, agree, understand, acknowledge that by entering into this Agreement:
10.2.1 you disclose and provide your Personal Information to the Group voluntarily and consent and authorise the Group to collect, use, process, share and/or transfer your Personal Information in accordance with the Company’s privacy policy accessible by you on the Website (“Privacy Policy”);
10.2.2 you agree to immediately inform the Group in writing if there is any change of whatsoever nature in any of your personal information, including your physical address, previously supplied to the Group; and
10.2.3 you agree and consent to be bound by the terms and conditions of the Privacy Policy, which you have read, understood and agreed to as part of your application.
10.3 In order to fulfil the obligations set out in this Agreement, the Company will process your personal information. Such processing may include sharing personal information with:
10.3.1 the Group, but only to the extent necessary and in order to provide Services and Equipment to you;
10.3.2 either credit grantors and/or credit bureaux and/or banks and/or other financial institutions in order to ascertain information relating to your creditworthiness (before the Company accepts your application) and for fraud prevention purposes, to improve the accuracy of contact details and in order to process any payment transactions necessary for and relative to the Agreement; and
10.3.3 attorneys and/or debt collection agencies if you breach the Agreement.
10.4 As and when necessary, you agree and consent to be contacted by the Company in respect of its direct marketing campaigns in relation to similar and/or related products and/or services, which contacts will be in accordance with the terms and conditions of the direct marketing provisions of the Consumer Protection Act, 68 of 2008 (“CPA”) as amended and the CPA regulations and POPIA, including the provisions relating to the direct marketing registry.
10.5 You can ask the Company to stop marketing to you (opt-out) at any time. You may register a block on marketing from the Group.
10.6. You are entitled to withdraw your consent for using your personal information under clauses 10.2, and 10.4 above on written notice or notice in any other recorded form to the Company. In the event you decide to withdraw your consent the Group will not be able to use your information for the purposes listed under clauses 10.2 and 10.4 to the extent that you withdraw your consent from the date your withdrawal notice is received.
11. Notices
11.1 All legal notices given in terms of the Agreement will be in writing and all notices may be sent to the address(es) specified in the application. Any change in your address will only be effective if and when the Company receives written notification of your change of address.
11.2 The Company will deliver certain notices to you by SMS.
11.3 Notices that do not negatively affect you, will be delivered and will be considered as received:
11.3.1. if delivery is by hand, then on the date of delivery;
11.3.2. if delivery is by email, then when the message is capable of being retrieved and processed by the addressee from the information system, or server used by the addressee for the purposes of receiving email messages as stated in section 23(b) of the Electronic Communications and Transactions Act, 2002.
11.4 Any legal notices given by the Company which is of a particular interest to you will be deemed to have reached you within 10 days of posting, only if it is sent by registered mail from an address within South Africa to your last known address.
11.5 Reference to written notice being provided to you shall include notice sent through electronic communication, including via SMS.
12. Transfer of rights and obligations
12.1 You must not do any of the following at any time without the Company’s’ permission:
12.1.1 transfer/cede any of your rights under this Agreement to any other entity or person; or
12.1.2 transfer/delegate or hand-over any of your obligations or responsibilities under the Agreement to any other entity or person.
12.2 To the extent that this is allowed by law, you agree that the Company can at any time do any of the following without notice to you or your permission:
12.2.1 transfer any rights under this Agreement, to any one or more persons or entities; and/or
12.2.2 transfer/delegate or hand-over any obligations or responsibilities under this Agreement to any one or more persons or entities.
12.3 You agree and understand that if the Company elects to transfer their rights and obligations under the Agreement to one or more third parties then:
12.3.1 this Agreement shall not come to an end, unless you request to cancel this Agreement in terms of the cancellation provisions, and you shall remain liable and must continue to pay all amounts in terms of this Agreement, including Prepaid Payment; and
12.3.2 in order to facilitate the uninterrupted transfer of the Agreement unless you request to cancel this Agreement in terms of the cancellation provisions.
13. Extensions of time and indulgences
If the Company give you any leeway, or extension of time or other indulgence, it will not prevent the Company from enforcing any rights in the future, without notice, and requiring your strict and timely compliance with each term and condition of this Agreement.
14. Amendments
14.1 The Company entitled on written notice to you (which notice may be sent through electronic communication, including via SMS), to change the terms and conditions of this Agreement if necessary because of any new and/or amended law, tax, regulation and/or any change in the data charges or Services.
14.2 The Company is further entitled on written notice to you (which notice may be sent via SMS), to change the terms and conditions of the Services or conditions of supply of the Equipment. If the Company changes the terms and conditions, you will be notified of such amended terms and conditions and you will be able to view the amended terms and conditions of this Agreement, Services and supply of Equipment on the Website. If you do not agree to the amendments, you may cancel this Agreement subject to the cancellation provisions of this Agreement.
15. Governing Law
15.1 This Agreement shall be governed by and construed in accordance with the laws of South Africa.
15.2 You agree and understand that any dispute arising from this Agreement shall be referred to the Company.
15.3 Any dispute relating to this Agreement can be resolved in accordance with the Company’s customer code of conduct, a copy of which is available on the Website.
15.4 Despite the above, you can refer any unresolved dispute between you and the Company to the National Consumer Commission established under the Consumer Protection Act, 2008.
16. Entire Agreement
Except for the Company’s right to change this Agreement described in clause 14 above, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
17. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain.