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123NET Standard Terms and Conditions

BY MAKING USE OF THE SERVICES AND/OR PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

1. INTRODUCTION

  1. 1.1. The following terms and conditions form part of the Service Agreement entered into between the Service Provider and the Subscriber.
  2. 1.2. By signing the Service Agreement the Subscriber acknowledges that he:
    1. 1.2.1. has carefully read all the terms and conditions below;
    2. 1.2.2. fully understands and appreciates the meaning and effects thereof; and
    3. 1.2.3. accepts and is bound by the terms of the Agreement (which includes these Standard Terms and Conditions which form a part thereof).
  3. 1.3. The Subscriber's attention has further been drawn to certain terms and conditions contained below which due to their nature, may be somewhat onerous on the part of the Subscriber. By signing the Agreement the Subscriber further acknowledges that he accepts all such terms and conditions.

2. MEANING OF CERTAIN WORDS AND PHRASES

  1. 2.1. In the Agreement and for the purposes of interpreting and understanding the Agreement:
    1. 2.1.1. words which make reference to the singular shall include a reference to the plural and vice versa;
    2. 2.1.2. words which make reference to one gender shall include the other gender; and
    3. 2.1.3. any reference to a person shall include a juristic person (which is a legal structure other than a natural person, such as for example, a company, body corporate, firm or association) and vice versa.
  2. 2.2. In the Agreement unless inconsistent with the context, the following words and expressions shall mean the following:
    1. 2.2.1. "the Agreement" - means these Standard Terms and Conditions, the face of the Agreement, as well as all schedules and/or annexures which are attached herewith as well as any other terms and conditions which 123NET may, from time to time, impose in respect of the services;
    2. 2.2.2. "Business Hours" -- means 07H30 to 16H30 on each and every day of the week;
    3. 2.2.3. "Business Days" - means weekdays except for weekends and public holidays in the Republic of South Africa;
    4. 2.2.4. "CPA" - means the Consumer Protection Act No. 68 of 2008 as amended from time to time together with the Regulations promulgated thereby;
    5. 2.2.5. "Commencement Date" - means the date on which the services first commence which shall be on the day on which the Subscriber's account has been activated and is connected to 123NET's network infrastructure;
    6. 2.2.6. "Days" means ordinary calendar days;
    7. 2.2.7. "Equipment" - means all equipment provided and installed by 123NET on the premises as well as any other equipment in whatever format which is provided by 123NET to the Subscriber in order to enable 123NET to carry out its services in terms hereof;
    8. 2.2.8. "the Fixed Term Period" - means the period selected by the Subscriber on the face of the Agreement and which period is for a fixed and/or definite period, for example the six month or the twelve month or the twenty four months period;
    9. 2.2.9. "Holiday package" -- means the package selected by the Subscriber on the face of the Agreement the duration of which is to operate on a weekly basis;
    10. 2.2.10. "Month-to-month Period" -- means:
      1. 2.2.10.1. the period selected by the Subscriber on the face of the Agreement the duration of which is to operate on a monthly basis; or
      2. 2.2.10.2. the period following the expiry of the fixed term period (where applicable);
    11. 2.2.11. "Non-fixed term Period" -- means the period selected by the Subscriber on the face of the Agreement, for example, the holiday package or the month-to-month agreement;
    12. 2.2.12. "the Parties" - means 123NET and the Subscriber, the details whereof appear on the face of the Agreement;
    13. 2.2.13. "the Services" - means the services which will be provided by 123NET at the premises as described in paragraph 4 below and elsewhere in the Agreement.

3. THE PREMISES

  1. 3.1. The Subscriber hereby acknowledges and understands that the Agreement has been entered into solely on the basis that the services to be provided by 123NET in terms of the Agreement are to be rendered solely at the premises which appear on the face of the Agreement.
  2. 3.2. In the event of the Subscriber moving to new premises after having entered into the Agreement the Subscriber shall give 123NET at least thirty (30) days' notice of the Subscriber's intention to move to new premises. In such written notice, the Subscriber must specify the full physical address of the new premises.
  3. 3.3. Should 123NET upon having received the written notice referred to in paragraph 3.2 above not be able to provide the services at the new premises, 123NET shall notify the Subscriber in writing that:
    1. 3.3.1. the Agreement shall terminate after a period of thirty (30) days from the date of 123NET's written notice;
    2. 3.3.2. the Subscriber shall be liable to pay an early cancellation fee which shall be stipulated in such written notice; and
    3. 3.3.3. all equipment owned by 123NET and which has been installed on the existing premises by virtue of the Agreement shall be dealt with in terms of the provisions of paragraphs 5.2 and 5.3 below.
  4. 3.4. In the event of 123NET being able to provide the services at the new premises specified in the notice referred to in paragraph 3.2 above, a new written agreement shall be entered into between 123NET and the Subscriber.
  5. 3.5. In the event of the Subscriber moving to new premises without complying with any of the provisions contained in paragraphs 3.3 and 3.4 above, this shall be regarded by 123NET as a material breach of the terms of the Agreement which entitles 123NET to immediately cancel the Agreement and to exercise its rights to claim from the Subscriber all the amounts which 123NET may recover from the Subscriber by virtue of the Subscriber's breach of the terms of the Agreement and the resulting premature cancellation thereof.
  6. 3.6. Relocation During Promotional or Clawback Periods
    1. 3.6.1. If the Subscriber moves to a new address, or requests that services be provided at a new address, during any promotional period, discount period, or clawback commitment period (as may be applicable under the Subscriber's chosen package or any promotional offer), such move shall be treated as an early termination of the existing Agreement for the current address.
    2. 3.6.2. In the circumstances contemplated in clause 3.6.1, and subject to the applicable Agreement and/or promotional terms, the Subscriber may be liable for:
      1. the applicable clawback fee or early termination fee (as described in the Agreement or promotional terms); and/or
      2. recovery of any promotional discounts, waived fees, or other benefits received under the promotion, calculated in accordance with the relevant promotional terms and conditions.
    3. 3.6.3. The provisions of clauses 3.6.1 and 3.6.2 apply regardless of whether 123NET is able to provide services at the Subscriber's new address, and are in addition to the provisions of clauses 3.2 to 3.5, provided that the Subscriber shall not be charged more than the fees and amounts expressly provided for in the Agreement and/or applicable promotional terms.
    4. 3.6.4. 123NET may, in its sole discretion and in writing, agree to waive or reduce any clawback fee or early termination fee, or to transfer any promotional benefits to the new address, subject to such terms and conditions as 123NET may determine.
    5. 3.6.5. Any request for a waiver, reduction, or transfer of promotional benefits must be made in writing to 123NET prior to the Subscriber vacating the current premises, and 123NET's written decision in this regard shall be final.

4. THE SERVICES TO BE PROVIDED BY 123NET

  1. 4.1. 123NET agrees to provide the Subscriber with internet access and fast network services at the premises by means of its optic fibre network infrastructure or other type of network delivery in accordance with the package chosen by the Subscriber on the face of the Agreement.
  2. 4.2. 123NET reserves the right to amend at any time any of the technical parameters or specifications relating to the services provided that the Subscriber shall be given reasonable notice of such amendment.
  3. 4.3. 123NET is a Fiber Network Operator (FNO) and owns the infrastructure used to provide the services to the Subscriber.
  4. 4.4. The Subscriber is not permitted to tamper with, modify, or relocate any equipment owned by 123NET without prior written consent from 123NET.

5. THE EQUIPMENT TO BE PROVIDED BY 123NET

  1. 5.1. The equipment which shall be provided and installed by 123NET at the premises in order to enable the Subscriber to be connected to 123NET's network infrastructure shall consist of:
    1. 5.1.1. an Optic Fibre Network Unit (which in technical terms is referred to as "ONU") if the installation is in the form of a fibre network installation. In such event 123NET shall at all times be the owner thereof;
    2. 5.1.2. the Wi-Fi equipment if the installation is in the form of a fixed Wi-Fi installation. In such event 123NET shall at all times be the owner thereof;
    3. 5.1.3. the Customer Premises Equipment (which in technical terms is referred to as "CPE" and is generally known as the router), 123NET being at all times herein the owner thereof unless the Subscriber has purchased and paid for the router.
  2. 5.2. Should the Agreement be terminated for whatever reason and unless otherwise expressly provided for in the Agreement, within a period of no longer than seven days from the date of the termination of the Agreement:
    1. 5.2.1. the Subscriber must return the ONU and its power supply to 123NET;
    2. 5.2.2. the Subscriber must return the router and its power supply to 123NET if the router is owned by 123NET; and
    3. 5.2.3. 123NET's technicians shall remove the Wi-Fi equipment from the premises. Due to the sensitive nature of this equipment, it can only be removed from the premises by a technician appointed by 123NET.
  3. 5.3. In the event of any of the equipment not being returned to 123NET within the aforesaid period of seven (7) days or should such equipment be found to be damaged upon being returned back to 123NET, the Subscriber shall in addition to any other amounts owing to 123NET in terms of the Agreement, be liable for paying the costs of replacing such equipment, due consideration being given to normal wear and tear. Should the equipment be lost, stolen, damaged, sold, leased, mortgaged, transferred, assigned, encumbered, or not returned to 123NET, the Customer agrees to pay 123NET the reasonable value of such equipment, together with any costs incurred by 123NET in seeking possession of such equipment.
  4. 5.4. 123NET reserves the right to suspend or terminate the service if the Subscriber is found to be using the service for any illegal, fraudulent, or unauthorized purposes.
  5. 5.5. 123NET may suspend or terminate the service if the Subscriber's use of the service is causing damage or disruption to 123NET's network or other subscribers.
  6. 5.6. Except for equipment that the Customer has paid for in full, all equipment installed or provided by 123NET remains the property of 123NET.
  7. 5.7. The Customer agrees to take reasonable care of the equipment, not sell, lease, mortgage, transfer, assign or encumber it, not relocate it without 123NET's knowledge and permission, and return the equipment to 123NET at the termination of this Agreement at the Customer's expense.
  8. 5.8. 123NET expressly advises, and the Customer acknowledges and accepts that the Subscriber Equipment is not manufactured by 123NET, but by third parties. In most cases, 123NET will not be able to open certain Subscriber Equipment or to test or operate the selected Subscriber Equipment to ensure that they are fit for purpose and/or are intact before they are handed to the Customer.
  9. 5.9. 123NET expressly stipulates and the Customer acknowledges that 123NET cannot warrant or guarantee that the Services and/or the Subscriber Equipment will:
    1. 5.9.1. be free of errors or interruptions;
    2. 5.9.2. be available;
    3. 5.9.3. be fit for any purpose;
    4. 5.9.4. not infringe on any third-party rights;
    5. 5.9.5. be secure and reliable, except where the Services, the Network Equipment and/or Subscriber Equipment are found to be defective and such defect has been solely caused by 123NET.
  10. 5.10. Risk in the loss, theft or damage of the Network Equipment, Managed Service Equipment and where relevant the Subscriber Equipment will pass to the Customer on the date of delivery to the Customer's premises. 123NET reserves the right to hold the Customer liable for the full replacement cost of the Managed Service Equipment or the relevant Subscriber Equipment and or any other 123NET equipment (and where the same equipment has been discontinued, then the full replacement cost of the most comparable available equipment).

6. THE DURATION OF THE AGREEMENT IN RESPECT OF NON-FIXED TERM PERIOD

  1. 6.1. The provisions of this paragraph 6 will only apply in the event of:
    1. 6.1.1. the Subscriber having chosen a non-fixed term period package; or
    2. 6.1.2. the expiry of the fixed term period unless otherwise expressly provided for in the Agreement and subject to any other applicable terms and conditions contained in the Agreement.
  2. 6.2. The Agreement shall in such event commence on the commencement date and shall endure for the period / package (being "the non-fixed term period") selected by the Subscriber on the face of the Agreement, unless otherwise expressly provided for in the Agreement.
  3. 6.3. In the event of the non-fixed term period being in the form of a holiday package and unless otherwise expressly provided for in the Agreement, the Agreement shall commence on the date of installation and thereafter the service can be activated on either a one, two or four-week prepaid period basis with a new commencement date selected by the Subscriber.
  4. 6.4. In the event of the non-fixed term period being in the form of a month-to-month package and unless otherwise expressly provided for in the Agreement, shall continue to operate on a month-to-month basis commencing on the commencement date provided that either party to the Agreement may terminate the Agreement by giving to the other party not less than one calendar month's written notice.
  5. 6.5. In the event of the Agreement being terminated prematurely due to a breach on the part of the Subscriber of any of its obligations in terms of the Agreement, 123NET shall be entitled to claim damages from the Subscriber (in addition to any other amounts which may be due by the Subscriber in terms of the Agreement) which shall be calculated on the following basis:
    1. 6.5.1. all the remaining subscriptions due for the remainder of the non-fixed term period; plus
    2. 6.5.2. 123NET's CPE cost (if applicable); plus
    3. 6.5.3. the once-off installation and/or activation charges (if applicable).
  6. 6.6. Unless otherwise provided for in the Agreement, 123NET shall be entitled to terminate the Agreement at any time by giving three months written notice to the Subscriber provided that such notice shall not contravene any of the applicable provisions of the CPA.
  7. 6.7. Downgrade, pause, and termination requests require a minimum of 30 (thirty) days’ prior notice. Such notice must be provided only by the account holder, either via email or phone call.
  8. 6.8. The pausing process also requires that all due payments are cleared, and the service will be resumed within 48 hours.
  9. 6.9. Holiday plan requests must be submitted at least two days prior to the desired service resumption date.
  10. 6.10. Cancellation requests and refunds for holiday packages are not permitted once the invoice has been generated and dispatched.
  11. 6.11. Month-to-Month Service Agreement Options
    1. 6.11.1. With Pre-Installed Fibre Cables: When 123NET's fibre cables are already installed at the Subscriber's premises, and the Subscriber opts for a month-to-month contract, the Subscriber may terminate the contract by submitting a 30 days cancellation notice. The termination shall take effect after a thirty (30) days notice period, during which the Subscriber shall be liable to pay the full month's subscription fee, as payments are due monthly in advance. The Subscriber must return all devices provided by 123NET, including but not limited to the Optical Network Unit (ONU) and Router, or an ONU-Router combo, within seven (7) days after the termination of the contract. If the devices are not returned within this 7-day period, a bill for the cost of the devices shall be charged on the next day. The subscriber may pause the account for a maximum of 3 months in a 12 month period. If the subscriber exceeds this pause limit, the account will be terminated. If the account is paused for more than 3 consecutive months, 123NET will consider it as a cancellation, the equipment must be returned, and the account will be terminated. If the equipment is not returned within 7 days of the service being paused, the customer will be charged an equipment fee based on the price list which can be requested from the 123NET sales team. Upon termination of the Agreement, the customer must return the equipment (ONU + Router or ONU-Router) to 123NET within 7 days of the termination date. In the event that the equipment is not returned within this timeframe, the customer will be invoiced for the cost of the unreturned equipment as per the current price list. Upon return the equipment will be tested. If the equipment is found to be broken or non-functional, the customer will be charged for the repair or replacement cost of the equipment. If the subscriber requests 123NET to collect the equipment, a standard call out fee will apply as per 123NET's current rates.
    2. 6.11.2. Regular Month-to-Month Period (if NO 123NET CABLES in the unit): In the case of month-to-month contracts where 123NET's cables are not pre-installed at the Subscriber's premises, the Subscriber shall pay a construction fee as per agreement in advance, prior the installation. The Agreement shall continue to operate on a month-to-month basis commencing on the commencement date (Activation date). Any party may terminate the Agreement by giving to the other party not less than one calendar month's written notice. The service CAN be paused with a 1-month notice period required if the customer wishes to pause the account. The notice should be given in advance - before the 20th of the month prior to the pause. For a period of 12 months, the subscriber may pause the account for a maximum of 3 months. If the subscriber exceeds this pause limit, the account will be terminated. If the account is paused for more than 3 consecutive months, 123NET will consider it as a cancellation, the equipment must be returned, and the account will be terminated. If the equipment is not returned within 7 days of the service being paused, the customer will be charged an equipment fee based on the current price list. Upon termination of the Agreement, the customer must return the equipment installed initially (ONU + Router or ONU-Router) to 123NET within 7 days of the termination date. In the event that the equipment is not returned within this timeframe, the customer will be invoiced for the cost of the unreturned equipment as per the current price list. Upon return the equipment will be tested. If the equipment is found to be broken or non-functional, the customer will be charged for the repair or replacement cost of the equipment. If the customer requests 123NET to collect the equipment, a standard call out fee will apply as per 123NET's current rates.
    3. 6.11.3. Month to month without Fibre Pre-Installed (12 months clawback): In the case of month-to-month contracts where 123NET's cables are not pre-installed at the Subscriber's premises, the Subscriber shall be obligated to maintain uninterrupted service payments for a period of twelve (12) months. On the expiry of the fixed term period, the Agreement will automatically continue on a month-to-month basis unless the Subscriber requests for cancelation. After fulfilling the initial twelve-month payment obligation, the Subscriber may cancel the contract at any time by submitting a cancellation notice before the 20th of the month. The termination shall take effect after a thirty (30) days notice period, during which the Subscriber shall be liable to pay the full month's subscription fee, as payments are due monthly in advance. The Subscriber must return all devices provided by 123NET, including but not limited to the Optical Network Unit (ONU) and Router Device, or an ONU-Router, within seven (7) days after the termination of the contract. If the devices are not returned within this 7-day period, a bill for the cost of the devices shall be charged.
    4. 6.11.4. In the event of the Agreement being terminated prematurely due to a breach on the part of the Subscriber of any of its obligations in terms of the Agreement, 123NET shall be entitled to claim damages from the Subscriber (in addition to any other amounts which may be due by the Subscriber in terms of the Agreement) which shall be calculated on the following basis:
      1. 6.11.4.1. all the remaining subscriptions due for the remainder of the non-fixed term(month-to-month period) period; plus
      2. 6.11.4.2. 123NET's CPE cost (if applicable); plus
      3. 6.11.4.3. the once-off installation and/or activation charges (if applicable).
  12. 6.12. The terms and conditions shall comply with the Electronic Communications and Transactions Act (ECTA) and the Protection of Personal Information Act (POPIA)
  13. 6.13. 123NET shall include clauses related to data protection, privacy, and information security in compliance with the relevant laws.

7. THE DURATION OF THE AGREEMENT IN RESPECT OF THE FIXED TERM PERIOD

  1. 7.1. The provisions of these paragraphs 7 shall only apply in the event of the Subscriber having selected a package on the face of the Agreement, the duration of which is to operate for a fixed term period.
  2. 7.2. The Agreement will commence on the Commencement Date and will endure for the fixed term period relating to the package selected by the Subscriber on the face of the Agreement, unless otherwise expressly provided for in the Agreement. Upon the expiry of the fixed term period, the Agreement shall automatically continue on a month-to-month basis in accordance with clause 6.10, unless the Subscriber notifies 123NET in writing of its intention to terminate at least thirty (30) days prior to the expiry of the fixed term period.
  3. 7.3. If the Subscriber is a natural person and unless otherwise expressly provided for in the Agreement:
    1. 7.3.1. On the expiry of the fixed term period, the Agreement will automatically continue on a month-to-month basis unless:
      1. 7.3.1.1. the Subscriber expressly notifies 123NET in writing at least one month prior to the expiry of the fixed term period of its intention to terminate the Agreement on the expiry date; or
      2. 7.3.1.2. the Subscriber agrees to a renewal of the Agreement for a further fixed term.
    2. 7.3.2. The Subscriber may cancel the Agreement provided that:
      1. 7.3.2.1. the Subscriber gives 123NET the written notice to terminate the Agreement in terms of paragraph 7.3.1.1 above; and
      2. 7.3.2.2. the Subscriber shall remain liable to 123NET for any amounts owed to 123NET in terms of the Agreement up to the date of cancellation.
    3. 7.3.3. The Subscriber (if a natural person) may at any other time cancel the Agreement by giving 123NET not less than thirty (30) days' notice in writing provided that 123NET may impose a reasonable cancellation penalty which shall be the sum of the following amounts:
      1. 7.3.3.1. all the remaining subscriptions due till the end of the fixed term period; and
      2. 7.3.3.2. if applicable, the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement.
    4. 7.3.4. If the Subscriber is a juristic person and unless otherwise expressly provided for in the Agreement:
      1. 7.3.4.1. Upon the expiry of the fixed term period and provided that all amounts due to 123NET up to the date of the expiry of the fixed term period have been paid in full, the Agreement shall continue to operate on a month-to-month basis provided that the monthly fee to be paid by the Subscriber during this period shall be based on the current rate charged by 123NET at the expiry of the fixed term period in respect of the same package which was selected by the Subscriber when first entering into the Agreement.
      2. 7.3.4.2. In the event of the Agreement being terminated prematurely due to a breach on the part of the Subscriber of any of its obligations in terms of the Agreement 123NET shall be entitled to claim damages from the Subscriber (in addition to any other amounts which may be due by the Subscriber in terms of the Agreement) which shall be calculated on the following basis:
        1. 7.3.4.2.1. all the remaining subscriptions due for the remainder of the the fixed term period term period; plus
        2. 7.3.4.2.2. if applicable, the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement; plus
        3. 7.3.4.2.3. 123NET's CPE cost (if applicable); plus
        4. 7.3.4.2.4. the once-off installation and/or activation charges (if applicable).
    5. 7.3.5. Unless otherwise provided for in the Agreement, 123NET shall be entitled to terminate the Agreement at any time by giving three months written notice to the Subscriber provided that such notice shall not contravene any of the applicable provisions of the CPA.

8. DIRECT MARKETING -- THE COOLING OFF PERIOD

  1. 8.1. If the Agreement resulted from any direct marketing and the provisions of the CPA are applicable, the Subscriber has the right to terminate the Agreement without reason or penalty by giving written notice to 123NET within five business days ("the cooling off period") after:
    1. 8.1.1. the date on which the Agreement was concluded; or
    2. 8.1.2. the services or the equipment were delivered to the Subscriber at the premises, whichever event occurs the latest.
  2. 8.2. In the event of the Subscriber having given the written notice referred to in paragraph 8.a above on time:
    1. 8.2.1. all the equipment which was delivered to the Subscriber in terms of the Agreement must be dealt with in terms of paragraphs 5.2 and 5.3 above respectively; and
    2. 8.2.2. 123NET shall be entitled to deduct from any reimbursement or refund due to the Subscriber in return, a reasonable amount for the use and/or depletion of the equipment, for example the cost of replacing the original packaging of the equipment should the packaging have been opened and/or tampered with.

9. FEES AND PAYMENT

  1. 9.1. All fees and/or charges and/or prices which appear on the face of the Agreement include Value Added Tax unless otherwise expressly stated.
  2. 9.2. The fees associated with the period/package which the Subscriber has selected on the face of the Agreement shall be paid by the Subscriber:
    1. 9.2.1. in the event of the Subscriber having chosen a holiday package the Subscriber shall pay in advance to 123NET:
      1. 9.2.1.1. one (1) week period: 50% of the standard monthly fee; or
      2. 9.2.1.2. two (2) week period: 75% of the standard monthly fee; or
      3. 9.2.1.3. four (4) week period: 100% of the standard monthly fee;
    2. 9.2.2. monthly in advance by no later than the 5th day of each month in the event of the Subscriber having chosen a month-to-month package; or
    3. 9.2.3. monthly in advance by no later than the 5th day of each month for the duration of the Agreement in the event of the Subscriber having chosen a fixed term period package.
  3. 9.3. The Subscriber agrees to pay the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement. Such amount shall be paid by the Subscriber upon presentation of an invoice which shall be rendered by 123NET in respect of such installation/construction fee.
  4. 9.4. The additional fees which appear on the face of the Agreement shall be paid by the Subscriber upon presentation of an invoice which shall be rendered by 123NET in respect of such additional fees.
  5. 9.5. 123NET reserves the right to adjust and/or amend the services and pricing from time to time provided that 123NET gives the Subscriber at least one calendar month's written notice of such adjustment and/or amendment.
  6. 9.6. All payments to be made by the Subscriber in terms of the Agreement shall be made without deduction by way of a debit order (in which event the Subscriber shall be required to fully complete 123NET's debit order form and submit whatever other documentation which may be required in order to activate the debit order) or by electronic bank transfer (in which event the Subscriber must in making such payment use the correct beneficiary reference indicated on the monthly invoice) or in any other method which 123NET may from time to time require upon the Subscriber having received written notification of such alternative method of payment which 123NET may require.
  7. 9.7. Should 123NET not receive payment from the Subscriber of 123NET's fee (whether on a weekly and/or monthly basis depending on the package selected by the Subscriber on the face of the Agreement) or any other amount due by the Subscriber on time as required in terms of the Agreement, 123NET shall in addition to any other rights which 123NET may have in law and/or in terms of the Agreement to immediately without notice, limit or suspend the Subscriber's access to the services until such time as the outstanding amount has been paid in full.
  8. 9.8. In addition, the Subscriber shall pay 123NET:
    1. 9.8.1. all bank charges incurred by 123NET as a result of the Subscriber's failure to honor any payment/payments made by the Subscriber in terms of the Agreement;
    2. 9.8.2. any reconnection fees; and
    3. 9.8.3. all legal costs incurred by 123NET on an attorney and client basis in recovering any outstanding amounts from the Subscriber.
  9. 9.9. If the Subscriber is on a Debit Order payment method and the Debit Order is rejected or unsuccessful for any reason, the Subscriber shall be liable for a penalty fee as specified in the Service Agreement signed by the Subscriber.
  10. 9.10. If the Subscriber, for any reason, makes an Electronic Fund Transfer (EFT) to 123NET's account while also being on a Debit Order payment method, resulting in a double payment of the monthly fee, 123NET shall not issue a refund. Instead, the excess amount shall be added as a credit to the Subscriber's account. Refunds shall only be considered in exceptional cases where the Subscriber has made a substantial payment unrelated to the services provided by 123NET.
  11. 9.11. EFT payments around the debit dates of the 3rd and 15th are non-refundable, as any issues arising from these transactions are not attributable to 123NET.
  12. 9.12. Payments with incorrect references may require up to 5 days for manual allocation.
  13. 9.13. Payments with incorrect references will incur a manual processing fee as stated in the Service Agreement.
  14. 9.14. Amendments to banking details submitted subsequent to the completion of the debit order form will be accepted solely prior to the scheduled debit dates of the 3rd and 15th.
  15. 9.15. Considering the disclosures in clauses 5.8 and 5.9, Customer agrees that it will not be allowed to:
    1. 9.15.1. Withhold any amounts due and owing to 123NET; or
    2. 9.15.2. Deduct any monies; or
    3. 9.15.3. Allege a breach of contract in respect of any temporary unavailability of the Services, the Network Equipment or the Managed Service Equipment, except and to the degree that 123NET is solely responsible for any such unavailability or failure.

10. INSTALLATION AND ACCESS TO THE PREMISES

  1. 10.1. Subject to reasonable prior notice and unless otherwise arranged between the parties, the Subscriber hereby agrees to accept the installation of 123NET's fibre network as well as all the equipment associated therewith as provided for in the Agreement during Business Hours.
  2. 10.2. Should the Subscriber not afford 123Net's employees or agents access to the premises at the time previously arranged between the parties for the installation of the equipment on the premises, 123NET shall be entitled to charge the Subscriber a reasonable call out fee which for the purposes hereof shall be regarded as being an "Additional Fee".
  3. 10.3. The Subscriber acknowledges that the payment of the construction fee for the corresponding services chosen by the Subscriber must be paid in full prior to the installation, where applicable.
  4. 10.4. The Subscriber undertakes to ensure that 123NET's employees or agents are afforded access to the premises throughout the duration of the Agreement subject to reasonable prior notice.
  5. 10.5. 123NET undertakes to ensure that its employees or agents are properly supervised and that they comply with all access policies as may be in place at the premises.
  6. 10.6. The Subscriber may require positive identification from 123NET's employees, agents or contractors before having access to the premises.
  7. 10.7. The Subscriber warrants that:
    1. 10.7.1. where necessary he has obtained all necessary permissions from the owner of the premises and that such owner has consented to the installation of the equipment on the premises; and
    2. 10.7.2. 123NET has the right to install, locate and operate the equipment at the premises.
  8. 10.8. The Subscriber is required to provide a secure area or space in the premises which will facilitate the installation of the equipment, for example access points that may be installed on walls, the roof and other suitable places and routers, switches and UPS.

11. THE USE OF EQUIPMENT BY THE SUBSCRIBER

  1. 11.1. The Subscriber understands and accepts that he is solely responsible, thereby accepting the consequences thereof for:
    1. 11.1.1. all his own activities relating to the use of the equipment and/or the installation of 123NET's fibre network; and
    2. 11.1.2. the security and the maintenance of any information stored or transmitted through the equipment and/or the services, which includes passwords and access codes.
  2. 11.2. Should the Subscriber send out any content or information which violates any law or regulation using 123NET's fibre network and/or services; and/or
    1. 11.2.1. should the Subscriber resell and/or give access to 123NET's fibre network and/or services to any other third party outside the premises, any such conduct will amount to an unlawful or illegal activity which is a serious offense and/or a material breach of the Subscriber's obligations in terms of the Agreement, thereby entitling 123NET to immediately and without notice terminate and/or suspend the provision of services to the Subscriber in terms of the Agreement or to cancel the Agreement.
  3. 11.3. The Subscriber shall be responsible for maintaining the equipment installed by 123NET on the premises and must ensure that all such equipment be maintained in good working order.
  4. 11.4. The Subscriber may not move, alter or in any way interfere with the installation of the equipment without first notifying 123NET in writing who will then attend to moving and/or altering the installation, as the case may be, should 123NET consider it necessary to do so.
  5. 11.5. The Customer agrees to inform their landlord, if applicable, that the equipment is owned by 123NET and therefore not subject to the landlord's hypothec.
  6. 11.6. The Customer agrees to connect the equipment to a surge protector. If the equipment is not connected to a surge protector and becomes damaged as a result, the Customer shall be liable for the reasonable value of such equipment, together with any costs incurred by 123NET in replacing or repairing the equipment.
  7. 11.7. You must identify a suitable location for the Equipment. The location must be dry, free from vibration and well ventilated. Installation is only possible if the distance from the termination point Access Network Equipment and a 220V energy supply to the position the Equipment is not greater than 1 meters.
  8. 11.8. In the event of failure of the Equipment, 123NET will repair or replace (at 123NET discretion) the Equipment where such failure is covered by the warranty of the original equipment manufacturer. Where the Equipment is replaced, you must return the original Equipment to 123NET.
  9. 11.9. The customer accepts liability for any call out fees charged by 123NET because of repair or replacement of Equipment.
  10. 11.10. The customer accepts liability for any costs incurred by 123NET because of repair or replacement of Equipment where the warranty period of the original equipment is over, other than as previously agreed to in writing by 123NET.

12. INTERNET SPEEDS AND SERVICE INTERRUPTION

  1. 12.1. The actual speed of the internet connection may vary based on factors such as hardware and software limitations of the Subscriber's equipment and other factors which are beyond the control of 123NET. 123NET therefore does not guarantee the speeds of the actual internet services.
  2. 12.2. 123NET will endeavor to limit service interruption occurrences and the length thereof. 123NET does not therefore warrant an uninterrupted fibre service connection. In limiting any such service interruptions, 123NET will attempt to ensure that the Subscriber is warned in advance of any routine maintenance that needs to be done on the network. Any unforeseen maintenance or outages will be handled in such a way as to cause minimum disruption to the Subscriber. To the extent permitted by law, 123NET shall not be liable for any service interruption.
  3. 12.3. In the event of the Subscriber detecting a service interruption that is not related to the local (home or office) network, the Subscriber can notify 123NET using the official contact and support channels. The Subscriber can follow 123NET's notification messages using the above mentioned support channels.

13. RISK

  1. 13.1. The risk of loss or damage to the equipment provided and/or installed by 123NET on the premises shall pass to the Subscriber upon its delivery to the premises.
  2. 13.2. 123NET has no obligation whatsoever to correct, repair or support any equipment or software or hardware that has not been supplied by 123NET in terms of the Agreement and 123NET shall have no responsibility whatsoever for such equipment.
  3. 13.3. The Subscriber further acknowledges that all equipment installed in the premises by 123NET does not form part of the immovable property of the Subscriber. In legal terms the equipment shall not accede to the Subscriber's immovable property.

14. PERSONAL INFORMATION

  1. 14.1. Any personal information relating to the Subscriber (for example, email address, physical address, telephone number, location information or any other personal information which falls within the ambit of the Protection of Personal Information Act No. 4 of 2013) which may be disclosed by the Subscriber by virtue of the Agreement shall:
    1. 14.1.1. be used and processed by 123NET solely for the purposes of enabling 123NET to perform in terms of the Agreement, to improve and/or extend the services and to enforce its rights in law when necessary in terms of the Agreement; and
    2. 14.1.2. be relevant and necessary for the purposes for which it is intended to be used for as set out in the Agreement.
  2. 14.2. 123NET shall:
    1. 14.2.1. maintain the integrity and confidentiality of such personal information subject to the purposes contemplated in the Agreement; and
    2. 14.2.2. retain such personal information until required or prescribed by law thereafter the personal information shall be destroyed.
  3. 14.3. The Subscriber consents to and authorises 123NET to:
    1. 14.3.1. use and process any such personal information for the purposes contemplated in the Agreement; and
    2. 14.3.2. contact and obtain information at any time during the duration of the Agreement from any registered credit bureau or credit provider in order to assess the behavior, profile, payment patterns and credit worthiness of the Subscriber provided that any such information shall be regarded by 123NET as being personal information.

15. COMPLIANCE

  1. 15.1. 123NET is the holder of an electronic communications network service and electronic communications services licenses.
  2. 15.2. 123NET shall at its own cost and expense be responsible for obtaining and thereafter maintaining whatever regulatory consents and licenses that may become necessary to enable it to render the services to the Subscriber in terms of the Agreement.
  3. 15.3. Should 123NET not be able to obtain any of the consents and/or licenses or should any such consent or license having been granted, be suspended or revoked by the relevant authority, either party shall be entitled by written notice to the other to terminate the Agreement upon thirty (30) days written notice to remedy the situation.

16. DOCUMENTS

  1. 16.1. Any specifications, drawings and other documents which may be furnished by 123NET to the Subscriber from time to time shall remain the property of 123NET and all copyright and/or any other rights which may arise therefrom shall always remain with 123NET. On demand, the Subscriber must immediately return such documents to 123NET.

17. LIMITATION OF LIABILITY

  1. 17.1. 123NET accepts no liability for any loss or damage (including, but not limited to costs, penalties, fines, expenses, loss of profits, whether directly and/or indirectly) to the premises or the equipment arising out of the provision, installation or maintenance of the equipment and/or 123NET's fibre service, unless such loss or damage to the premises or equipment is caused due to the gross negligence of 123NET's employees or its agents.
  2. 17.2. 123NET accepts no liability for any loss or damage to the equipment arising out of the Subscriber's use of the equipment.
  3. 17.3. 123NET accepts no liability for any loss or damage arising out of the use of the equipment and/or 123NET's fibre service, including any loss or damage due to using the internet and/or transferring files and contents.
  4. 17.4. 123NET shall not be liable for any indirect, incidental, special, or consequential damages arising from the use of the service, including but not limited to loss of profits, business interruption, or loss of data.

18. CHANGE OF OWNERSHIP

  1. 18.1. In the event of the sale of the premises or portion thereof, the Subscriber shall notify the purchaser of the premises or any portion thereof of the 123NET infrastructure. The Agreement shall terminate in the event of such purchaser signing a new Agreement with 123NET and in such event the Subscriber shall not be liable for any of 123NET's early cancellation fees.

19. CONFIDENTIAL INFORMATION

  1. 19.1. In addition to the provisions of paragraph 16.1 above, the Subscriber further acknowledges and agrees that the Agreement together with all schedules, drawings as well as any other documents which may have been exchanged with 123NET prior to the parties entering into the Agreement as well as the duration of the Agreement constitute "confidential information" unless such information is in the public domain.
  2. 19.2. Each party must:
    1. 19.2.1. protect the confidential information in the manner and with the endeavor of a reasonable person protecting his own confidential information;
    2. 19.2.2. use the confidential information only for the purposes of the Agreement and/or the parties carrying out their respective obligations in terms hereof;
    3. 19.2.3. not make any announcement whether in a written and/or electronic format using any form of media about the agreement and/or any aspect thereof without the approval of the other party.
  3. 19.3. The parties acknowledge and agree that for the purposes of Section 64(1) of the Promotion of Access Information Act No. 2 of 2000, the confidential information is provided in confidence by the parties.

20. INTELLECTUAL PROPERTY RIGHTS

  1. 20.1. Any intellectual property rights which 123NET may have in and to the services and/or any of the equipment whether by common law and/or otherwise will always remain with 123NET and the Subscriber agrees not to do anything or allow anything to be done that may infringe 123NET's rights and the Subscriber hereby indemnifies 123NET against any claims, actions and proceedings that may arise as a result of the Subscriber infringing or violating 123NET's intellectual property rights.

21. BREACH

  1. 21.1. Should the duration of the Agreement operate on a fixed term basis and should the Subscriber be a natural person who breaches any of the provisions of the Agreement, 123NET may during the fixed term period, terminate the Agreement on twenty (20) days written notice after the Subscriber receives written notice to remedy the breach and the Subscriber fails to remedy such breach within the time period allowed to do so.
  2. 21.2. Subject to the provisions of paragraph 21.1 and unless otherwise expressly provided for in the Agreement, should either party breach any of the terms and conditions of the Agreement, then the aggrieved party shall give the other party (being the defaulting party) written notice to remedy such breach within a period of (7) seven days after receipt of the written notice. Should the defaulting party not comply with the said written notice within the said period of seven days, the aggrieved party shall be entitled to claim immediate payment and/or performance of all of the defaulting parties obligations without prejudice to the aggrieved parties right to claim damages or any rights as the aggrieved party may have whether in terms of the Agreement or at law.
  3. 21.3. If there is a breach (Debit order rejection) and the account is not paid immediately (within 2 days) via EFT, the customer shall be liable for the following fees:
    1. 21.3.1. Installation fee: R2500
    2. 21.3.2. Debit rejection fee: R150

22. CONSENT TO JURISDICTION OF THE MAGISTRATE'S COURT

  1. 22.1. The parties hereby consent to the jurisdiction of the Magistrate's Court in respect of any claim which a party may have against the other arising directly or indirectly from the Agreement, whether or not the amount thereof would otherwise exceed such jurisdiction, provided that 123NET (at its option) may institute legal proceedings in the High Court of South Africa, in which event the parties consent to the jurisdiction of the Durban High Court or any other name/title which may subsequently be given thereto.
  2. 22.2. The agreement shall be governed by the laws of South Africa.
  3. 22.3. Any disputes arising from the agreement shall be subject to the jurisdiction of South African courts.

23. NOTICES

  1. 23.1. Any notice which any party may be required to give to the other party in terms of the Agreement as well as any other documents issue by any court of law and/or by any other authority shall be sent to the addresses which are set out on the face of the Agreement and which addresses are in legal terms known as "the domicilium citandi et executandi address" of each party.
  2. 23.2. Each party may be entitled from time to time by written notice to the other party to change its aforesaid address to any other address within the Republic of South Africa which is not a post office box.
  3. 23.3. Any notice which is given by either party to the other shall:
    1. 23.3.1. if delivered by hand during normal business hours of the addressee at the addressee's aforesaid address shall be deemed/regarded to have been received by the addressee on the date of delivery;
    2. 23.3.2. if given by email shall be deemed to have been received by the addressee on the first working day following the day of the successful transmission thereof.
  4. 23.4. However, for the purposes of this paragraph a written notice which is actually received by the addressee shall be regarded as being adequate written notice even though such notice may not have been sent to the addressee's aforesaid chosen address.

24. FORCE MAJEURE

  1. 24.1. A force majeure is an unforeseeable circumstance that may prevent one of the parties from carrying out his obligations in terms of the Agreement. Such unforeseeable circumstances may be in the form of fire, accident, government acts, explosion, industrial dispute, a pandemic or any other act, omission or event beyond the reasonable control of such party.
  2. 24.2. In the event of either party not being able to perform in terms of the Agreement by virtue of such force majeure, then such party shall not incur any liability by reason of any such failure to fulfill any of its obligations in terms of the Agreement provided that such party bears the responsibility of proving that such failure was occasioned by a force majeure.

25. AUTHORITY TO SIGN THE AGREEMENT

  1. 25.1. If the Subscriber is a juristic person, the person who signs the Agreement on behalf of the Subscriber warrants that he has the authority to enter into the Agreement and to sign the Agreement on behalf of the Subscriber.

26. APPLICABLE LAW

  1. 26.1. The Agreement shall at all times be interpreted and governed by the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with the South African law.

27. SEVERABILITY

  1. 27.1. Each of the provisions of the Agreement shall be considered as separate terms and conditions and in the event that the Agreement is effected by any law or legislation (or any changes to such law and/or legislation) or if any provisions contained in the Agreement are by virtue of the Law and/or legislation and/or otherwise, held to be illegal, invalid, prohibited or enforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, provision or unenforceability and each of the remaining provisions of the Agreement shall continue to remain in full force and effect as if the illegal, invalid, prohibited or unenforceability was not a part thereof.

28. CESSION

  1. 28.1. The Subscriber shall not be entitled to transfer any of his rights (which in legal terms is known as "cede") or transfer any of his obligations (which in legal terms is known as "assign") which he may have in terms of the Agreement to any third party unless 123NET has consented thereto in writing, which consent may not be unreasonably withheld.

29. AMENDMENTS

  1. 29.1. The Agreement constitutes the entire agreement between the parties.
  2. 29.2. However, in order to give effect to improving the services 123NET shall have the right to amend the Agreement and to modify any function or part of the service as it deems necessary provided that 123NET gives written notice to the Subscriber of such changes. Should the Subscriber continue to use the services after having received the written notice it shall be deemed that the Subscriber has accepted the amendment.
  3. 29.3. 123NET reserves the right to modify the terms and conditions at any time.
  4. 29.4. The Subscriber's continued use of the service after such modifications constitutes acceptance of the new terms and conditions.

30. NON-VARIATION

  1. 30.1. Unless otherwise expressly provided for in the Agreement any changes and/or amendments to and/or variation of any terms of the Agreement shall only be binding if it is reduced to writing and signed by a duly authorized representative from both parties.

31. INDULGENCES

  1. 31.1. Any delay and/or hesitation on the part of any of the parties in exercising any rights in terms of the Agreement, shall not under any circumstances constitute an abandonment (which in legal terms is known as "a waiver") of such right on the part of such party and such party shall be entitled to require the other party to strictly comply with the terms of the Agreement.

32. DUPLICATE AND SCANNED VERSION IN PLACE OF ORIGINAL AGREEMENT

  1. 32.1. The Subscriber agrees that the Agreement may be scanned and the paper version thereof destroyed and agrees to the scanned version and waives his right to dispute the authenticity of the scanned version.

33. CONTENT RESPONSIBILITY

  1. 33.1. 123NET is not responsible for any content transmitted through its network.
  2. 33.2. The Subscriber is solely responsible for any content they create, transmit, or store using the service.

34. MONITORING RIGHTS

  1. 34.1. 123NET reserves the right to monitor the Subscriber's use of the service to ensure compliance with the terms and conditions and to protect the integrity and security of its network.

35. ACCOUNT SECURITY

  1. 35.1. The Subscriber is responsible for maintaining the confidentiality of their account information and for all activities that occur under their account.

36. LEGAL REVIEW

  1. 36.1. The terms and conditions shall be reviewed by a qualified legal professional specializing in telecommunications law in South Africa to ensure legal enforceability and compliance with relevant laws and regulations.

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