Latest Update: 31/01/2023
1. Definitions and Interpretations
1.1. In these Terms and Conditions, the following terms and phrases shall have the following meaning, unless the context otherwise requires:
1.1.1. Activation Date: The date on which enabling of the Services to the Customer Site takes place by the Network Operator
1.1.2. Best Effort: A Best Effort service refers to a delivery of a Service where the Network Operator does not give any guarantees on the level of service. The Network Operator will repair or restore faults in the shortest available time-frame
1.1.3. Billing Start Date: The Activation Date if the services are new services and/or require on-site installation to be performed; and the Amendment Date if the current Services are being updated by the way of an upgrade, downgrade, billing change and/or system configuration change
1.1.4. Business Day: Every day excluding Saturdays, Sundays, and any gazetted public holidays in the Republic of South Africa
1.1.5. Charges: Usage Charges, Installation Charges, Start Up Charges, Rental Charges, Monthly Fees, Reconnection Fees and any other charges or fees payable by the Customer to PacketSky in respect of the Services, as set out or referred to in the Quotation, as revised from time to time
1.1.6. Customer: the person or the legal entity that enters into the Quotation
1.1.7. Customer Portal: a portal provided by PacketSky that provides each customer private access to their accounts containing information on their services, it’s statistic and other financial aspects of provided services. The customers can also check their profile information, latest news and updates, important documents including financial documents and contracts, all messages received, or tickets submitted for support team on the portal. Access to the portal is available at https://portal.packetsky.com/portal/.
1.1.8. Confidential Information: all information (in whatever format) which: (i) relates to these Terms and Conditions; (ii) is designated as confidential by either Party; or (iii) relates to the business, affairs, networks, customers, products, developments, trade secrets, know-how and personnel of either Party, (iv) Customer Data and (v) any information which may reasonably be regarded as the confidential information of the disclosing Party;
1.1.9. Content: any content, personal information, game, message or similar service that is supplied to any person by means of the Network or by means of a third party’s network in the form of data, information, graphics, pictures, text, video or any other relevant format, which has the potential to become lost or corrupted from time to time;
1.1.10. Customer Data: includes, but not be limited to, Personal Information (including the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal and/or private information of the Customer, its employees or authorised users of the Services, and other data provided to or obtained by PacketSky and their respective agents in connection with the provision of the Services;
1.1.11. Customer Equipment: any telephony device, computer, hardware, software, systems, cabling and facilities provided by the Customer and used in conjunction with the Services Equipment in order to receive the Services
1.1.12. Customer Site: the physical location specified in the Quotation at which the Services are to be provided.
1.1.13. Emergency Works: works, the execution of which, at the time it is proposed to execute them, is required to put an end to, or prevent the arising of circumstances, then existing or imminent that are likely to cause: (i) danger to persons or property; (ii) the interruption of any service provided by the Network or the network generated by a third party;(iii) substantial loss to PacketSky or any third party
1.1.14. Force Majeure: any event or circumstance, which is not within the reasonable control of a Party and shall include without limitation, acting on instructions from the Authority or any other regulatory authority, acts of God, war, epidemic, pandemic, national lock-down, state of emergency, riots, floods, fire, natural disaster, explosion, prohibitive legislation or regulations, failure of power or utility supplies (including electronic communications) and acts or omissions of other providers of electronic communications service.
1.1.15. Initial Service Term: the total period for which the Services are provided as indicated in the Quotation;
1.1.16. “Installation Charge” or “Start Up Charge” or “Connection Charge”: a non-recurring charge for installation of the Services (including installation of any Service Equipment, third party links and switches and construction of fibre infrastructure) payable in accordance with clause 7. Installation Charges shall include for the avoidance of doubt any costs associated with a civil construction works for the installation of fibre optic cabling to the Customer Site, if applicable
1.1.17. Internet: the international interconnected network of networks using the TCP/IP protocol to exchange data communications
1.1.18. Internet Services: the services providing access to the Internet across the Network together with any related Services Equipment or support services
1.1.19. Link: The service terminating at the one end at a Network Interface Device at the Customers premises indicated in the Quotation and at the other end at the Network-to-Network Interface between PacketSky and the Network Operator.
1.1.20. Network: the optical fibre infrastructure and routes (and associated hardware installations), points of presence, network hubs and host computers, owned, operated or used by PacketSky in connection with the provision of the Services
1.1.21. Network Operator: An entity holding an electronic communications network services license issued to it by the Independent Communications Authority of South Africa, from whom PacketSky leases a Link to deliver the Service to the Customer
1.1.22. Party: PacketSky or the Customer (as the context requires), and “Parties” shall mean both PacketSky and Customer;
1.1.23. Personal Information: any information relating to a Party, its holding company, subsidiaries and divisions, directors, officers, employees, agents, contractors and customers, including (without limitation) information of the nature contemplated in the definition of “personal information” in POPIA and information processed by a Party pursuant to or as a result of this Quotation
1.1.24. POPIA: the Protection of Personal Information Act 4 of 2013, including any regulations thereto, as amended
1.1.25. Quotation: PacketSky’s quotation for new Services as signed by and accepted by the Customer which incorporates by reference these Terms and Conditions; also described as the Service Agreement.
1.1.26. Reconnection Fee: the fee charged by PacketSky to re-activate and/or reconnect the Services to the Network after any Services suspension in accordance with clause 15
1.1.27. Renewal Term: the total period for which the Services are automatically renewed after completion of the Initial Service Term or any subsequent Renewal Term
1.1.28. Service: the specific electronic communications service provided by PacketSky to the Customer, and as detailed in the Service Description & Pricing Schedule or in any applicable Quotation
1.1.29. Service Description: The section within the Quotation that describes the Services to be provided to the Customer by PacketSky.
1.1.30. Service Equipment: the hardware, software, systems, cabling, and facilities provided by PacketSky at the Customer Site to make available the Services to the Customer. Services Equipment shall not include the Network or any hardware or software that is the subject of a separate supply contract between PacketSky and the Customer, which Services Equipment will remain the property of PacketSky at all times
1.1.31. SLA: The Service Level Agreement defines the performance parameters of the Service provided by the Network Operator.
1.1.32. Termination Charge: A charge levied when the Customer terminates the Service prior to the completion of the Initial Term or any subsequent Renewal Term
1.1.33. VAT: The value-added tax charged in terms of the VAT Act.
1.2. PacketSky’s relationship with the Customer, without exception, is premised on the fact that the Customer conducts a bonafide business. PacketSky reserves the right to enter into a different contractual relationship with any Customer who does not conduct a business
1.3. No provision in these Terms and Conditions are intended to contravene the applicable provisions of the CPA and therefore all provisions of these Terms and Conditions, to the extent that these Terms and Conditions or any goods and services provided under these Terms and Conditions are governed by the CPA, must be treated as qualified, to the extent necessary, to ensure that the applicable provisions of the CPA are complied with.
2. Service Provision
2.1. By signing the Quotation the Customer agrees and accepts that it has entered into a valid and binding contractual agreement with PacketSky, comprising the terms set out herein.
2.2. PacketSky shall provide the Service to the customer as indicated in the Service Description. Service levels are available at https://www.packetsky.com/legal-policies-procedures/business-network-terms. Should no Service Level be available for the specified service, the Best Effort SLA will apply.
2.3. The Customer acknowledges that PacketSky depends upon the Network Operator and/or third-party service providers and that the delivery of services by PacketSky may be affected by circumstances beyond PacketSky’s control. PacketSky will use all reasonable endeavours to ensure a reliable service is provided to the Customer, backed up by the Network Operators SLA.
2.4. The Service comprises the provision of access to the internet at maximum speeds as set out in the description. The service is provided by connecting the customer to the PacketSky network with the use of a Link leased from a Network Operator.
2.5. Before delivery of the Services commence, PacketSky is entitled to carry out, to its satisfaction, appropriate credit checks against the Customer, to which the Customer hereby consents. In addition to the terms set out in the Quotation, the Services shall be subject to all mandatory legal requirements in the jurisdiction where the Services are to be provided, including but not limited to the regulatory environment as well as POPIA.
2.6. Without releasing it from any of its obligations, PacketSky shall be entitled at any time, and without notice, to use sub-contractors to perform some or all its obligations.
2.7. Services provided are agreed expressly on the condition that the Customer shall not resell, charge, transfer or otherwise dispose of the Services (or any part thereof) to any third party, unless otherwise previously agreed in writing.
2.8. PacketSky reserves the right from time to time to vary, suspend or terminate the Services provided, if the Services are unavailable or if any agreement allowing PacketSky to render the Services is terminated, or to change the configuration of the Network or the Services Equipment. PacketSky shall use commercially reasonable endeavours to give the Customer timeous notice of any such changes or variations.
2.9. The Customer accepts and agrees that it shall not have any claims for damages, losses or the like against PacketSky, nor will the Customer be entitled to withhold payment for any temporary Services failure or malfunction or loss of data or Content or failure of the Network, PacketSky networks, facilities, Services, or coverage.
3. Feasibility Studies
3.1. All Services are subject to a feasibility study by the Network Operator in order for them to determine whether there is adequate infrastructure to provide the service at the required location.
3.2. The included service offering, and pricing is based on an initial Desktop survey, and this is subject to change should the feasibility study result in amendments to the initial offering.
3.3. When a Network Operator amends a feasibility result, it may lead to increased installation times.
3.4. In the event of changes to the feasibility results leading to changes in pricing or installation times, the Parties shall co-operate in good faith to conclude amended terms and conditions that consider such changes that are necessitated through changed circumstances.
4. Installation of Link
4.1. The estimated lead time for installation is determined by the Network Operator, based on coverage, availability and scope of work required. This is subject to factors outside the control of the Network Operator, including municipal and private approvals.
4.2. Installation lead times are therefore best estimates, and PacketSky cannot be held liable in any way whatsoever for any delays in installation of the Link. PacketSky will however ensure that everything that is reasonably possible is done in order to ensure installation is completed within the estimated time-frame.
4.3. Should the Customer terminate the agreement with PacketSky before the Link is installed, the Customer will be liable for Termination Fees as detailed in these Terms and Conditions.
4.4. The Customer is responsible for making available the required accommodation, power, space, ducting and other facilities for the purposes of housing the transmission equipment of the Network Operator required for the provision of the Services to the Customer. This shall be made available at no cost to PacketSky.
4.5. The Customer shall ensure that the premises for which the request has been made are accessible at any reasonable time as may be required by PacketSky and/or the Network Operator to fulfill its obligations. The Customer shall be responsible for obtaining all third-party approvals and consents necessary for installation and use of the Services.
4.6. In case of jointly used office buildings there is often a common entrance point for telecommunication providers. Any facilities and extra cabling necessary in such circumstances, in particular the connection between the telco-entrance point / meet-me-room and Customer’s connection point, are not included in the provision of the Service and are the Customer’s sole responsibility. Any costs associated to utilize the telco entrance / meet-me-room shall be for the Customer’s account.
4.7. PacketSky has the right to replace the Link provided by a Network Operator with a Link provided by any other Network Operator or provided by itself, provided that the replacement Link shall not have lesser specifications than the Link that is being replaced.
5. Service Activation
5.1. Within 3 business days of the Network Operator configuring the Service for PacketSky’s network (“Activation Date”), PacketSky will conduct acceptable tests of the Service. Upon successful completion of these tests, Service Confirmation will be provided to the Customer. The Service shall be deemed as accepted by the Customer if no objection has been raised by the Customer within 2 business days following receipt of the Service Confirmation.
5.2. The Customer shall notify PacketSky of any fault detected on the Service during this testing period, in writing. The Service may only be rejected on the basis that the advertised technical specifications of the service has not been met.
5.3. Should the Customer notify PacketSky of its non-acceptance, PacketSky will conduct further tests until the Service meets the advertised technical standards.
5.4. Should the Customer not make use of PacketSky’s Equipment or not connect PacketSky’s Equipment to the Network Operators Equipment, PacketSky will be unable to conduct the acceptable tests of the Service. The Customer shall notify PacketSky of any fault detected on the Service within 5 business days of the Network Operator configuring the service, in writing. The Service may only be rejected on the basis that the advertised technical specifications of the service has not been met.
6. Duration and Commencement
6.1. The Services shall endure for the period indicated on the Service Description (“Initial Term”), calculated from the Commencement Date, whereafter it shall automatically renew for a further period (“Renewal Term”) as indicated in the Network Operator Terms in the “Service Level Agreement” section on the same terms as set out herein (save for variations in pricing), or on any amended terms if mutually agreed in writing or as provided for in any Quotation.
7. Charges and Payment Terms
7.1. The Customer shall pay the Charges in accordance with the Service Description within this Quotation.
7.2. Charges shall accrue from the Billing Start Date and may be invoiced by PacketSky for:
7.2.1. Installation Charges and/or Start Up Charges by PacketSky on or at any time after the installation.
7.2.2. Recurring Service Fees monthly in advance. Services provided for part of a month will be charged on a pro-rata basis.
7.3. Any invoice for Charges shall be due on the date of issue of the invoice and shall be paid by the Customer within 7 days from the date of issue of the invoice.
7.4. Interest shall accrue on any overdue invoice from the due date until payment (whether before or after judgement) at the ABSA Bank Prime Rate plus 5% (five percent).
7.5. All Charges or other sums which may from time to time be due, owing or incurred to PacketSky are stated exclusive of value added tax and any similar sales tax, levy or duty which shall be payable by the Customer and invoiced by PacketSky at the then prevailing rate when the Service is provided.
7.6. The Customer shall pay invoices by means of a monthly debit order or Electronic Fund Transfer (“EFT”). If the customer prefers to pay by means of EFT, it will be the responsibility of the costumer to use the correct customer reference as indicated on the invoice. The use of incorrect customer reference will result in incorrect allocations which may result in the suspension of services.
8. Upgrades and Downgrades
8.1. An application by the Customer to change the bandwidth range or technical characteristics of an existing Service from that which was originally reflected in the Service Description, shall be regarded as an application to upgrade (to a higher bandwidth) or downgrade (to a lower bandwidth) and not as an application to terminate the Service.
8.2. Once-off downgrade and/or upgrade fees and additional monthly fees may apply.
8.3. The Customer understands that Network Operators may not allow the downgrade of specific Services during the Initial Term.
9.1. The Customer shall provide PacketSky with at least three calendar months written notice of its intention to terminate the Services (in whole or in part).
9.2. Notwithstanding any provisions set out in these Terms and Conditions, if the Customers termination date is a date prior to the expiry of the Initial Term, or any subsequent Renewal Term, then the Customer shall be liable to PacketSky for a Termination Charge as follows:
9.2.1. Termination for any reason during the Installation Period: 100% of the monthly recurring service fees multiplied by the number of months indicated on the Service Description, with a minimum of three months, as well as any installation, penalty or administration fees charged by the Network Operator.
9.2.2. Termination at any time after the Commencement Date but before expiry of the Initial Term or subsequent Renewal Term, including but not limited to termination arising out of the Customer moving premises or termination by PacketSky as a result of the Customers breach of terms: 100% of the monthly recurring service fees for the remainder of the contract term
9.2.3. The Customer hereby acknowledges this to be a reasonable and genuine pre-estimate of PacketSky’s loss.
9.2.4. If the Customer requests a cancellation while its account is in arrears, or where it has breached any part of these Terms and Conditions, PacketSky may cancel the Services and claim payment for the full remainder of the Initial Term or Renewal Period, as the case may be.
9.2.5. PacketSky will only grant the Customer early termination after the Customer has paid and PacketSky has received the early Termination Charge
9.2.6. PacketSky may in its sole and unfettered discretion, terminate this Agreement immediately by notice if a suspension of the Services to a Customer pursuant to clauses 15.1.4 or 15.1.5 has continued for a period of at least 10 (ten) Business Days
9.2.7. Notwithstanding the provisions of clause 15, PacketSky may terminate these Terms and Conditions on 7 (seven) days’ prior notice if the Customer fails to make any payment,when due, in accordance with these Terms and Conditions.
10. Service Equipment
10.1. Except for Equipment that the Customer has paid for in full, all Equipment installed or provided by PacketSky, shall remain the property of PacketSky and the Customer agrees that they will:
10.1.1. Take reasonable care of such Equipment
10.1.2. Not sell, lease, mortgage, transfer, assign or encumber such Equipment
10.1.3. Not relocate such Equipment without PacketSky’s knowledge and permission
10.1.4. Permit PacketSky access to inspect, test, maintain and replace the Services Equipment at all reasonable times
10.1.5. Will inform if applicable, the Customers landlord that such Equipment is owned by PacketSky and therefore not subject to the landlord’s hypothec
10.1.6. Will return the Equipment to PacketSky at the termination of this Agreement at the Customers expense.
10.2. Should the Equipment be lost, stolen, damaged, sold, leased, mortgaged, transferred, assigned, encumbered or not returned to PacketSky, the Customer agrees to pay PacketSky the reasonable value of such Equipment, together with any cost incurred by PacketSky in seeking possession of such equipment.
11.1. The Service is provided to the specific address agreed with the Customer and cannot be transferred to a new location without prior written agreement from PacketSky and the Network Operator, if possible.
11.2. The relocation of the Service may result in additional installation and monthly service costs, as well as termination fees.
11.3. The Customer agrees that, should it move premises or wish to change the location where the Service is installed, the Customer shall apply to PacketSky in writing for such a change.
12.1. Support for billing and technical issues must be logged via the ticket system on our Customer Portal (https://portal.packetsky.com/portal/login). Login details will be provided upon activation of your account.
12.2. Any support requests raised telephonically or via email may result in delayed responses and/or turnaround times.
12.3. The Customer must provide PacketSky with accurate and up to date information when creating a ticket to report a suspected fault. PacketSky shall not be liable for any loss suffered because of inadequate information been provided, which may lead to a delay in service repair.
12.4. PacketSky provides full remote support during the following times:
12.4.1. Weekdays: 08:00 – 17:00
12.4.2. Weekends & Public Holidays: 09:00 – 15:00
12.5. Limited remote support is provided outside of these hours, and any support queries during these hours must be raised via a ticket on the Customer Portal.
12.6. Onsite support is available; however charges may apply to onsite support if the fault experienced was caused by the Customer. In the even that the fault was not caused by the Customer then no charges will be applied. All charges need to be accepted upfront before a technician is dispatched.
13. PacketSky Obligations
13.1. In performing its obligations under these Terms and Conditions, PacketSky shall always exercise the reasonable skill and care of a competent provider of electronic communications services
13.2. PacketSky shall use reasonable endeavours to ensure that each Service will conform to any service descriptions and/or service levels as set out, or referred to, in the Quotation and/or any applicable ancillary SLA. Where no service levels are agreed, the Services will be provided on a Best Effort basis.
13.3. Except as expressly set out herein, all warranties, representations, or agreements, with respect to the provision of the Services or otherwise, whether oral or in writing and whether express or implied, either by operation of law, statute or otherwise, are excluded to the fullest extent permitted by law. Without limiting the generality of the foregoing, PacketSky does not warrant that the Services will be uninterrupted or error free, or that defects in the Services will be remedied. The Customer assumes and accepts all risks associated with the Services. Under no circumstances will PacketSky be responsible for any loss or corruption of information, data, or Content, howsoever such loss was caused.
13.4. PacketSky warrants that it is duly organised, validly existing and in good standing under the laws of South Africa and possesses all the authority and necessary licenses and/or permits as required under law to enter into and perform its obligations hereunder.
14. Customer Obligations
14.1. The Customer shall grant or shall procure the grant to PacketSky or its authorised representatives or the Network Operator of such rights of access to each Customer Site, including any necessary consents to enable it to perform its obligations or exercise its rights under this Quotation. If the Services are not activated due to fault on the part of the Customer, including but not limited to, the Customer failing to obtain any necessary consents within 14 (fourteen) days from the date the Quotation was submitted, then PacketSky will be allowed to cancel this agreement and levy an early Termination Charge.
14.2. The Customer shall advise PacketSky in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer Site, and PacketSky shall use all reasonable endeavours to observe and ensure that its employees, authorised representatives and Network Operator observe such regulations and requirements as advised whilst at the Customer Site.
14.3. The Customer shall provide PacketSky with such facilities and information as PacketSky may reasonably require, to enable it to perform its obligations or exercise its rights under this Quotation. The Customer shall provide all documentation required by PacketSky to comply with applicable laws. PacketSky shall not be obliged to deliver any Services until all required documentation has been provided.
14.4. The Customer warrants and undertakes that it shall in its use of the Services comply with:
14.4.1. any relevant legislative and regulatory provisions and shall not use the Services for any illegal or immoral purpose and/or shall not cause damage to the Network or any third-party network; and
14.4.2. the current version of the PacketSky Fair/Acceptable Usage Policy (the “Policy”). The applicable Policy shall be available on the PacketSky website. The Customer shall, prior to commencing its use of the Services, read and understand the Policy. PacketSky reserves the right to change the Policy from time to time, effective upon posting of the revised Policy on its website without notice to the Customer
14.5. The Customer agrees to indemnify, defend and hold PacketSky (including its employees, agents, directors and shareholders) harmless from and against any claim for any losses, damages, costs and expense (including costs on an attorney and own client scale) incurred by Customer or by any third party as a result of any:
14.5.1. liability, fine, cost and/or damage resulting from the Customer’s failure to comply with the provisions of clause 14.3 above
14.5.2. liability arising out of the causing of any physical harm or damage to the Network or network of the Network Operator, including without limitation intentional or negligent acts or omissions of the Customer and any its agents,contractors, representatives and employees;
14.5.3. any liability for any Content conveyed via the Network;and
14.5.4. liability arising out any breach of the Customer of any warranty or provisions of this Quotation.
15. Service Suspension
15.1. PacketSky may, in its sole and unfettered discretion and without prejudice to any right which it may have,elect to immediately suspend the provision of the Services(or part thereof) at any time if PacketSky:
15.1.1. has reasonable grounds to believe it is entitled to terminate the Services pursuant to clause 9.
15.1.2. is obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other administrative or regulatory authority
15.1.3. needs to carry out Emergency Works to the Network or Services Equipment
15.1.4. has reasonable grounds to consider that the Services is being used fraudulently or illegally or in violation of clause 14;
15.1.5. has reasonable grounds to believe that the Customer has not or will not or is unable to make any payment which is due or is to fall due to PacketSky hereunder.
15.2. If PacketSky exercises its right to suspend the Services (or part thereof) pursuant to clauses 15.1.2 or 15.1.3 it shall, whenever reasonably practicable, give prior notice of such suspension to the Customer which notice will state the grounds of such suspension and its expected duration. PacketSky shall in such circumstances use all reasonable endeavours to resume the Services as soon as reasonably possible
15.3. If the Services(or part thereof) is suspended because of the breach, fault, act or omission of the Customer, the Customer shall pay to PacketSky all reasonable costs and expenses incurred by the implementation of such suspension and/or recommencement of the provision of the Services.
15.4. PacketSky shall not be liable for any loss, damage or inconvenience suffered by the Customer as a result of any suspension made pursuant to clause 15.1 except to the extent that such suspension is solely and directly attributable to the negligence of PacketSky.
15.5. The Customer shall pay to PacketSky a Reconnection Fee to re-activate the Services after any Services suspension in terms of these Terms and Conditions.
15.6. Service Fees will continue to accrue to the Customer during the period of the suspension of services
16. Resale of Service
16.1. Unless the Customer has entered into a reseller agreement with PacketSky, the resale of these services is not permitted.
17. Liability and Disclaimer
17.1. The Customer uses PacketSky’s services at its own risk.
17.2. The Customer acknowledges that PacketSky is unable to exercise editorial or other control over any Content placed on or accessible through the Customer’s use of the Services and PacketSky shall have no liability as to the quality or accuracy of any Content received through or as a result of the use of the Services.
18. Force Majeure
18.1. If either Party is rendered unable, in whole or in part, by an event of Force Majeure to perform or comply with any obligation or condition of these Terms and Conditions, such obligation or condition shall be suspended to the extent and for the duration of the continuance of the inability so caused and such Party shall be relieved of any liability during such period,provided that the event of Force Majeure will not operate to suspend the obligation of a Party to make payment if such payment becomes due and payable for services rendered in terms of these Terms and Conditions
18.2. The Party declaring the event Force Majeure shall give written notice to the other Party specifying the exact nature of the intervening circumstances and its estimated duration.
18.3. The Party declaring Force Majeure shall use all reasonable endeavours and employ all reasonable means to overcome or abate the event of Force Majeure as quickly as possible.
18.4. If an event of Force Majeure continues for a period of more than 30 (thirty) days, the Parties will consult with each other with a view to the future implementation of these Terms and Conditions. If no agreement is reached by the Parties in this regard within a period of 7 (seven)days thereafter, either Party may terminate these Terms and Conditions forthwith upon 7 (seven)days’ prior written notice to the other Party.
19. Intellectual Property, IP Addresses and Domain Names
19.1. The customer acknowledges:
19.1.1. that all patents,registered and unregistered designs, copyrights, trademarks and all other intellectual property rights whatsoever and wherever enforceable, which are used in connection with the Services and/or Services Equipment, shall remain the sole property of PacketSky, its contractors or suppliers; and
19.2. without limitation to the foregoing, that the Customer shall not be entitled to use the name, trademarks, trade names or other proprietary identifying marks or symbols of PacketSky without PacketSky’s prior written consent.
20.1. Each Party hereunder, shall:
20.1.1. only use Confidential Information for the purposes of this Quotation
20.1.2. only disclose Confidential Information to a third party with the prior written consent of the other Party (except that either Party may disclose Confidential Information on a need to know-basis, to its employees, agents or contractors, including professional advisors or auditors); and
20.2. ensure that any third party to whom Confidential Information is disclosed executes a confidentiality undertaking substantially similar to the terms of this clause 20. The provisions of clause 20 shall not apply to any Confidential Information which: (i) is in or comes into the public domain other than by breach of this clause 20; or (ii) is or has been independently generated by the receiving Party; or (iii) is properly disclosed pursuant to a separate written consent or a statutory obligation, the order of a court of competent jurisdiction or the requirement of a competent regulatory body.
21.1. No modification of this Sales Contract shall be valid unless in writing and agreed upon by both Parties
22.1. The Customer may not assign, charge, transfer or otherwise dispose of any of its rights or obligations herein in whole or in part, without the prior written consent of PacketSky. PacketSky may cede or assign any or all of its rights and obligations hereunder: (i) to any PacketSky affiliate; (ii) to a third party pursuant to any sale or transfer of substantially all the assets or business of PacketSky or a PacketSky affiliate; or (iii) to a third party pursuant to any financing, merger, or re-organisation of PacketSky or a PacketSky affiliate.
23. Good Faith, Ant-Bribery and Corruption
23.1. In the implementation of this Quotation, the Parties undertake to observe the utmost good faith in their dealings with each other, and they warrant that they will not do anything which might prejudice or detract from the rights, assets or interests of the other Party. No Party shall make any oral or written statement about the other Party which is intended or reasonably likely to disparage the other Party, or otherwise degrade the other Party’s reputation in the business, legal or ICT sector or the public in general, except for notifications required in terms of section 22 of POPIA or other statements of fact made during the course of business
23.2. For the purpose of clause 23 “Associated Person” means in relation to the Customer, a person who (by reference to all the relevant circumstances) performs services for or on behalf of the Customer in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and sub-contractor/s.
23.3. The Customer undertakes at all times to ensure that nothing which may be detrimental to the image,good name and reputation of PacketSky is done or published by the Customer or any of its employees, agents, subsidiaries, representatives or sub-contractors, and furthermore to take all reasonable steps to avoid any unfavourable publicity for PacketSky and shall procure that any Associated Person does the same
23.4. The Customer undertakes to comply with all applicable anti-bribery and corruption laws (collectively the “Anti-Bribery Laws”) and shall procure that any Associated Person does the same
23.5. The Customer warrants and undertakes that:
23.5.1. it has and will at all times implement adequate procedures designed to prevent it or any Associated Person from engaging in any activity which would constitute an offense under or violate the Anti-Bribery Laws;
23.5.2. no financial or other advantage has been, will be or is agreed to be given to any person (whether working for or engaged by PacketSky or any third party)by or on behalf of the Customer in connection with this Quotation, unless details of any such arrangement has been disclosed to and approved by PacketSky in writing;
23.5.3. it will not, and shall procure that any Associated Person does not, enter into a financial or other relationship with any employee of PacketSky which creates an actual or potential conflict of interest, unless previously approved by PacketSky; and
23.5.4. it will not, and shall procure that any Associated Person does not, make any type of political contribution or charitable donation on behalf of PacketSky whether directly or indirectly.
23.6. The Customer shall promptly report to PacketSky in writing upon becoming aware that it or any of its Associated Persons is in contravention of this clause 23.
24. Protection of Personal Information
24.1. In order to render the services or to comply with the obligations imposed on PacketSky in terms of this Quotation, PacketSky will need to provide, collect, use, store or process the personal information of the customer. The customer hereby authorises such collection, use, storage and processing where the need arises, subject to compliance with the further provisions of this clause 24.
24.2. PacketSky shall comply with its obligations under POPIA in respect of all personal information processed by it in connection with this Quotation and the services
24.3. PacketSky shall only provide,collect, use, store or process personal information:
24.3.1. As is necessary for the purposes of this Quotation and the services
24.3.2. For maintaining its internal administrative processes, including quality, risk and customer management processes which includes verifying your financial and other personal information and conducting all such investigations as may be required in law including but not limited to investigations to determine, verify or monitor your identity/ownership and control structure(as may be applicable), bank account details, risk profile and source of funds
24.3.3. For internal and external business-related purposes and statistical or research purposes
24.3.4. In accordance with the lawful and reasonable instructions of the customer providing the personal information
24.4. PacketSky shall:
24.4.1. Comply with the specific security and personal information protection obligations imposed on it in terms of POPIA
24.4.2. Where applicable, comply with the specific obligations imposed on it in terms of POPIA in respect of the specific role it fulfills in terms of providing the services as agreed between the parties; and/or
24.4.3. Take, implement and maintain all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of the personal information in its possession and to protect such personal information against unauthorised or unlawful disclosure, access or processing, accidental loss, destruction or damage
24.5. PacketSky may share the customer’s personal information with its contractors, employees,professional advisors or other third parties where necessary in order to protect the legitimate interests of any of the parties or in connection with this Quotation and the services
24.6. PacketSky may notify the customer about important developments, proposals and services which it thinks may be relevant to the customer,including advising the customer on current offerings, sending the customer newsletters and similar marketing material. The customer shall notify PacketSky if it does not wish to receive any electronic or other communications from PacketSky
24.7. Communications between PacketSky and the customer whether electronic, telephonic or otherwise, may be monitored by PacketSky to ensure compliance with its own professional standards and internal compliance policies and in terms of Rica should PacketSky have reasonable suspicion to believe that the customer is using the services for purposes contrary to the interests of PacketSky
24.8. PacketSky may for purposes of the collection, use, storage or processing thereof, need to transfer the customer’s personal information to:
24.8.1. Outsourced information technology service providers
24.8.2. Another country for legitimate purposes, including the use of cloud-based solutions
24.9. The customer consents to PacketSky using outsourced information technology service providers and cloud-based computer solutions to process the personal information of the customer and the customer further consents to the storage of the customer’s personal information outside of the borders of the republic of South Africa, to the extent required and as may be applicable.
24.10. PacketSky will in relation to clause 24.8.2, require that any third party, outsourced service provider or foreign legal entity involved in the collection, use, storage or processing, undertakes to ensure that such personal information is protected with the similar level of protection as is required in terms of clause24.4.
24.11. The customer confirms that it has, where relevant, procured the consent of its holding company and its subsidiary/ies whose personal information is provided to PacketSky for the processing of such information by PacketSky for the aforementioned and related purposes.The customer indemnifies PacketSky against any loss, liability, damage or expense (including interest and penalties) suffered or incurred by PacketSky due to the customer’s failure to obtain the necessary consent
24.12. The customer undertakes to notify PacketSky of any changes or errors to the personal information which the customer provided to PacketSky. PacketSky will update the customer’s personal information within a reasonable period of being notified of any changes or errors.
24.13. Should the customer believe that PacketSky has utilised its personal information contrary to the directives of POPIA, the customer undertakes to first attempt to resolve any concerns with PacketSky by addressing a complaint in writing to the PacketSky information officer’s email address at firstname.lastname@example.org or by calling 011-704-0800. If the customer is not satisfied with the outcome of such process,the customer has the right to lodge a complaint with the information regulator as established in terms of the POPIA
25. Dispute Resolution
25.1. If the Customer wishes to dispute any invoice or part of an invoice falling due in accordance with clause 7, the Customer shall, before the invoice is due for payment, deliver a notice in writing to PacketSky setting out the nature of its dispute,including: (i) date and number of disputed invoice; (ii) amount in dispute; (iii) reason for dispute;and (iv) supporting documentation, as appropriate. Any undisputed part of a disputed invoice shall be paid by the Customer in accordance with clause 7. The Parties shall use all reasonable endeavours to resolve such payment disputes as soon as is reasonably practicable.
25.2. In the event of there being any dispute or difference between the Parties arising out of this Quotation the Customer hereby consents, in terms of section 45 of the Magistrates Court Act 32 of 1944, to the jurisdiction of the Magistrate Court in respect of any action to be instituted against the Customer in terms of this Quotation. It shall nevertheless be entirely within the discretion of PacketSky as to whether to proceed against the Customer in such Magistrate Court or in any other court having jurisdiction.
26.1. These Terms and Conditions set out the entire understanding between PacketSky and the Customer, superseding all prior or contemporaneous representations, agreements or understandings concerning the subject matter addressed herein
26.2. These Terms and Conditions shall be governed and construed in accordance with South African law.
26.3. Severability. If any provision of these Terms and Conditions is rendered void, illegal or unenforceable in any respect under any law, such provision shall be severed from these Terms and Conditions and the remaining provisions of these Terms and Conditions shall nevertheless remain valid and enforceable.
26.4. No Waiver. Failure or delay by either Party to exercise or enforce any right or benefit conferred by these Terms and Conditions , including PacketSky’s right to deliver invoices in accordance with clause 13, shall not be deemed to be a waiver of any such right or benefit or operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.
26.5. Relationship. Nothing in these Terms and Conditions and no action taken by the Parties pursuant to these Terms and Conditions shall constitute or be deemed to constitute a partnership, agency, association, joint venture or other co-operative entity between the Parties.
26.6. Third Party Beneficiaries. Except as otherwise contemplated by these Terms and Conditions, nothing contained herein will create or confer any rights or other benefits in favour of any person other than the Parties.
26.7. Variation. PacketSky reserves the right to amend and change these Terms and Conditions from time to time (or any part thereof) and shall notify the Customer that the Terms and Conditions have been revised and that such revised Terms and Conditions are available on its website for access by the Customer. For purposes of clarity,it is hereby recorded that the Customer’s consent will not be required for any amendments to the PacketSky Terms and Conditions.
26.8. Costs. Any costs, including all legal costs on an attorney and own client basis, incurred by PacketSky arising out of or in connection with a breach by the Customer shall be borne by the Customer and in the event that PacketSky employs the services of counsel in any action,application or proceedings, which decision will be within the sole discretion of PacketSky, the Customer hereby agrees to pay counsel’s fees in any action or application brought by PacketSky against it, on the Bar Council Tariff as determined by the relevant bar council and such costs are to include counsel’s preparation costs, costs of preparing pleadings and legal hearing attendance.
26.9. The customer shall refrain from attacking PacketSky or its contractors or Network Operator on any social media platforms for delays in installation and/or interruptions of the services and/or repairs, without first following the escalation routes and remedies stated above. Failure to comply with this clause shall entitle PacketSky to cancel this Quotation without any further notice to the customer. PacketSky furthermore reserves the right to take legal action for slander/defamation against the customer for any untrue statements made on social media in addition to cancelling the Quotation as aforementioned.
27.1. The Parties select as their respective domiciliacitandi et executandi for the purpose of giving or sending any notice provided for or required under this Quotation, the following addresses:
Design Quarter, Leslie Road
Johannesburg, Gauteng, 2191
For legal notices – Email: email@example.com
For cancellations – Email: firstname.lastname@example.org
For personal information matters – Email: email@example.com
As per the Quotation
27.2. A Party may change its domicilium address to another physical address in the Republic of South Africa or change its e-mail address for the purposes of notice to another valid e-mail address, by written notice to the other Party. Such change of address will be effective5 (five) Business Days after receipt of such notice.
27.3. Any notice to a Party which is:
27.3.1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
27.3.2. sent by email to its chosen e-mail address stipulated on the cover page, shall be deemed received on the next Business Day immediately following the date of delivery.
27.4. A written notice or communication actually received by a Party shall be an adequate written notice or communication to it for all purposes,notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
28. ISPA Takedown Notice
28.1. In terms of section 75 of the Electronic Communications and Transactions Act (“the Act”) PacketSky has designated the Internet Service Providers’ Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the Act.
Internet Service Providers’ Association (ISPA)
Address: PO Box 518, Noordwyk, 1687
Telephone: 010 500 1200