Wanatel Terms and Conditions of Use
Please read the following very carefully before using the wanatel service as it sets out your legal rights and obligations in respect of the service.
1.1.1. Wanatel provides “voice over IP” communications services.
1.1.2. The Customer wishes to make use of the communications services and optionally procure the necessary hardware and software necessary to do so.
1.1.3. Accordingly the parties agree to the terms set out in this Agreement.
1.2. Interpretation. The manner of interpretation of this Agreement and the definitions of terms in it are set out below in clause 31 (Interpretation) and clause 32 (Glossary).
2. THE PARTIES
2.1. “Wanatel” means Platoon Trade and Invest 149 (Pty) Ltd, a private company registered in accordance with the laws of South Africa with registration number 2007/017022/07 with the following contact addresses:
Physical Address: 5th Floor, 125 Buitengracht Street, Cape Town, 8001
Fax number: +27 (0)86 6840 998
Email address: firstname.lastname@example.org
2.2. The “Customer” means the party that indicated its agreement to these terms, as recorded via the Wanatel Website.
3. APPOINTMENT & TERM
3.1. Appointment. The Customer hereby appoints Wanatel to supply the Licensed Technology and provide the Services to the Customer on the terms and conditions of the Agreement, and Wanatel accepts the appointment.
3.2. Term & Termination. This Agreement will commence on the date on which the Customer accepts the terms of this Agreement, or on the date on which the Customer first makes use of the Services, whichever is the earlier. It will continue in force until terminated in terms of clause 24 (Breach and Termination).
3.3. Precedence. If any conflict exists between the terms of this document and any schedule or annexure to it, then the provisions of this document will take precedence over the latter unless the contrary is expressly stated in writing.
4. PRELIMINARY MATTERS
4.1. Credit Check. The Customer consents to Wanatel carrying out a credit check in respect of the Customer at any applicable credit bureau, and may make the provision of the Services dependant on its satisfaction with the results thereof.
4.2. RICA. The Customer notes in particular that it will be required to provide certain information to Wanatel as contemplated in Chapter 7 of RICA, and that Wanatel may withhold or suspend provision of the Licensed Technology or Services to the Customer until such time as the Customer has provided such information to Wanatel’s satisfaction.
4.3. Suspensive Condition. If Wanatel elects to exercise any of its rights set out in this clause 4, this will act as a suspensive condition to the Agreement, and Wanatel may consequently suspend providing the Licensed Technology or Services until it is satisfied with the results thereof. Should it not be satisfied, Wanatel may terminate the Agreement in respect of the Licensed Technology or Services and will not be liable for any damage that the Customer may suffer as a consequence.
5. AMENDMENT OF TERMS
5.1. Amendment. Wanatel may amend the terms of this Agreement at any time, and will notify the Customer by posting the amended Agreement on the Wanatel Website. The Customer has a duty to keep itself informed of the latest version of the Agreement by accessing the Wanatel Website on a regular basis. Wanatel will also make reasonable efforts to notify the Customer of such amendments by email.
5.2. Notice of Amendments. Wanatel must give at least one calendar months’ notice for the amendments (calculated from the date on which the amendment is posted on the Wanatel Website), which will become effective at the beginning of the first calendar month after the notice period has expired.
5.3. Rejection of Amendments. If the Customer objects to any amendment, it may terminate the Agreement as set out in clause 24 (Breach and Termination).
6. COMMUNICATION SERVICES
6.1. Scope of Service. In return for payment of the relevant Fees and subject to the terms of this Agreement, Wanatel will make available the Wanatel System and Licensed Technology in order to transmit and receive Communications data for Authorised Users. The Communication Services are further described in the Manuals.
6.2. Connectivity: Wanatel will provide required connectivity to the Wanatel System from its core network and connectivity to its voice interconnection points as required.
6.3. Authorisation. The Customer will permit only Authorised Users using SIP accounts provided by Wanatel to receive and submit Communications Data via the Wanatel System. Access to the Communications Services will be by way of suitable access controls, including by not permitting any Communications Data to be received or submitted other than by way of such SIP accounts.
7. CONSULTING SERVICES
7.1. The Customer may request Wanatel to provide Consulting Services to the Customer during the term of this Agreement, either on an ad-hoc basis or in terms of a Service Order. Unless otherwise agreed between the Parties in writing, Wanatel will charge the Customer the Consulting Services Fee for providing these Services.
8. FEES AND PAYMENT
8.1.1. The Customer must pay all amounts due to Wanatel in South African Rands without deduction or set-off for any reason.
8.1.2. No obligation to make payment will be cancelled and no refunds will be given under this Agreement unless agreed between the Parties in writing.
8.1.3. Payment must be made by direct deposit into a bank account designated by Wanatel. Wanatel may designate a new bank account or another method of payment by written notice to the Customer.
8.1.4. The Parties will agree whether the Customer is to pay the Communications Service Fees in arrears or on a prepaid basis.
8.2. Fees. The Customer will pay Fees to Wanatel for provision of the Services and Licensed Technology as follows, unless otherwise agreed between the Parties in writing:
8.2.1. If the Customer is to pay the Communication Services Fees on a prepaid basis, payment will be made as set out in clause 8.3.
8.2.2. If the Customer is to pay the Communication Services Fees in arrears, these will be invoiced monthly in arrears and must be paid within 30 (thirty) calendar days of the date of the invoice.
8.2.3. Consulting Services Fees will be invoiced monthly in arrears and must be paid within 30 (thirty) calendar days of the date of the invoice.
8.3. Prepaid Account. If the Customer is to pay the Communication Services Fees on a prepaid basis the following will apply:
8.3.1. Payment for the Communication Services must be made to Wanatel in advance, and credited to the Customer’s Prepaid Account.
8.3.2. Communications Service Fees will be deducted from the Prepaid Account with Wanatel on a declining-balance basis.
8.3.3. If the balance in the Prepaid Account reaches zero, the Communication Services will be suspended until the Customer has credited the Prepaid Account appropriately.
8.3.4. Credit in the Customer’s account will be valid for a period of 6 (six) months from the date of payment, after which the credit will lapse. If any chargeable call or further payment is made, this period will commence afresh from the date of such call or payment.
8.3.5. Wanatel may from time to time by publication on the Wanatel Website set a minimum balance for the Prepaid Account (failing which the minimum balance will be zero), and / or a maximum amount by which the Prepaid account may be in credit.
8.4. Pricing. The Communications Services Fees are displayed on the Wanatel Website.
8.5. Escalation. Wanatel may increase the Fees as follows:
8.5.1. Wanatel may change the Communication Services Fees at any time and without notice to the Customer. It is the Customer’s duty to check the current Communications Services Fees by referring to the Wanatel Website.
8.5.2. Wanatel may increase other Fees once in every 12 month period. Such increase will be in accordance with any increases which have been imposed upon it by its suppliers and/or with benchmarks in the IT industry which will include, but not be limited to, changes in exchange rates, and increases in labour costs (having regard to, inter alia, premium salaries being paid to specialist personnel, the accelerated demand by computer users for new computer systems, bonuses, “high average” salaries and “skills scarcity” premiums).
8.6. Interest on Outstanding Amounts. Any amount which remains unpaid beyond the date upon which it becomes owing will attract interest at a rate of 2% (two percent) above the prime overdraft rate (percent, per annum) charged by Wanatel’s then current bankers from time to time, as evidenced by any manager of such bank, whose authority it will not be necessary to prove, up to a maximum of 24% per annum. Such interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, compounded monthly in arrears and the Customer agrees and undertakes to pay such interest.
8.7. Expenses. The Customer will reimburse all reasonable expenses that are necessarily and actually incurred by Wanatel and Wanatel’s Personnel in fulfilling Wanatel’s obligations pursuant to this Agreement. Such expenses include, but are not limited to, travelling, subsistence, goods and services purchased on the Customer’s behalf, communications, stationery, report and presentation material.
8.8. Taxes. It is recorded that all amounts to be paid by the Customer to Wanatel in terms of this Agreement are exclusive of any VAT, export duties and any other taxes, duties, fees, costs, and charges raised on the provision of the Services or sale of the Equipment, or which may be attributable thereto, which will be paid by the Customer in addition to the amounts set out in this Agreement.
8.9. Allocation. Wanatel may allocate amounts received from the Customer in terms hereof as follows: firstly towards interest and reimbursement of expenses, and secondly towards Fees payable for Services rendered.
9. CUSTOMER SYSTEM
9.1. Required System. The Customer must, at its own expense, procure, install at the relevant Customer Sites and maintain all components of the Customer Systems specified by Wanatel to be required to receive the Communication Services.
9.2. Site Readiness. The Customer must ensure that a Customer System compliant with Wanatel’s minimum specifications is installed and fully operational at each Customer Site prior to the planned date for commencement of the implementation of the Communication Services.
10.1. Testing. The Customer must test the Communication Services to ensure that they meet the requirements set out in clause 6 and the Manuals.
10.1.1. If Errors are found in the Communications Services, the Customer must notify Wanatel’s Service Desk of any Errors that it detects during such testing and Wanatel will provide support in respect of such Errors.
10.1.2. The Customer must immediately notify Wanatel of successful completion of testing.
10.1.3. If the Customer does not notify Wanatel of an Error or successful testing as set out in clauses 10.1.1 and 10.1.2 respectively within 5 (five) Business Days of completion of the installation by Wanatel, then the Service will be deemed to comply with the requirements set out in clause 6 and the Manuals.
11. RISK AND OWNERSHIP IN EQUIPMENT
11.1. Ownership. Ownership of all Equipment is retained by Wanatel (or the supplier of the Equipment as the case may be) until payment has been made for it in full and nothing in this Agreement must be interpreted as creating any expectation with regard to the transfer of ownership to the Customer.
11.2. Purchase of Equipment. Unless the Parties agree in writing that the Customer will rent some or all of the Equipment from Wanatel, the Customer purchases the Equipment supplied to it by Wanatel.
11.3. Delivery. Delivery of Equipment will take place when Wanatel passes possession of the Equipment to the Customer, its Freight Forwarder, or a third party nominated by the Customer, or when Wanatel delivers it to any location indicated in writing by the Customer where the Equipment is not under the control of Wanatel.
11.4. Risk. Risk in the Equipment will pass to the Customer on delivery, from which moment all risk of damage and loss in the Equipment will fall on the Customer, which must take relevant steps to insure the Equipment and otherwise mitigate its risk of loss therein.
11.5. Delivery to 3rd Parties. If the Customer requires that Equipment be delivered directly to a Client or third party as the case may be, the Customer must procure the services of an appropriate Freight Forwarder for the purpose, and risk of loss or damage to the Equipment will pass to the Customer upon Wanatel’s Delivery of such Equipment to the nominated Freight Forwarder.
12.1. Licence Terms. Wanatel grants to the Customer for the duration of this Agreement a non-exclusive, non-transferable licence to use the Licensed Technology as provided by Wanatel solely to enable Authorised Users in the Territory to access the Communication Services.
12.2. Third Party Software. The Customer acknowledges that its right to use the Third Party Software is subject to the license terms of such Third Party Software.
12.3. Restrictions. The Customer may not itself, and must not permit any third party, whether directly or indirectly, except as expressly permitted in terms of this Agreement to:
12.3.1. modify, adapt, translate, reproduce, distribute, use, rent, lease, share, sell, assign, sub-license or otherwise transfer any part of the Licensed Technology;
12.3.2. remove, alter or conceal any proprietary notices or labels on the Licensed Technology; or
12.3.3. reverse assemble, decompile or reverse engineer any Wanatel Software, whether in whole or in part, or otherwise attempt to derive the source code of any Wanatel Software.
12.4. Retention of Rights. Any rights to Intellectual Property granted to the Customer are limited to the rights set out in this clause 12. Beyond such rights, nothing in this Agreement will be interpreted as granting the Customer a license to deal in any way with the Licensed Technology or any Intellectual Property owned by Wanatel, nor will anything be construed as an assignment of such rights. Wanatel (or its Suppliers as the case may be) will remain solely entitled to all ownership rights in the Licensed Technology, including all Intellectual Property therein and all Know-How represented by or incorporated in the Licensed Technology.
12.5. Use of Wanatel Know-How. To the extent that Wanatel utilises any of its Know-How in connection with its obligations in terms of this Agreement, same will remain the property of Wanatel and the Customer will acquire no right in such Know-How.
13. USE OF SERVICES
13.1. Customer Responsibility. The Customer accepts that it is responsible for all of the consequences of its own activities and those of Authorised Users or of any other party using the Communications Services.
13.2. Acceptable Use. Wanatel may impose rules for the use of the Communications Services which are contained in the Acceptable Use Policy (“AUP”). The Customer must abide by the Acceptable Use Policy and ensure that Authorised Users do so. Further, due to the fluid nature of security threats and evolving technology, Wanatel will amend the Acceptable Use Policy from time to time. The Acceptable Use Policy as amended is available for viewing on the Wanatel Website.
13.3. Status of AUP. For the avoidance of doubt, the Acceptable Use Policy contains reasonable rules for conduct, which are not themselves material terms of this Agreement; the Customer’s duty under this Agreement is to abide by such reasonable rules as Wanatel may include in the Acceptable Use Policy from time to time. An amendment to the Acceptable Use Policy is hence not an amendment to this Agreement so long as it does not effect a material term.
13.4. Telephone Numbers. During provision of the Services, Wanatel will allocate one or more telephone numbers to the Customer.
13.4.1. The Customer acknowledges that telephone numbers are not property and are not capable of being the subject of ownership. As a result the Customer does not acquire any right or expectation of a right to telephone numbers allocated to it.
13.4.2. Wanatel may change telephone numbers allocated to the Customer for reasonable commercial reasons or in order to comply with regulation, but will give the Customer reasonable notice before doing so.
13.4.3. On termination of this Agreement, any telephone numbers assigned to the Customer may be removed from the Customer, and the Customer will have no recourse against Wanatel as a result of any loss sustained as a result.
14. CUSTOMER COOPERATION
In order to allow Wanatel to provide the Services, the Customer agrees to provide such assistance, support and co-operation as is reasonably required by Wanatel. The Customer will, without limitation:
14.1. Access to premises. allow Wanatel and its Personnel reasonable access to its premises in order for Wanatel to provide the Services;
14.2. Co-operation. procure that its employees, officers and agents co-operate with and give Wanatel any necessary assistance in the provision of the Services, and procure that sufficiently qualified and authorised Personnel are made available for this purpose;
14.3. Instructions and Policies. comply with any reasonable instructions given by Wanatel relating to the provision of the Services;
14.4. Requests for information. respond to any request for information, access or authorisation as soon as reasonably possible, having regard to the circumstances of the request.
14.5. Consents and decisions. timeously provide necessary consents or approvals and take such decisions as are necessary in order for Wanatel to provide the Services without impediment or delay;
14.6. Access to systems. provide Wanatel with reasonable access to the Customer’s computer systems to enable Wanatel to meet its obligations in terms of this Agreement, including access to the Customer’s network, whether directly or remotely;
14.7. Procurement of infrastructure. procure that the infrastructure necessary for the provision of the Services is provided at each Customer Site, including without limitation electricity supply, telephone services and connectivity services; and
14.8. Regular feedback. provide regular feedback to Wanatel to ensure that Wanatel is in a position to provide the Services, and notify Wanatel as soon as reasonably possible of any issues, concerns or disputes with respect to the Services.
15. PERSONAL INFORMATION
15.1. Processing of Personal Information.
15.1.1. Wanatel and the Customer are each responsible for complying with their respective obligations under applicable laws governing the processing of Personal Information.
15.1.2. The Customer remains solely responsible for obtaining Authorised Users’ consent for Wanatel to process Personal Information for purposes consistent with providing the Services, in accordance with applicable law.
15.2. Trans-border Personal Information flows.
15.2.1. The Customer warrants that it has obtained the Authorised Users’ consent to Wanatel transferring Personal Information across country borders for purposes consistent with providing the Services.
15.2.2. The Customer is solely responsible for determining that any transfer of Personal Information across a country border complies with the applicable laws.
16.1. Security Measures by Wanatel. Wanatel will implement measures in line with Good Industry Practice to ensure the security of the Wanatel System, but gives no warranty that breaches of security will not take place.
16.2. Security Measures by Customer. The Customer must implement reasonable security measures to ensure that no unauthorised access is gained to the Wanatel System or the Customer System, including without limitation:
16.2.1. not allow anyone other than Authorised Users to access or use the Licensed Technology or Communication Services;
16.2.2. maintain appropriate security infrastructure such as firewalls and the like;
16.2.3. implement generally accepted information security practices and procedures; and
16.2.4. follow any reasonable direction or security practice published by Wanatel.
16.3. Steps to be Taken on Security Violation. In the event of a security violation of the Wanatel System or the Customer System, or in the event that Wanatel at its sole discretion determines that a security violation is imminent, Wanatel may take whatever steps it deems necessary to prevent loss or maintain the proper functioning of the Wanatel System including without limitation:
16.3.1. changing the Customer’s access codes and passwords or those of any Authorised User,
16.3.2. preventing access to the Customer System, and
16.3.3. preventing access to the Wanatel System.
16.4. Notification of Breaches. If the Customer becomes aware of any unauthorised access to the Wanatel System, Customer System or Communication Services, or believes that one is imminent, the Customer must promptly report the incident to Wanatel describing in detail the scope and nature of the incident.
16.5. Binding on Customer’s Clients. In the event of the Customer providing any service to its Clients which makes use of the Wanatel System, the Customer must contractually bind its Clients to the same terms with respect to security as set out in this clause 16, with the appropriate changes having been made.
17. SUSPENSION OF SERVICE
17.1. Grounds for Suspension. Wanatel is entitled to suspend provision of the Communications Service to the Customer where:
17.1.1. the Customer’s pre-paid account balance falls below the minimum balance described in clause 8.3.5;
17.1.2. a court of competent jurisdiction so orders;
17.1.3. Wanatel needs to carry out Emergency Maintenance;
17.1.4. the Customer has not made payment of monies owing to Wanatel by due date, and has not rectified such breach within 7 (seven) days of written demand;
17.1.5. Wanatel becomes aware of a potential threat to the proper operation or security of the Service as described in clause 16 (Security); or
17.1.6. Wanatel has reasonable grounds to believe that the Services are being used fraudulently, or illegally, or in violation of the terms of this Agreement.
17.2. Wanatel Notice of Suspension. Wanatel is entitled to suspend Service as set out in clause 17.1 immediately and without notice. In the case of grounds set out in clauses 17.1.4 to 17.1.6 Wanatel must provide the Customer with at least 30 (thirty) days’ notice of such suspension, unless the circumstances are such that immediate suspension is necessary to avoid loss to Wanatel, the Customer or any third party.
17.3. Period of Suspension. The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
18. STATUTORY COMPLIANCE
18.1. The Customer must obtain such consents as may be required in law to enable it to comply with the terms of this Agreement and to enable Authorised Users to access and make use the Communication Services.
18.2. Wanatel is obliged to comply with certain statutory provisions including, but not limited to, those set out in the following Acts (and any regulations promulgated in terms thereof):
18.2.1. the Film and Publications Act 65 of 1996;
18.2.2. the Electronic Communications and Transactions Act 25 of 2002
18.2.3. the Regulation of Interception of Communications and Provision of Communication-related Information Act (Act 70 of 2003), and
18.2.4. the Electronic Communications Act 36 of 2005.
18.3. Wanatel’s compliance with these statutory provisions may include measures that would otherwise constitute infringements of the Customer’s privacy, such as interception of the Customer’s communications. The Customer agrees that no action will lie against Wanatel for any damages howsoever arising as a result of such measures.
19.1. Independent Contractor. The Parties agree that the relationship between them is one of commissioner and independent contractor, and nothing in this Agreement will be construed as giving rise to a relationship of employer and employee, whether between the Customer and Wanatel or between the Customer and any officer, employee or agent of Wanatel.
19.2. No employment. Neither Wanatel nor its employees, officers or agents is “an employee” of the Customer as defined in the Labour Relations Act 66 of 1995, s1 of the Basic Conditions of Employment Act 75 of 1997 or any similar statute. Nothing in this Agreement will be construed as constituting a temporary employment service as contemplated in section 198 of the Labour Relations Act, 1995.
19.3. No Agency, Partnership or Joint Venture. This Agreement does not give rise to a relationship of principal and agent, a partnership or a joint venture between the Parties. Neither Party will be entitled to conclude any agreement on behalf of the other, nor to sign any document on behalf of the other, unless so specifically authorised in writing by the other.
19.4. No exclusivity. The relationship between the Parties will not be an exclusive one and both parties will be free to enter into agreements similar to this one or any Service Order with third parties.
19.5. Good Faith. Both Parties to this Agreement (including the employees, officers and agents of the Parties) undertake to use their best endeavours and exercise good faith in implementing the provisions of this Agreement according to its intent and purpose and they further undertake to pass such resolutions and do all such acts and deeds as may be necessary, to this end.
20. NO WARRANTIES
20.1. Disclaimer of warranties. Save as expressly set out in this clause and elsewhere in this Agreement and to the maximum extent permitted by law, Wanatel does not make any representations nor does it give any warranties or guarantees of any nature whatsoever in respect of the Licensed Technology or Services, which are provided on a “reasonable effort” basis, and all warranties which are implied or residual at common law are hereby expressly excluded. Without limiting the aforegoing:
20.1.1. Wanatel disclaims that the Communication Services and Licensed Technology are free of Errors and any other defects; and
20.1.2. Wanatel disclaims any warranty that the Communication Services or Licensed Technology will meet with the Customer’s requirements or that it will be of satisfactory quality or fit for a particular purpose.
20.2. CPA. If the CPA is applicable to this Agreement, the provisions of this Agreement or of this clause 20 will not be interpreted so as to exclude the Customer’s rights under sections 54, 55, and 56 of the CPA, which are admitted only to the minimum possible extent. Unless the contrary is stated elsewhere in this Agreement, the Customer will have no rights in respect of quality of service, safe & good quality goods or implied warranty of quality beyond those explicitly stated in the aforementioned sections.
21. CONFIDENTIAL INFORMATION
21.1. Acknowledgment of Confidentiality. Each Party acknowledges that all material and information which has or will come into its possession or knowledge in connection with this Agreement, or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging to the other of them.
21.2. Duty of Confidentiality. Both Parties, therefore, agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to Personnel reasonably requiring such information, and not to release or disclose it to any other party, unless required by law or with the written permission of the other Party.
21.3. Exclusion. Confidential and proprietary information is not meant to include any information which, at the time of disclosure, is generally known by the public and / or any competitors of either Party.
21.4. Survival. The Parties’ obligations of confidentiality under this agreement will survive the termination of this Agreement for any reason whatsoever.
22. LIMITATION OF LIABILITY
22.1. Loss. For the purposes of this clause “Loss” means and includes:
22.1.1. all losses, liabilities, and damages relating to or arising from this Agreement or the Services, howsoever arising, whether out of breach of express or implied warranty, breach of contract, misrepresentation, negligence, vicarious or strict liability, in delict or otherwise, and whether foreseen by either of the Parties or not; and
22.1.2. any legal costs (including legal fees at an attorney and own client scale and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) or other costs, claims or demands.
22.2. Liability Limited. Wanatel will not be liable to the Customer or any third party for any Loss whether direct or indirect (including consequential, punitive, special or incidental loss or damage which will include but not be limited to loss of property or loss of profit, business, goodwill, revenue or anticipated savings).
22.3. Specific Exclusions. Without limiting the provisions of clause 22.2 in any way, Wanatel will not be liable to the Customer for Loss arising from:
22.3.1. any breach of this Agreement by the Customer or any act, misrepresentation, error or omission made by or on behalf of the Customer or the Customer’s Personnel;
22.3.2. the Customer’s failure to put in place adequate security measures as set out in clause 16 (Security);
22.3.3. the interruption, suspension or termination of the Communications Services for whatever reason; or
22.3.4. Loss arising as a result of lost data, damaged or corrupted data or a delay in transmissions.
22.4. Quantum of Damages Limited. Without in any way limiting or derogating from the above provisions, the Parties agree that the total amount of Wanatel’s liability to the Customer for Loss will not exceed the amount of the Fees paid by the Customer for the Service from which the damage arose in the 12 (twelve) month period immediately preceding the damage-causing event.
22.5. Indemnity. The Customer will indemnify, defend, and hold Wanatel harmless from any and all Loss claimed by any Authorised User, Client or third party against Wanatel relating to or arising from the Agreement or provision of the Services, including without limitation:
22.5.1. breach by the Customer of privacy rights, including the infringement of any law (whether South African or foreign) governing protection of personal information or cross-border data flows;
22.5.2. the infringement by the Customer of any Intellectual Property Right; or
22.5.3. any unlawful act or breach of this Agreement by the Customer.
22.6. Procedure on Indemnity. If any third party claim contemplated in clause 22.5 is made against Wanatel (“the Innocent Party”), the Innocent Party must promptly notify the other Party in writing of any claims covered by this indemnity. Promptly after receipt of such notice, the other Party will assume the defence of the claim with counsel reasonably satisfactory to the Innocent Party. If the other Party fails, within a reasonable time after receipt of such notice, to assume the defence with counsel reasonably satisfactory to the Innocent Party or, if in the reasonable judgment of the Innocent Party, a direct or indirect conflict of interest exists between the Parties with respect to the claim, the Innocent Party will have the right to undertake the defence, compromise and settlement of such claim for the account and at the expense of the other Party. Notwithstanding the foregoing, if the Innocent Party in its sole judgment so elects, the Innocent Party may also participate in the defence of such action by employing counsel at its expense, without waiving the other Party’s obligation to indemnify and defend. The other Party will not compromise any claim (or portions thereof) or consent to the entry of any judgment without an unconditional release of all liability of the Innocent Party as to each claimant or plaintiff.
22.7. Benefit of Limitations. These limitations on liability and indemnities apply to the benefit of Wanatel and Wanatel’s Affiliates, directors, officers, employees, contractors, agents and other representatives, as well as any third parties whose networks are connected to the Wanatel System.
22.8. Precedence. In the case of ambiguity, this clause 22 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
23. DISPUTE RESOLUTION
23.1. Informal Resolution. If any dispute arises between the Parties relating to or arising from this Agreement:
23.1.1. The authorised representatives, as appointed by each Party, will meet as soon as reasonably practicable (but no less than 5 (five) days after such meeting is requested in writing by either Party) to try to resolve the dispute and must, if required by either Party, continue to negotiate for at least 5 (five) consecutive days (or such other period as may be agreed by the Parties in writing);
23.1.2. If the dispute is not resolved at the meeting pursuant to clause 23.1.1, the dispute must be referred to an urgent meeting of the Chief Executive Officers of the Parties or such representatives as may be appointed by their Chief Executive Officers. This meeting is to take place within 5 (five) days of the matter being referred to them or such other period as may be agreed by the Parties in writing;
23.1.3. If the dispute has not been resolved within 5 (five) days of the meeting contemplated in clause 23.1.2 (or such other period as may be agreed by the Parties in writing), either Party may refer the dispute to arbitration in accordance with the terms of clause 23.2.
23.2. Arbitration. If a dispute referred to in clause 23.1 is not resolved in accordance with that clause 23.1 then, unless otherwise provided in this Agreement, the dispute must be finally resolved on the terms as provided for below:
23.2.1. In the event of any such dispute or difference arising between the Parties to the Agreement the said dispute or difference must on written demand by any Party to the dispute be submitted to arbitration in Johannesburg in the English language in accordance with the rules of AFSA.
23.2.2. The arbitrator will be, if the matter in dispute is principally:
184.108.40.206.a technical matter, an independent technical expert of not less than 10 years’ experience in the relevant technical area;
220.127.116.11. an accounting matter, an impartial chartered accountant of not less than 10 (ten) years standing;
18.104.22.168. a legal matter, an impartial practising advocate of not less than 10 (ten) years standing;
23.2.3. If the parties fail to agree whether the matter in dispute is of a legal, accounting or technical nature within 7 (seven) days after the arbitration has been demanded, it will be considered to be a legal matter referred to in clause 22.214.171.124 above.
23.2.4. Subject to either Party’s right to appeal in terms of clause 23.2.6, each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:
126.96.36.199. will be final and binding on each of them; and
188.8.131.52. will be carried into effect; and
184.108.40.206. can be made an order of any competent Court to whose jurisdiction the parties are subject.
23.2.5. It is the intention of the Parties that the arbitration will, where possible, be held and concluded in 21 (twenty-one) days after it has been demanded.
23.2.6. The Parties irrevocably agree that the submission of any dispute to arbitration in terms of this clause 23.2 is subject to the Parties’ rights of appeal. Either Party may appeal the arbitration ruling by giving written notice to that effect to the other Party to the arbitration within 20 (twenty) calendar days of the ruling being handed down. The appeal will be dealt with in accordance with the rules of AFSA by a panel of 3 (three) arbitrators appointed for this purpose by agreement between the Parties and, failing such agreement within 15 days of the appeal being notified by either Party, by AFSA.
23.2.7. Any arbitration in terms of this clause 23.2 will be conducted in camera and the Parties must treat as confidential and not disclose to any third party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of the other Party.
23.2.8. This clause 23.2 will constitute each Party’s irrevocable consent to the arbitration proceedings described herein, and no Party will be entitled to withdraw from such proceedings or to claim at such proceedings that it is not bound by this clause.
23.3. Urgent Relief. Nothing herein contained will be deemed to prevent or prohibit a Party from applying to any appropriate Court for an interdict, urgent relief, enforcement of Intellectual Property rights or for judgment in relation to a liquidated claim.
23.4. Severability. The provisions of this clause 23 are severable from the remainder of this Agreement and will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement or any part thereof.
24. BREACH AND TERMINATION
24.1. Termination for Cause. If either Party:
24.1.1. fails to comply with any of its obligations or commits a breach of this Agreement and fails to remedy the default or breach within 5 (five) Business Days after having received a written notice to do so;
24.1.2. resolves to begin business rescue proceedings as contemplated in chapter 6 of the Companies’ Act 71 of 2008;
24.1.3. is placed in provisional or final liquidation or sequestration, or judicial management;
24.1.4. enters into any compromise arrangements with its creditors;
24.1.5. fails to satisfy any judgment to the value of more than R100 000.00 (one hundred thousand Rand) taken against it within ninety (90) days;
24.1.6. falls under the controlling interest or ownership of a competitor of the other Party (for the purpose of this clause, the Party who makes this allegation will carry the burden to prove it);
the other Party will be entitled either:
24.1.7. to hold the Party in breach to the Agreement; or
24.1.8. to cancel the Agreement.
24.2.1 Termination for Convenience. Either Party may terminate the Agreement by giving no less than 30 (thirty) days’ prior written notice to the other party 24.2.2 should the both parties agree to a longer terms contract (> 6 months) both parties may only terminate the agreement 30 days after the initial agreed period
24.3. No Prejudice to Right to Compensation. The provisions of this clause 24 will not affect the rights of the Parties to seek legal redress including a claim of damages in respect of a breach of any of the provisions of this Agreement.
25. EFFECT OF TERMINATION
25.1. Amounts due to Wanatel. On termination of this Agreement for any reason, all amounts applicable to Services rendered or Equipment supplied prior to termination will become due and payable immediately, as will the full balance of the capital, interest, and costs of amounts payable in instalments.
25.2. Duties upon termination. Upon termination of this Agreement for any reason:
25.2.1. the Customer must cease using all the Licensed Technology and promptly return to Wanatel any and all tangible elements of such Licensed Technology, save for the Equipment purchased and fully paid by Customer;
25.2.2. the provision of all Services will be terminated including by rendering the relevant Licensed Technology inoperable; and
25.2.3. each Party must deliver to the other Party, or at the other Party’s option destroy, and procure the delivery of or destruction by sub-contractors, of all originals and copies of Confidential Information and proprietary materials in its or their possession or under its or their control.
25.3. Termination Assistance. The Customer may request but not oblige Wanatel to assist with handover of systems to a third party upon termination of this Agreement. Should Wanatel provide this Service, it will be deemed a Consulting Service and charged accordingly.
25.4. Accrued Rights. The expiry or termination of this Agreement will be without prejudice to any rights of the Parties accrued as at the date of such expiry or termination.
25.5. Survival. Termination of this Agreement will not affect the enforceability of the provisions which have been specified or are by their nature required to operate after such expiry or termination.
26. FORCE MAJEURE
26.1. Parties not liable for force majeure. Subject to due compliance with clause 26.2, neither Party will be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including without limitation any of the following: act of God, strikes, lock outs or other industrial action, sabotage, terrorism, civil commotion, riot, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, subsidence, epidemic or other natural physical disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, interruption of electricity supply, any act or policy of any state or government or other authority having jurisdiction over either Party, sanctions, boycott or embargo, termination or suspension of upstream network connectivity.
26.2. Duties in case of force majeure. In the event of either Party being so delayed or prevented from performing its obligations, such Party must:
26.2.1. give notice in writing of such delay or prevention to the other Party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
26.2.2. use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this Agreement; and
26.2.3. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
26.3. Right to terminate. In the event that such delay or prevention continues for more than 3 (three) months, the Party whose performance is not delayed or prevented may terminate this Agreement on 30 days´ written notice to the other Party.
27. ASSIGNMENT, SUBCONTRACTING AND RESELLING
27.1. No Assignment. Neither Party will be entitled to cede, assign, delegate, sub-license or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld.
27.2. Exceptions. Notwithstanding the provisions of clause 27.1, it is expressly recorded that Wanatel will be entitled to cede and assign all rights and obligations in terms of this Agreement to its Affiliates or any successor of all or substantially all of the business or assets of Wanatel as it pertains to the Licensed Technology, provided that Wanatel must notify the Customer of such event within a reasonable time of it occurring.
27.3. Sub-contracting. Wanatel may sub-contract its obligations in terms of this Agreement to a third party, provided that:
27.3.1. such sub-contracting shall not absolve Wanatel from responsibility for the provision of the Service or complying with its obligations in terms of this Agreement; and
27.3.2. Wanatel shall at all times remain the sole point of contact for the Customer.
27.4. Reselling. The Customer may not resell the Service, or otherwise provide the Service to a third party for consideration without Wanatel’s prior written consent.
28. NO SOLICITATION
28.1. Both Parties undertake that they will not during the term of this Agreement and for a period of 12 (twelve) months after the termination thereof for any reason, directly or indirectly employ or persuade, induce, encourage or procure any employee of the other, or any person who was an employee of the other during the previous 12 (twelve) months, to become employed by or through them or to terminate his or her employment with the other or any of its subsidiaries.
28.2. The provisions of clause 28.1 do not prohibit either of the Parties from giving consideration to any application for employment submitted on an unsolicited basis or response to a general advertisement of employment opportunities.
29. NOTICES AND DOMICILIA
29.1. Addresses. The Parties choose their addresses where they will accept service of any notices arising from or pursuant to this Agreement (domicilium citandi et executandi), as set out on the first page (cover sheet) of the Agreement.
29.2. Change of Address. Any Party will be entitled from time to time by written notice to the other(s), to vary its given address to any other address within the Republic of South Africa which is not a post office box or to vary its other domicilium contact details.
29.3. Deemed Delivery. Any notice given in terms of this Agreement must be in writing and any notice given by any Party to another (“the addressee”) which:-
29.3.1. is delivered by hand or transmitted by telefax will be deemed to have been received by the addressee on the first business day after the date of delivery or transmission, as the case may be; or
29.3.2. is transmitted by e-mail will be deemed to have been received upon confirmation of receipt (not automated receipt) thereof by the addressee; or
29.3.3. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its domicilium address for the time being will be deemed to have been received by the addressee on the 7th (seventh) day after the date of such posting.
29.4. Notice actually received. Notwithstanding anything to the contrary contained or implied in this agreement, a written notice or communication actually received by one of the parties from another, including by way of telefax or e-mail transmission, will be adequate written notice or communication to such Party.
30.1. Whole Agreement. This Agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof and the parties will not be bound by any terms, conditions or representations whether written, oral or by conduct and whether express or tacit not recorded herein.
30.2. No representations. The Parties warrant that they have not been induced to enter into this Agreement by any prior representations, warranties or guarantees, whether oral or in writing, except as expressly contained in this Agreement.
30.3. Variation. No variation, addition to or cancellation of this agreement and no waiver of any right under this agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the parties to this Agreement.
30.4. Warranty of Authority. The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under this Agreement should they prove not to be so authorised.
30.5. Waiver. The failure by any Party to enforce any provision of this Agreement will not affect in any way that Party’s right to require performance of the provision at any time in the future, nor will the waiver of any subsequent breach nullify the effectiveness of the provision. No waiver will be effective unless it is expressly stated in writing and signed by the Party giving it.
30.6. Governing Law and jurisdiction. This Agreement will be governed and construed according to the laws of the Republic of South Africa and, subject to clause 23 (Dispute Resolution), the Parties agree to submit to the exclusive jurisdiction of the South Gauteng High Court, Johannesburg regarding any and all disputes arising in connection with this Agreement.
30.7. Costs. Each Party will be responsible for its own legal and other costs relating to the negotiation of this Agreement.
30.8. Publicity. Neither Party will make or issue any formal or informal announcement or statement to the press in connection with this Agreement without the prior written consent of the other Party, provided that either Party may name the other of them as a the Customer or supplier, as applicable, and disclose the general nature of the overall arrangement between the Parties.
30.9. Reading Down. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision must be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
30.10. Severability. If the whole or any part of a provision of the Agreement is void or voidable by either Party or unenforceable or illegal, the whole or that part (as the case may be) of that provision, must be severed, and the remainder of the Agreement will have full force and effect, provided such severance does not alter the nature of the Agreement between the Parties.
30.11. Consents. Unless specifically otherwise provided, any consent, approval or agreement to be provided by a Party in terms of this Agreement may not be unreasonably withheld or delayed.
31.1. Number, gender and status. In this Agreement, unless the context requires otherwise: – words importing any one gender will include the other gender; the singular will include the plural and vice versa;
31.2. Reference to persons. A reference to natural persons will include created entities (corporate or unincorporate) and vice versa. Reference to any Party will be interpreted to include reference to their successors or permitted assigns, unless the context indicates otherwise.
31.3. Local Definitions. Words and expressions defined in any clause will, for the purposes of that clause, bear the meanings assigned to such words and expressions in such clause. If it is clear from the context that the term so defined has application beyond the clause in which it was defined, it will bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in a definitions clause.
31.4. Substantive Provisions. If any provision is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in a definitions clause, effect will be given to it as if it were a substantive provision in the body of the Agreement.
31.5. Clause Headings. Clause and sub-clause headings have been inserted for convenience only and will not be used for nor assist or affect its interpretation.
31.6. Clause References. Unless otherwise stated herein, references to clauses, sub-clauses, schedules or paragraphs are references to clauses, sub-clauses, schedules or paragraphs of this Agreement, as the case may be.
31.7. Clause Numbers. Where a clause number is cited, such citation will be deemed to include reference to all sub-clauses of that numbered clause.
31.8. Contra proferentum excluded. The rule of construction that an agreement will be interpreted against the party responsible for its drafting or preparation (contra preferentum) will not apply.
31.9. References to this Agreement. Unless otherwise stated in this Agreement, references in this Agreement to this Agreement or to any other agreement are references to this Agreement or such other agreement as varied, supplemented, substituted or replaced from time to time.
31.10. Enactments. References to any law will be deemed to include references to such law as re-enacted, amended or extended from time to time.
31.11. Date of Signature. Any reference in this Agreement to “date of signature” will be read as meaning a reference to the date of signature of the last party required to sign an agreement in order for it to come into existence.
31.12. Calculation of Days. When any number of days is prescribed in this Agreement, it will be reckoned excluding the first and including the last, unless the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, in which event the last day will be the next succeeding Business Day.
31.13. Counterparts. This Agreement may be executed in any number of counterparts (including faxed counterparts) and all of such counterparts taken together will be deemed to constitute one and the same instrument.
For purposes of the Agreement, the following terms will have the following meanings:
32.1. “Affiliate” means, in relation to a Party, the Party’s holding company, its subsidiaries, the subsidiaries of its holding company and any other company which, directly or indirectly, is controlled by the Party, controls the Party or is under common control with the Party.
32.2. “AFSA” means the Arbitration Foundation of Southern Africa, or its successors in title.
32.3. “Agreement” means this document, as well as any schedules or annexures to this document, which are all deemed to form part of the Agreement and any other documents expressly incorporated into this Agreement, as amended from time to time in accordance with the terms hereof.
32.4. “Authorised User” means the Customer or a Personnel member of the Customer or a Client that is provided with a SIP account by the Customer or such Client enabling such person to access the Communication Services.
32.5. “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
32.6. “Client” means a person that is a client of the Customer in that such person has entered into a business arrangement with Customer enabling it to access the Communications Services.
32.7. “Communication Services” means the Services provided via the Wanatel System as described in clause 6 and the relevant Manuals.
32.8. “Connectivity” means the physical and logical interconnection to the Wanatel System (including via third party data telecommunications networks) as may be specified by Wanatel to access and use the Communication Services, including the type and bandwidth of the relevant access circuit.
32.9. “Consulting Services” means all services rendered by Wanatel outside the scope of the Communication Services, including without limitation, consultancy, installation, configuration, training, project management and support other than for Errors.
32.10. “Consulting Services Fees” means the fees payable by the Customer as consideration for the rendering of Consulting Services by Wanatel, which fees will be payable on a Time and Materials basis.
32.11. “Customer Site” means any location within the Territory at which Licensed Technology is agreed to be implemented for the Customer by Wanatel.
32.12. “Customer System” means any computer system used by the Customer or an Authorised User for the purposes of accessing and using the Communication Services, comprising all hardware, network connections, database management system Software, application Software and operating system Software, including where applicable the Connectivity and the Equipment.
32.13. “CPA” means the Consumer Protection Act No. 68 of 2008.
32.14. “Equipment” means Handsets, routing devices and other hardware provided by Wanatel for the purposes of making available the Communication Services to the Customer and its Clients, including the Software implemented thereon.
32.15. “Error” means a failure by the Communication Services or Licensed Technology to conform in a material respect to the Manuals relevant thereto, but excludes all Excluded Defects.
32.16. “Emergency Maintenance” means maintenance to the Wanatel System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Communication Services, or substantial loss to Wanatel, the Customer or any third party.
32.17. “Excluded Defect” means a defect in the Communications Services or Licensed Technology caused by any of the following:
32.17.1. the Connectivity or any equipment or Software not provided by Wanatel;
32.17.2. accident, misuse, operator error, negligence or abuse or an operator’s failure to comply with the Manuals;
32.17.3. a modification, adjustment or alteration of the Equipment or Wanatel Software by persons other than Wanatel employees or a duly appointed contractor of Wanatel;
32.17.4. the failure by the Customer or Client to implement promptly any upgrade or any recommendation in respect of or as solution to faults advised by Wanatel;
32.17.5. any breach by the Customer of any of its obligations under this Agreement; or
32.17.6. Force Majeure events, power failures, failures to provide suitable environmental conditions or insects, rodents or other infestations.
32.18. “Fees” means the fees and charges to be paid by the Customer to Wanatel in respect of the Services and Licensed Technology procured pursuant to this Agreement.
32.19. “Freight Forwarder” means any party mandated to transport the Equipment from Wanatel to the Customer or any person or location nominated by the Customer, and will include forwarding agents and courier companies, whether such party is mandated by the Customer or by Wanatel on the Customer’s request.
32.20. “Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider engaged in the provision of similar services seeking in good faith to comply with its contractual obligations, complying with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
32.21. “Handset” means a telephone provided by Wanatel to the Customer pursuant to this Agreement to enable access and use of the Communications Services.
32.22. “Intellectual Property” means patents, registered designs, trade marks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as its confidential information, including in other jurisdictions, that grant similar rights as the foregoing.
32.23. “Know-How” means and includes:
32.23.1. any and all concepts, ideas, methods, methodologies, procedures, processes, know-how, formulae, techniques, models (including, without limitation, function, process, system and data models);
32.23.2. the generalised features of the structure, sequence and organisation of Software, user interfaces and screen designs;
32.23.4. general purpose consulting and Software tools, utilities and routines; and
32.23.5. logic, coherence and methods of operation of computer systems that a Party has created, acquired or otherwise has rights in and may, in connection with the performance of its obligations in terms of this Agreement, employ, provide, modify, create or otherwise acquire rights in.
32.24. “Licensed Technology” means the Equipment, Wanatel Software and Manuals made available by or on behalf of Wanatel pursuant to this Agreement.
32.25. “Manuals” means the operating and reference manuals provided by Wanatel specifying the features, procedures, standards, rules and requirements applicable to users of the Communication Services (as may be amended by Wanatel from time to time).
32.26. “Party” means either of the signatories to this Agreement and “Parties” means both of them collectively.
32.27. “Personnel” means any director, employee, agent, consultant, contractor or other representative of a party.
32.28. “Prepaid Account” means the Customer’s declining-balance prepaid account held by Wanatel as described in clause 8.3 (Prepaid Account).
32.29. “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2003.
32.30. “Service Desk” means Wanatel’s helpdesk in respect of the Communication Services.
32.31. “Service Order” means a goods, license, services and / or work order agreed to in writing by both the Parties pursuant to this Agreement describing the specific Equipment or Services to be provided by Wanatel to the Customer, whether the order is signed in hard copy (in counterparts or not), entered into via the Wanatel Website, per email or by another method.
32.32. “Services” means any and all services to be provided by Wanatel to the Customer pursuant to this Agreement, including Communication Services, and Consulting Services;
32.33. “Software” means any computer programme (whether source- or object code), as well as any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
32.34. “Territory” means the Republic of South Africa.
32.35. “Third Party Software” means any Software forming part of the Licensed Technology that is proprietary to a third party.
32.36. “Time and Materials” means the rate applicable to Wanatel’s Personnel providing a Service with reference to such Personnel’s seniority and expertise, according to Wanatel’s standard time and materials fees and charges as amended from time to time.
32.37. “VAT” means value added tax payable in terms of the Value-Added Tax Act, No 89 of 1991, as amended.
32.38. “Wanatel Software” means the Software (including Asterisk Software) that is made available to the Customer by Wanatel pursuant hereto, including Software installed on the Customer Systems and Handsets.
32.39. “Wanatel System” means the equipment, Software and communications links used by Wanatel to provide the Communication Services, but excluding all Customer Systems.
32.40. “Wanatel Website” means the website published at URL www.wanatel.co.za or such other URL as Wanatel may from time to time advise.