Terms and conditions apply
TERMS AND CONDITIONS: PACKAGE DEAL
1
INTERPRETATION
1.1.10
1.1
In these Terms and Conditions the
following terms will have the following
meanings –
"Coverage
Area"
means
the
geographical area in South Africa in
which the Service is provided;
1.1.11
"Advanced Decoder Functionality"
means
new
and
developing
technological functions supported by
your Approved Decoder, which are
introduced or become obsolete from
time to time as a result of
technological innovation;
"Decoder Care Plan" means the
(optional) contract setting out the
terms and conditions on which your
Approved Decoder is insured against
faults, theft and natural disasters,
which is provided by a third party
authorised financial services provider;
1.1.12
"Due Amounts" means the amounts
payable by you for the Package Deal,
as contemplated in clause 6 below;
1.1.13
"Equipment" means the equipment
required in order to receive and
decrypt the Service and relay it to an
enabled viewing device, and includes
the Approved Decoder, the Smartcard
(if applicable), the related satellite
reception equipment (if applicable)
and cabling;
1.1.14
"your Fees" means the fees payable
by you in respect of your access to the
Service (including subscription fees,
administrative fees and fees for
optional extras as well as any VAT
and other taxes, duties, levies or
charges thereon that may be levied by
any government authority directly or
indirectly in relation to the Service), as
reflected in your Request Record,
which fees are payable to us directly
or through one of our authorised
representatives, in any manner
authorised by us from time to time;
1.1.15
"General Amendment" means an
amendment of these Terms and
Conditions by us from time to time on
notice to you;
1.1.16
"HDD" means the hard drive memory
of a PVR Decoder;
1.1.17
"Manufacturer"
means
manufacturer of the Equipment;
1.1.18
"Monthly Due Date" means the
unalterable fixed date of each month
by which we must receive payment of
a Due Amount, being the day before
the date corresponding with the
Commencement Date in the next
months;
1.1.1
1.1.2
"Agreement" means the agreement
concluded
between
you
and
MultiChoice
when
MultiChoice
accepts
your
Request,
which
Agreement is governed exclusively by
these Terms and Conditions, as
amended from time to time, read with
your Request Record, including all
notices and statements we send to
you and, where applicable, the User
Manual;
1.1.3
"Applicable
Laws"
means
the
applicable provisions of any applicable
laws;
1.1.4
"Approved Decoder" means a decoder
approved by MultiChoice;
1.1.5
"Bouquet" means a package of
audiovisual,
audio
and/or
data
material provided by MultiChoice
Proprietary Limited;
1.1.6
"Business Day" means any day that is
not a Saturday, Sunday or public
holiday in the Republic of South
Africa;
1.1.7
1.1.8
1.1.9
"Commencement Date" means the
date on which we activate your access
to the Service;
"Consumer Protection Act" means the
Consumer Protection Act 68 of 2008,
as amended from time to time;
"Content Rights" means the copyright
and other intellectual property rights to
the audiovisual, audio and/or data
material provided by MultiChoice
Proprietary Limited;
the
1
TERMS AND CONDITIONS: PACKAGE DEAL
1.1.19
1.1.20
1.1.21
1.1.22
"MultiChoice", "we" or "us" means
MultiChoice
Proprietary
Limited
(registration number 1994/009083/07),
or MultiChoice Support Services
Proprietary
Limited
(registration
number 2007/014131/07) as the agent
of MultiChoice Proprietary Limited,
and their successors in title;
"Package Deal" means a discounted
bundled offering provided by us and
selected by you in your Request, in
terms of which we provide you with a
single offering comprising the Service
pursuant to a fixed term contract and
an Approved Decoder which we allow
you to pay for by a specified number
of consecutive monthly payments over
the Term of the Agreement without
you having to pay interest and at no
additional finance cost to you;
"Payment Instruction" means the
instruction by you to your bank to pay
your Due Amounts by way of a debit
order or similar payment method;
"your Physical Address" means the
physical address recorded in your
Request Record (being the physical
address furnished by you in your
Request, as amended from time to
time on notification by you to us);
in any other manner authorised by
us from time to time;
1.1.27
"Request
Record"
means
the
electronic record kept by us of your
Request, as updated from time to
time, and containing:
1.1.27.1
your personal information;
1.1.27.2
your
preferred
correspondence;
1.1.27.3
the Service to which you have
requested access;
1.1.27.4
your Due Amounts;
1.1.27.5
your Equipment details and
Equipment installation details; and
1.1.27.6
your election in respect
marketing communications.
method
of
of
1.1.28
"your
Schedule"
means
the
Subscription Agreement Schedule
completed by you and submitted to
us, containing your Request;
1.1.29
"the Service" means:
"PVR Functionality" includes the
functions of time-shifting, buffer,
copying, memory, replay and any
other similar functions of the PVR
Decoder introduced from time to time;
1.1.29.2
any
additional
selected by you,
"Reactivation Fee" means the fee
payable by you, following suspension
of your access to the Service, for
reactivation of such access by us, the
amount
of
such
fee
being
ascertainable from the Website or on
request to us at any time;
1.1.30
"Smartcard" means a smartcard
required (if applicable) for use in an
Approved Decoder in order for you to
access the Service;
1.1.31
"System Rights" means the copyright
and other intellectual property rights in
the Equipment and in the Service,
including the software incorporated
therein;
1.1.32
"Terms and Conditions" means the
terms and conditions contained in this
document, as amended from time to
time, such Terms and Conditions
being freely available to you on the
1.1.24
1.1.26.1
1.1.26.3
the Bouquet/s selected by you and
the associated services, features,
facilities and applications; and
"PVR Decoder" means an Approved
Decoder with PVR Functionality;
1.1.26
telephonically; or
1.1.29.1
1.1.23
1.1.25
1.1.26.2
"your Request" means your request
for access to the Package Deal, on
these Terms and Conditions, which
request may have been made by you
in the following ways:
by completion and submission to
us of your Schedule;
as
provided
by
Proprietary Limited;
functionalities
MultiChoice
2
TERMS AND CONDITIONS: PACKAGE DEAL
Website or on request to us at any
time;
1.1.33
1.1.34
1.1.35
1.1.36
1.2
"User Manual" is the document
containing the standard operating
instructions
for
your
Approved
Decoder, copies of which are provided
with your Approved Decoder and
available on the Website;
"VAT" means Value-Added Tax as
provided for in the Value-Added Tax
Act, 89 of 1991 or any similar
consumption based tax which we or
our agents may be obliged to levy
and/or collect;
"Website" means the website located
at
http://www.dstv.com,
or
http://www.multichoice.co.za or any
other uniform resource locator (URL)
used by us from time to time;
"You" or "your" refers to a person who
has made a request for access to the
Service on these Terms and
Conditions.
Any reference
Conditions to –
in
these
Terms
to the extent that it is impermissible to do
so.
2
CONCLUSION, COMMENCEMENT AND
DURATION
2.1
You consent to us conducting a credit
enquiry about you with any credit bureaux
or credit provider and providing your
personal information, including the manner
in which you comply with your obligations
in terms of this Agreement to credit
bureaux and/or crime prevention agencies,
once the Agreement has been concluded.
2.2
We may verify your identity and your
address, although we are not obliged to do
so.
2.3
Subject to Applicable Laws, we retain
the right to refuse to enter into this
Agreement with any person on
reasonable commercial grounds that
are consistent with our customary risk
management practices.
2.4
We will deliver the Approved Decoder to
you as soon as possible, provided that–
and
2.4.1
we have successfully conducted the
credit enquiry and concluded any
other
verification
and
approval
processes;
1.2.1
the singular includes the plural, and
vice versa; and
1.2.2
one gender includes the other gender.
2.4.2
Please note that you may be entitled to
certain rights in terms of Applicable Laws.
For the avoidance of any doubt, no term or
provision contained in the Agreement is to
be interpreted or construed so as to
directly or indirectly –
you have provided us with your
banking details and authorised a debit
order to pay for the Package Deal in
accordance with this Agreement; and
2.4.3
we have verified your account details
with your bank.
1.3
1.3.1
exclude, limit, waive or deprive you of
any rights which you may have in
terms of Applicable Laws;
1.3.2
avoid any obligation or duty which we
may have in terms of Applicable Laws;
1.3.3
set aside or override the effect of any
applicable provision of
Applicable
Laws; or
1.3.4
authorise us to do anything that is
unlawful in terms of Applicable Laws
or fail to do anything that is required in
terms of Applicable Laws,
2.5
You must ensure that your Approved
Decoder is operational and receiving a
signal within five Business Days after we
delivered the Approved Decoder to you.
2.6
The Agreement is deemed to be concluded
at our principal place of business in
Randburg, South Africa, and commences
on the date on which we accept your
Request by activating your access to the
Service.
2.7
Subject to the provisions of these
Terms and Conditions, the Agreement
is binding on you and us for the number
of months comprising the fixed term
stipulated on the Subscriber Agreement
Schedule
("the
Term")
unless
3
TERMS AND CONDITIONS: PACKAGE DEAL
terminated by either you or us in
accordance with these Terms and
Conditions.
3
OWNERSHIP AND RISK
3.1
Ownership and risk in and to the
Approved Decoder will pass to you
upon delivery of the Approved Decoder
to you.
3.2
It is your responsibility to insure the
Approved Decoder against loss or
damage. Please let us know if you
would like to take out a Decoder Care
Plan.
4
COPIES OF YOUR REQUEST RECORD
4.1
We will send you -
4.1.1
a copy of the Request Record on the
conclusion of the Agreement or on
request by you at any time; and
4.1.2
written notification of any amendments
to the Request Record -
4.1.2.1
electronically, if you have provided
us with the relevant electronic
contact details; or
4.1.2.2
by post, if you have not provided
us with the relevant electronic
contact details.
5
YOUR PERSONAL INFORMATION
5.1
You authorise us, subject to any Applicable
Laws, to –
5.1.1
5.1.2
obtain (where applicable by retrieval
from
your Approved Decoder),
capture, store, analyse and use for
our marketing purposes your viewing
habits and profile;
use information that we may have in
relation to you for the purposes of –
5.1.2.4
informing you of
competitions; and
promotional
5.1.2.5
notifying you
Amendment;
a
5.1.3
of
General
disclose your personal information –
5.1.3.1
to companies affiliated with us for
purposes of marketing their
services (subject to your right to
refuse such disclosure of your
personal information);
5.1.3.2
to any company which acquires
our business or any part thereof, or
which we acquire;
5.1.3.3
to agents, representatives or
service providers which we appoint
to
process
your
Request,
administer the Agreement or
provide subscriber management
services;
5.1.3.4
to our Payment System Providers
in order to facilitate the collection
of your Fees using payment
systems owned and operated by
third parties; or
5.1.3.5
if and to the extent that we are
required to do so, to comply with
any Applicable Law; and
5.1.4
retain your personal information
referred to in this clause for as long as
we are required to do so in terms of
Applicable Laws or in order to
exercise or protect any of our rights
under the Agreement.
5.2
It is your responsibility to ensure that the
information which you provide to us is
complete, accurate and up to date.
6
YOUR PAYMENT OBLIGATIONS
6.1
Your must pay us for the Package Deal by
way of a specified number of consecutive
monthly payments ("Due Amounts").
You will be liable for the payment of the
Due Amounts regardless of whether or
not -
5.1.2.1
processing your Request;
5.1.2.2
administering the Agreement;
6.2
5.1.2.3
informing you of any new aspects
of the Service or services provided
by our affiliates;
6.2.1
you use the Approved Decoder;
4
TERMS AND CONDITIONS: PACKAGE DEAL
6.2.2
your Approved Decoder is lost,
stolen or damaged or otherwise
capable of being used optimally or
at all;
6.2.3
you access or continue to access
the Service; or
6.2.4
you are in the Coverage Area.
and any other Equipment or facilities) and
with access to the Service in accordance
with the Agreement.
7.2
Subject to your compliance with the
Agreement, your access to the Service will
continue until it is suspended or the
Agreement is terminated in terms of these
Terms and Conditions.
Subject to any Applicable Laws, the
terms of any express written warranties,
any warranties implied by law, and/or
the Decoder Care Plan (if applicable),
we have no obligation –
6.3
We may use payment systems owned and
operated by third parties ("Payment
System Providers") to facilitate the
collection of Due Amounts and other
amounts payable by you.
7.3
6.4
You agree to authorise us –
7.3.1
to ensure that the Equipment is or
remains functional or error-free and
enables you to access the Service;
7.3.2
to ensure that any aspect of the
Advanced Decoder Functionality is
or remains functional or error-free;
7.3.3
to maintain any component
aspect of the Equipment; or
7.3.4
to ensure the integrity or error-free
playback of the material copied to
the HDD.
6.4.1
6.4.2
to collect all Due Amounts by
means of a debit order which will
be payable on the Monthly Due
Dates; and
to include the Due Amounts in
terms of this Agreement in any
other debit order authorised or to
be authorised by you to pay for
other services provided by us, so
that only one debit order is payable
and debited against your bank
account.
6.5
The Service is provided on a pre-paid
basis.
6.6
In order to have continued access to the
Service you must make, and we must
receive, your payment of the Due Amount
on or before the Monthly Due Date.
6.7
If we do not receive payment of your
Due Amount as contemplated in clause
6.5 above, we may suspend your access
to the Service, as contemplated in
clause 18 below.
6.8
If your access to the Service is
suspended, we will not reactivate your
access to the Service until we have
received payment of your Due Amounts
and the Reactivation Fee.
7
OUR OBLIGATIONS
7.1
In consideration for your payment of your
Due Amounts, and subject to you
complying with the Agreement, MultiChoice
Proprietary Limited will provide you with an
Approved Decoder (excluding installation
or
8
RESTRICTIONS ON ACCESS TO AND
USE OF THE SERVICE
8.1
You may access and use the Service
only –
8.1.1
in a single residential unit;
8.1.2
for private domestic use; and
8.1.3
at your Physical Address.
8.2
You may not use the Service in any
manner or for any purpose other than as
set out in the Agreement. Nor may you
negligently or intentionally permit any other
person to do so. Without limiting the
restrictions in clause 8.1, you may not
attempt to or –
8.2.1
access any component of the Service
other than those components to which
you are authorised to have access;
8.2.2
use the Service, or any component
thereof, for any commercial purpose;
5
TERMS AND CONDITIONS: PACKAGE DEAL
8.2.3
exhibit or provide the Service to the
public, whether or not admission fees
are charged;
9
EQUIPMENT
9.1
You acknowledge that certain aspects of
the Service may only be available in
conjunction with certain Equipment.
8.2.4
charge any person a fee to access the
Service;
8.2.5
9.2
copy any of the audiovisual, audio
and/or data material in the Service,
except by using the PVR Functionality
for time shifting or later private use
during the period of the Agreement;
You must use an Approved Decoder to
access the Service.
9.3
You undertake –
9.3.1
hire out, sell, redistribute, relay,
retransmit or rebroadcast any of the
audiovisual,
audio
and/or
data
material in the Service, including any
copy thereof that you may have made,
whether using the Advanced Decoder
Functionality or otherwise;
to comply with the User Manual and
any
warnings
and
instructions
included with the Equipment when you
install and use the Equipment;
9.3.2
not to alter the Equipment in any way;
9.3.3
to keep the Smartcard (if any) in the
Approved Decoder; and
9.3.4
to keep your decoder connected, at
least in standby mode when not in
use, to the main power supply and to
the reception equipment, to enable the
functionality of the software, updating
of the software in the decoder and in
order to ensure that your continued
access to the Service is not negatively
affected. You acknowledge that in
standby mode certain Approved
Decoders generate heat and that you
will position your decoder with this
factor in mind.
8.2.6
8.2.7
hack, reverse engineer or otherwise
compromise the security of the
conditional access system, operating
software or encryption software used
in the Smartcard and any decoder
used to receive the Service, or in the
HDD; or
8.2.8
permit, facilitate or condone any other
person conducting any of the
prohibited activities in this clause,
whether using your Equipment or
otherwise.
8.3
8.4
8.5
If you wish to receive and/or use the
Service at an address other than the
address referred to in clause 8.1.3, you
must notify us of such address.
If you wish to sell or otherwise transfer the
Equipment during the Term, you must
terminate this Agreement subject to and in
accordance with the provisions of clause
17 below.
You agree that we may, from time to
time, and on reasonable notice, delay or
interrupt the distribution or reception of
the Service, or any aspect thereof, if
this is reasonably necessary for any
purpose related to our business,
including in order to support the
provision, operation, maintenance and
security of the Service, or any aspect
thereof.
9.4
If your Smartcard is damaged, lost or
stolen –
9.4.1
you must inform us thereof within
48 hours of your becoming aware
thereof; and
9.4.2
we or one of our duly authorised
representatives will replace the
Smartcard, subject to the payment
by you of a standard replacement
fee.
9.5
We may disable the Approved Decoder
and/or the Smartcard used by you,
either temporarily or permanently, if –
9.5.1
it is damaged, lost or stolen;
9.5.2
you breach any provision of the
Agreement and you fail to remedy
such breach within 10 business
days of the date of written notice
from us requiring you to do so;
6
TERMS AND CONDITIONS: PACKAGE DEAL
9.5.3
you have not made payment of any
Due Amounts;
10.2 Subject to any Applicable Laws, we make
no warranty or representation, whether
expressly or implicitly –
9.5.4
it is necessary to protect the
integrity of the conditional access
system used for the Service; or
10.2.1
about any component of the
Equipment, or that you will be able to
access or continue to access the
Service using the Equipment, or that
such access will be continuous and/or
uninterrupted;
10.2.2
as to the quality of reception by you of
the Service, or any aspect thereof, in
the Coverage Area to the extent that
this depends upon factors beyond our
control; or
10.2.3
that the software used to provide the
Service, including our system software
and software applications, is errorfree, flawless or without fault.
9.5.5
9.6
it is otherwise reasonable to do so.
You may access material recorded on the
HDD only while you have access to the
Service.
9.7
No material on the HDD may be copied,
modified, sold or transferred to any person.
10
WARRANTIES
LIABILITY
AND
LIMITATION
OF
10.1 We draw your attention to –
10.1.1
10.1.2
10.1.2.1
10.1.2.2
10.1.3
the Manufacturer's warranty in relation
to your Approved Decoder, in terms of
which you may be entitled to have the
Approved Decoder repaired or
replaced subject to the terms of the
warranty if the period of the warranty
has not expired and you are not in
breach of the terms thereof; and
the implied warranty of quality in terms
of section 56 of the Consumer
Protection Act, in terms of which, if the
Equipment
fails
to
meet
the
requirements
and
standards
contemplated in section 55 of the
Consumer Protection Act, you may be
entitled to return the Equipment to the
supplier, without penalty and at the
supplier's risk and expense, and to
direct the supplier, at your election, to
–
repair or replace any failed, unsafe
or defective equipment; or
refund to you the price paid by you
for the equipment.
The implied warranty of quality and
your right to return the Equipment
under the Consumer Protection Act
referred to in clause 10.1.2 are in
addition
to
the
Manufacturer's
warranty referred to in clause 10.1.1
and any other implied warranty or
condition
available
under
any
Applicable Laws.
10.3 Subject to any Applicable Laws, we are,
in the absence of our gross negligence
or wilful misconduct or that of any
person acting for or controlled by us,
not liable –
10.3.1
to any person for the content of
and/or the use of materials
constituting the Service, whether
provided by us or a third party, and
you agree that the Service may
contain images and/or content that
may be regarded as unsuitable or
offensive by some viewers; or
10.3.2
for any malfunction
of the
Equipment if such malfunction
does not amount to a defect,
failure,
hazard
or
unsafe
characteristic as contemplated in
the Consumer Protection Act.
11
INTELLECTUAL PROPERTY
11.1 You agree that –
11.1.1
the Content Rights and the System
Rights are either owned by, or
licensed to, us or our affiliates and
that by entering into the Agreement
you acquire no right or interest in such
rights; and
11.1.2
you will not infringe our rights or
interests, or those of our suppliers or
licensors, in the Content Rights and
the System Rights, in the course of
7
TERMS AND CONDITIONS: PACKAGE DEAL
your access to and use of the Service.
Nor
may
you
negligently
or
intentionally permit any other person
to do so.
12
12.2 You agree to such implementation,
maintenance and modification of the
security framework, which may include the
disconnection or discontinuation of any
features of the Equipment which facilitate
unauthorised use of the Service.
12.3 Our failure to implement the whole or part
of the security framework will not constitute
a waiver of any of our rights resulting from
the unauthorised use of the Service.
COMMUNICATIONS WITH US
13.1 You may authorise any person to
communicate with us on your behalf in
relation to the Agreement, provided that
such person complies with our standard
security check. You agree to be bound by
all requests and undertakings made by
third parties on your behalf in terms of this
clause.
13.2 It is your responsibility not to disclose the
personal information relevant to our
standard security check to third parties
whom you have not authorised to
represent you.
14
market or promote our services and/or
those of our suppliers, affiliates and/or
clients, subject to your right to restrict
unwanted direct marketing;
14.2.2
inform you about the Service and
operational systems, and changes to
these;
14.2.3
provide you with information which we
believe may be of particular interest or
relevance to you;
14.2.4
advise you of the status of your
account and/or any amounts owing by
you to us;
14.2.5
remind you of forthcoming dates on
which payment of your Due Amounts
may be due; and
14.2.6
notify you of a General Amendment.
SECURITY
12.1 You acknowledge that the provision of the
Service includes and relies on a
technological security framework ("security
framework") designed to protect the
Service against unauthorised use, which
security framework will be automatically
implemented, maintained and modified
from time to time.
13
14.2.1
14.3 You may refuse to accept, require us to
discontinue, or pre-emptively block in
accordance with clause 16.7 below, any
approach or communication from us if that
approach or communication is primarily for
the purpose of direct marketing ("Direct
Marketing Communications").
14.4 You may opt out of receiving Direct
Marketing Communications from us –
14.4.1
at the time of making your Request, by
ticking the relevant "opt-out" box on
your Schedule or, if your Request is
made
telephonically,
by
communicating your wish to opt out;
and
14.4.2
at any time by requesting us (in any
manner,
whether
telephonically,
electronically, in writing or in person)
to desist from sending any Direct
Marketing Communications to you.
COMMUNICATIONS WITH YOU
14.1 Subject to any Applicable Laws, we may
communicate with you, amongst other
methods, by means of e-mail, on-air
communications, or by way of text or other
messages to your cellular phone,
computer, laptop, mobile device or to your
decoder for display on your television
screen.
14.2 Subject to any Applicable Laws and
clauses 14.3 to 14.7 below, you consent to
our use of such communication methods,
among other things, to –
14.5 If you have opted out in accordance with
clause 16.4, we will –
14.5.1
send you written (which may include
electronic) confirmation of receipt of
your opt out request; and
14.5.2
not send you any further Direct
Marketing Communications.
8
TERMS AND CONDITIONS: PACKAGE DEAL
14.6 You may, in terms of the Consumer
Protection Act, register a pre-emptive block
against Direct Marketing Communications.
If you do so, we will not send you Direct
Marketing Communications unless you
have expressly consented to receiving
Direct Marketing Communications from us.
14.7 We will not send you Direct Marketing
Communications at home at any period
during which it is prohibited by law to do
so, unless you have expressly or implicitly
requested or agreed otherwise.
15
AMENDMENTS TO AND VARIATIONS IN
THE SERVICE
15.1 The nature, composition and content of the
Service are determined by MultiChoice
Proprietary Limited and may be changed
from time to time, subject to any Applicable
Laws, and subject to your right to terminate
the Agreement in accordance with these
Terms and Conditions.
15.2 The various systems necessary for or
associated with the provision of the Service
(including technical services, signal
distribution and satellite capacity, the
conditional access system, the software
operating system, software applications,
subscriber management services and
business systems) are determined by
MultiChoice Proprietary Limited and are
subject to ongoing innovation and change
and may be amended from time to time,
subject to any Applicable Laws and subject
to your right to terminate the Agreement in
accordance with these Terms and
Conditions.
16
AMENDMENT OF THE TERMS AND
CONDITIONS
Subject to the terms of the Agreement and
any Applicable Laws, you agree to be
bound by a General Amendment from the
date specified in the General Amendment
notice, which date will be a reasonable
time after the date of the General
Amendment notice.
17
TERMINATION OF THE AGREEMENT
17.1 Notwithstanding clause 2.7 above, you
may terminate this Agreement before the
end of the Term ("early") by giving us 20
Business Days' written notice, on the
conditions set out below. If you terminate
this Agreement early, the date on which
this Agreement is terminated will be called
the settlement date.
17.2 Subject to clause 17.3 below, to terminate
this Agreement early, contact us to find out
the amounts you still owe us. You can ask
to end this Agreement immediately or at a
future settlement date.
17.3 You acknowledge and agree that we
provided you with the Package Deal at a
lower price than the actual price or
amounts which would have been
payable for the sum of each of the
components comprising the Package
Deal if you had purchased them
separately and at different times during
the term of this Agreement. If you
terminate this Agreement early, we may
charge you any amounts which you owe
us in terms of the Agreement up to the
date of cancellation and a reasonable
cancellation fee which takes into
account, amongst other amounts, all of
the reductions granted by us to you in
respect of all aspects of the Package
Deal pursuant to this Agreement, to the
maximum extent permitted by law.
17.4 The termination of the Agreement will not
affect –
17.4.1
our rights or remedies, or yours, for
the period prior to termination; or
17.4.2
those rights and obligations which, in
terms of the Agreement, either
expressly or by implication, will
survive beyond termination.
17.5 We will inform you of the end date of
the Term between 40 and 80 Business
Days before the expiry of the Term of
this Agreement. We will include a copy
of the terms and conditions of the
General Subscriber Agreement which
will apply if you continue with your
subscription to the Service. On the
expiry of the Term, your subscription to
the Service will automatically continue
on a month-to-month basis, subject to
the terms and conditions of the General
Subscriber Agreement (including, for
the avoidance of doubt, the Fees
prevailing at the time), unless you
expressly inform us that you do not
wish to continue on a month-to-month
basis.
9
TERMS AND CONDITIONS: PACKAGE DEAL
18
BREACH OF AGREEMENT
18.1 If any party ("the Defaulting Party")
breaches
any
provision
of
the
Agreement and fails to remedy such
breach within 20 Business Days of
receipt of written notice from the other
party ("the Aggrieved Party") requiring
it to do so, then the Aggrieved Party will
be entitled, at its option –
18.1.1
18.1.2
to
claim
immediate
specific
performance of any of the
Defaulting
Party's
obligations
under the Agreement, whether or
not such obligation is then due; or
in the event of the breach of a
material
provision
of
the
Agreement in circumstances where
the remedy of specific performance
or damages would not adequately
prevent the Aggrieved Party from
being prejudiced, to cancel the
Agreement, in which case the
Aggrieved Party must give the
Defaulting Party notice in writing of
the
cancellation,
and
the
cancellation will take effect on the
giving of the notice.
18.2 If we cancel the Agreement in terms of
clause 18.1, we may charge you any
amounts which you owe us in terms of
the Agreement up to the date of
cancellation
and
a
reasonable
cancellation fee which takes into
account amongst other amounts, all of
the reductions granted by us to you in
respect of all aspects of the Package
Deal pursuant to this Agreement, to the
maximum extent permitted by law.
18.3 The cancellation of the Agreement will not
affect –
18.3.1
our rights or remedies, or yours, for
the period prior to cancellation; or
18.3.2
those rights and obligations which in
terms of the Agreement, either
expressly or by implication, will
survive beyond cancellation.
18.4 The breach provisions in these Terms and
Conditions are without prejudice to any
other remedies to which a party may be
entitled at law, including the right to claim
damages.
18.5 In addition to our rights under clause
18.1, if you materially breach the
Agreement we may, without prejudice to
any other remedy that we may have,
immediately and without notice to you,
suspend your access to the Service.
18.6 If we have suspended your access to
the Service and you –
18.6.1
remedy your breach;
18.6.2
comply with the Agreement; and
18.6.3
make payment to us of the Due
Amounts and the Reactivation Fee,
then we will reactivate your access
to the Service.
18.7 To the maximum extent permissible in
law, you will be liable to us for all legal
costs incurred by us in recovering any
amount that you owe to us.
18.8 A certificate signed by any of our
managers specifying the amount owing
by you and further stating that such
amount is due, owing and payable by
you, shall be sufficient (prima facie)
proof of the amount thereof and of the
fact that such amount is so due, owing
and payable for the purpose of
obtaining provisional sentence or other
judgment against you in any competent
court. It shall not be necessary to prove
the appointment of the person signing
any such certificate.
19
DECLARATIONS AND WARRANTIES BY
YOU
19.1 You confirm, warrant and declare that –
19.1.1
you have been given an adequate
opportunity to receive, read and
understand
the
terms
and
conditions and that you are aware
of all the terms printed in bold;
19.1.2
you understand and accept your
risks, costs, rights and obligations
in terms of this Agreement; and
19.1.3
all the information which you have
provided to us in connection with
this Agreement is true, complete
and accurate, and that you are not
aware of any material facts or
10
TERMS AND CONDITIONS: PACKAGE DEAL
circumstances which you have not
disclosed to us which, if disclosed,
may adversely affect our decision
to make the Package Deal available
to you.
20
GENERAL
20.1 These Terms and Conditions, read with
your Request Record –
20.1.1
20.1.2
constitute the sole and complete
record of the Agreement between you
and us in respect of the Package
Deal; and
supersede any previous agreement
between you and us, or between you
and any other company, in terms of
which you were authorised to have
access to the Service.
20.2 Neither you nor we are bound by any
express or implied representation,
warranty (except any warranty implied
by law), undertaking, promise or the like
not recorded in the Agreement.
20.3 Any relaxation or indulgence which we may
show you at any time in regard to the
Agreement is without prejudice to, and
does not constitute a waiver of, any rights
we may have, either in terms of the
Agreement or any Applicable Laws.
20.4 If any provision of the Agreement is found
to be wholly or partly invalid, unenforceable
or unlawful, then –
20.4.1
the Agreement will be severable in
respect of the provision in question to
the
extent
of
its
invalidity,
unenforceability or unlawfulness; and
20.4.2
the remaining provisions of the
Agreement will remain of full force and
effect.
20.7 The Agreement is subject to, and will be
interpreted, implemented and enforced in
terms of the laws of South Africa.
20.8 The parties consent to the jurisdiction of
the Magistrates’ Court in respect of all
proceedings arising out of or pursuant to
the Agreement.
This notwithstanding,
either party may institute any proceedings
arising out of or pursuant to the Agreement
in any Division of the High Court of South
Africa having jurisdiction or any other
forum having jurisdiction.
20.9
Subject to the Agreement, the parties
choose the following addresses for
the service of all notices and
processes arising out of the
Agreement –
20.9.1
Us: 251 Oak Avenue, Randburg,
2125, Gauteng, South Africa.
20.9.2
You: Your Physical Address.
20.10
Either party may at any time by
written notice to the other party vary
its domicile address in terms of clause
20.9 to any address within the
Republic of South Africa.
20.11
A notice actually received by a party
will be adequate notice to that party
notwithstanding that it was not
delivered to that party’s domicile
address in terms of clause 20.9.
20.5 We may cede our rights in terms of the
Agreement to any person without your
consent.
20.6 You may not cede any of your rights or
transfer/assign any of your obligations
under the Agreement to any person without
our prior written consent.
11
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