Introduction
1.1Background.
1.1.1. Telecom Exchange (pty) Ltd provides “voice over IP” communications services and data 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 and that of any other additional agreements made in writing. The Parties
2.1. ‘Telecom Exchange” means Telecom Exchange (pty) Ltd , a private company registered in accordance with the laws of South Africa with registration number 2019/142297/07
2.2. The “Customer” means the party that indicated its agreement to these terms, as recorded via Telecom Exchange (pty) Ltd data base or this service level agreement.
3.1. Appointment. The Customer hereby appoints Telecom Exchange (pty) Ltd to allow Telecom Exchanges chosen suppliers to supply Licensed Technology and Telecom Exchange (pty) Ltd provide the Services to the Customer through their suppliers on the terms and conditions of the Agreement, and Telecom Exchange (pty) Ltd 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.
Amendment of terms
4.1. Amendment. Telecom Exchange (pty) Ltd may amend the terms of this Agreement at any time, and will notify the Customer by posting/emailing the amended Agreement. The Customer has a duty to keep itself informed of the latest version of the Agreement
Notice Of Amendment
4.2. Notice of Amendments.Telecom Exchange (pty) Ltd must give at least one calendar months’ notice for the amendments, which will become effective at the beginning of the first calendar month after the notice period has expired.
4.3. Rejection of Amendments. If the Customer objects to any amendment, it may terminate the Agreement as set out in clause 24 (Breach and Termination).
Fees & Payments
5.1. Payment.
5.1.1. The Customer must pay all amounts due to Telecom Exchange (pty) Ltd in South African Rands without deduction or set-off for any reason.
5.1.2. No obligation to make payment will be cancelled and no refunds will be given under this Agreement unless agreed between the Parties in writing.
5.1.3. Payment must be made by direct deposit/Direct Debit into a bank account designated by Telecom Exchange (pty) Ltd. Telecom Exchange (pty) Ltd may designate a new bank account or another method of payment by written notice to the Customer.
5.1.4. The Parties will agree whether the Customer is to pay the Communications Service Fees in arrears or on a prepaid basis.
5.2. Fees. The Customer will pay Fees to Telecom Exchange (pty) Ltd for provision of the Services and Licensed Technology as follows, unless otherwise agreed between the Parties in writing.
5.2.1. If the Customer is to pay the Communication Services Fees in arrears, these will be invoiced monthly in arrears and must be paid within 7 days (seven) calendar days of the date of the invoice.
5.2.2. Consulting Services Fees will be invoiced monthly in arrears and must be paid within 7 (seven) days calendar days of the date of the invoice.
5.3. Prepaid Account. If the Customer is to pay the Communication Services Fees on a prepaid basis the following will apply:
5.3.1. Payment for the Communication Services must be made to Telecom Exchange (pty) Ltd in advance, and credited to the Customer’s Prepaid Account.
5.3.2. Communications Service Fees will be deducted from the Prepaid Account with Telecom Exchange (pty) Ltd on a declining-balance basis.
5.3.3. If the balance in the Prepaid Account reaches zero, the Communication Services will be suspended until the Customer has credited the Prepaid Account appropriately.
5.3.4. 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.
5.4. Pricing, Is displayed on the SLA agreement signed by the customer.
Escalation. Sales may increase the Fees as follows:
5.5.1. Telecom Exchange (pty) Ltd 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 Telecom Exchange (pty) Ltd’s pricing.
5.5.2. Telecom Exchange (pty) Ltd 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).
5.6. 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 Telecom Exchange (pty) Ltd 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.
5.7. Expenses. The Customer will reimburse all reasonable expenses that are necessarily and actually incurred by Telecom Exchange (pty) Ltd and Telecom Exchange (pty) Ltd’s Personnel in fulfilling Telecom Exchange (pty) Ltd’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, and report and presentation material.Maintenance costs throughout the duration of this agreement will charged at a base cost of R500 or more depending on the severity of the issue.
5.8. Taxes. It is recorded that all amounts to be paid by the Customer to Telecom Exchange (pty) Ltd in terms of this Agreement are exclusive of VAT.
5.9. Allocation. Telecom Exchange (pty) Ltd 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.8.10 Disputed Invoices
5.10.1. Should a Party (“the Disputing Party”) dispute an invoice (“the Disputed Invoice”), that Party must, in good faith and in writing, notify (“the Dispute Notification”) the other Party (“the invoicing Party”) of the dispute within 7 (seven) days of receipt of such Disputed Invoice.
5.10.2 The Parties shall exercise reasonable efforts to resolve a dispute in terms of a Dispute Notification within 7 (seven) days of receipt by the Invoicing Party of such Dispute Notification. If the dispute referred to in clause
5.10.1. is not resolved within 7 (seven) business days following receipt or deemed receipt of the notice referred to in this clause
5.10.2 the dispute may be referred by Disputing Party for investigation and determination by a firm of auditors agreed to between the Parties or, failing agreement, by a firm of auditors nominated by the President, for the time being, of the South African Institute of Chartered Accountants. Such auditors will, in their determination of the dispute act as experts and not as arbitrators and their decision shall be final and binding on the Parties. The Parties shall co-operate in any such investigation and any sum found to be due or overpaid shall promptly be paid or refunded (together with interest payable or paid (if any) as the case may be), within 7 (seven) days of the date of such determination. The independent auditor’s costs shall be paid by the Party disputing the tax invoice in question unless such tax invoice is established to have been incorrect in which case the Invoicing Party shall pay such costs.
5.10.3. Should the customer not lodge a Dispute Notification relating to an invoice within the prescribed 7 (seven) day period specified in clause
5.10.1., such invoice shall be deemed to be correct and shall remain due and payable by the due date. A Dispute Notification shall not relieve the Reseller or customer or customer of its obligation to pay all undisputed Charges by the due date.
5.10.4. Notwithstanding any dispute between the Parties as to any payment, the customer shall, throughout the term of this Agreement, remain obliged to observe and perform its obligations in terms of this Agreement.
Risk and Ownership:
6.1. Ownership. Ownership of all Equipment is retained by Telecom Exchange (pty) Ltd (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.
6.2. 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.
6.3. 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 Telecom Exchange (pty) Ltd Delivery of such Equipment to the nominated Freight Forwarder.
Use of service:
7.1. 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 Telecom Exchange (pty) Ltd as a result of any loss sustained as a result.
8. Customer Cooperation:
In order to allow Telecom Exchange (pty) Ltd to provide the Services, the Customer agrees to provide such assistance, support and co-operation as is reasonably required by Telecom Exchange (pty) Ltd. The Customer will, without limitation: 8.1.
Access to premises. Allow Telecom Exchange (pty) Ltd and its Personnel reasonable access to its premises in order for Telecom Exchange (pty) Ltd to provide the Services;
8.2. Co-operation. Procure that its employees, officers and agents co-operate with and give Telecom Exchange (pty) Ltd any necessary assistance in the provision of the Services, and procure that sufficiently qualified and authorised Personnel are made available for this purpose;
8.3. Instructions and Policies. Comply with any reasonable instructions given by Telecom Exchange (pty) Ltd relating to the provision of the Services;
8.4. 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.
8.5. Consents and decisions. timeously provide necessary consents or approvals and take such decisions as are necessary in order for Telecom Exchange (pty) Ltd to provide the Services without impediment or delay;
8.6. Access to systems. Provide Telecom Exchange (pty) Ltd with reasonable access to the Customer’s computer systems to enable Telecom Exchange (pty) Ltd to meet its obligations in terms of this Agreement, including access to the Customer’s network, whether directly or remotely;
8.7. 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; 8.8. Regular feedback. provide regular feedback to Telecom Exchange (pty) Ltd to ensure that Telecom Exchange (pty) Ltd is in a position to provide the Services, and notify Telecom Exchange (pty) Ltd as soon as reasonably possible of any issues, concerns or disputes with respect to the Services.
9. Confidential information:
9.1. 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.
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.
9.3. 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.
9.4. Survival. The Parties’ obligations of confidentiality under this agreement will survive the termination of this Agreement for any reason whatsoever.
Limitation of liability:
10.1. Loss. For the purposes of this clause “Loss” means and includes:
10.1.1. 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.
10.1.2. 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.
10.2. Liability Limited. Telecom Exchange (pty) Ltd 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).
10.3. Specific Exclusions. Without limiting the provisions of clause
10.2 in any way, Telecom Exchange (pty) Ltd will not be liable to the Customer for Loss arising from:
10.3.1. 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;
10.3.2. The Customer’s failure to put in place adequate security measures as set out in clause 16 (Security);
10.3.3. The interruption, suspension or termination of the Communications Services for whatever reason; or
10.3.4. Loss arising as a result of lost data damaged or corrupted data or a delay in transmissions.
10.4. Quantum of Damages Limited. Without in any way limiting or derogating from the above provisions, the Parties agree that the total amount of Telecom Exchange (pty) Ltd’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.
10.5. Indemnity. The Customer will indemnify, defend, and hold Telecom Exchange (pty) Ltd harmless from any and all Loss claimed by any Authorised User, Client or third party against Telecom Exchange (pty) Ltd relating to or arising from the Agreement or provision of the Services, including without limitation:
10.5.1. 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;
10.5.2. The infringement by the Customer of any Intellectual Property Right; or.
10.5.3. Any unlawful act or breach of this Agreement by the Customer.
10.6. Procedure on Indemnity. If any third party claim contemplated in clause
10.5 is made against Telecom Exchange (pty) Ltd (“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.
10.7. Benefit of Limitations. These limitations on liability and indemnities apply to the benefit of Telecom Exchange (pty) Ltd and Telecom Exchange (pty) Ltd’s Affiliates, directors, officers, employees, contractors, agents and other representatives, as well as any third parties whose networks are connected to the Telecom Exchange (pty) Ltd System.
10.8. Precedence. In the case of ambiguity, this clause 10 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
Breach and termination:
11.1. Termination for Cause. If either Party:
11.1.1. Fails to comply with any of its obligations or commits a breach of this Agreement and fails to remedy the default or breach within 7 (Seven) Business Days after having received a written notice to do so;
11.1.2. Resolves to begin business rescue proceedings as contemplated in chapter 6 of the Companies’ Act 71 of 2008;
11.1.3. Is placed in provisional or final liquidation or sequestration, or judicial management;
11.1.4. Enters into any compromise arrangements with its creditors;
11.1.5. 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;
11.1.6. 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:
11.1.7. To hold the Party in breach to the Agreement; or
11.1.8. To cancel the Agreement.
11.2.1 Termination for Convenience. Either Party may terminate the Agreement by giving no less than 30 (thirty) days’ prior written notice to the other party
11.2.2 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
11.3. 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.
Effect of Termination:
12.1. Amounts due to Telecom Exchange (pty) Ltd. 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 well as the full balance of the outstanding capital, interest, and services for the remaining period as well as a reasonable cancellation fee…
12.2. Duties upon termination. Upon termination of this Agreement for any reason:
12.2.1. the Customer must cease using all the Licensed Technology and promptly return to Telecom Exchange (pty) Ltd any and all tangible elements of such Licensed Technology, save for the Equipment purchased and fully paid by Customer;
12.2.2. The provision of all Services will be terminated including by rendering the relevant Licensed Technology inoperable; and
12.2.3. 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.
12.3. Termination Assistance. The Customer may request but not oblige Telecom Exchange (pty) Ltd to assist with handover of systems to a third party upon termination of this Agreement. Should Telecom Exchange (pty) Ltd provide this Service, it will be deemed a Consulting Service and charged accordingly.
12.4. 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.
12.5. 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
12.6 upon expiry of the agreement, the agreement period will automatically be extended for another 24 months, unless explicitly cancelled by the customer, prior to expiry. Cancellation thereof will be subject to clause 12. 13. General:
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.
13.2. 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.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. Costs. Each Party will be responsible for its own legal and other costs relating to the negotiation of this Agreement.
13.8. 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.
13.9. 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.
13.10. 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
13.11. 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.
Your consent
Consent To Process Personal Information – in terms of the protection of personal information act 4 of 2013 (“popia”), telecom exchange (pty) ltd (pty) ltd is obliged to obtain the consent of the person or entity set out above (“the applicant”) to process all personal information of applicant as defined within popia (“the personal information”). therefore, the applicant expressly consents and agrees that telecom exchange (pty) ltd may: -make enquiries of whatever nature with any third party including without limiting; credit bureaus to confirm and verify any personal information received from the applicant; -collect and process the personal information for purposes of providing the services provided in terms of a rental agreement entered into directly with the applicant or which may be entered into by the applicant with a supplier and which agreement was subsequently ceded to telecom exchange (pty) ltd and to administer and maintain the business relationship with the applicant; -process and disclose the personal information for the following purposes: the prevention, detection and reporting of fraud and criminal activities including money laundering activities; in compliance with any legal obligation; to any person providing services to or requiring services from or representative, agent or supplier of telecom exchange (pty) ltd ; to any entity or person that may cede or assign to telecom exchange (pty) ltd an agreement with the applicant; determining the creditworthiness of the applicant and retain and utilize the personal information for credit record and scoring purposes; marketing to and business opportunities with related entities of telecom exchange (pty) ltd
