ACT ISP – Service Terms and Conditions
The Customer hereby appoints ACT to perform the Services as described in these Service Terms and the Customer Application Form and ACT hereby accepts the appointment.
1. Definitions
1.1. “ACT” means ACT ISP Services CC (Reg. No. 1988/031840/23), including affiliated close corporations Wifiza Telecoms CC (Reg. No. 2010/171297/23) and ACT Computers Kroonstad Head Office CC (Reg. No. 1988/031465/23).
1.2. “CAF” means the Customer Application Form.
1.3. “Access Service” means an electronic communications service provided using fixed wireless or fibre optic cable, which is supplied, maintained and operated by an entity licensed to provide fixed wireless or fibre optic cables.
1.4. “Services” means the provision of Data and Voice services to the Customer specified in the Customer Application Form in terms of this Agreement.
1.5. “AUP” and “FUP” mean the ACT Acceptable Usage Policy and Fair Usage Policy published on www.act.co.za, which form part of this Agreement.
1.6. “Bandwidth” means the bi-directional throughput at which any quantum of data is delivered to the Customer by ACT.
1.7. “CPE” means Customer premises equipment, which are routers and similar Equipment provided by ACT to the Customer as rental or outright purchased items.
1.8. “Electronic Communications Network Service Provider” means the entity providing last mile connectivity over fixed wireless or fibre optic for the Customer on behalf of ACT.
1.9. “Premises” means the premises to which ACT will provide the Access Service to the Customer.
1.10. “Agreement” means these Service Terms and Conditions together with the Customer Application Form, the AUP and the FUP.
1.11. “Commission” means that the Service(s) have been installed and are available for use by the Customer.
1.12. “Customer” means the person or company applying for Services as set out in the Customer Application Form.
1.13. “Effective Date” means the date of signing this Agreement or the date of inception of service delivery, whichever occurs first.
1.14. “Outage” means that the service is unavailable to all equipment on the Customer network as a result of a problem on the ACT network or a cable break between ACT and the Customer.
1.15. “Planned Maintenance” means times where the Customer may experience an outage as a result of scheduled changes to the ACT network.
1.16. “SLA” means service level agreement as set out in clause 10 below.
2. Conditions
2.1. The Customer understands and accepts that the provision of the Service(s) as set out in the Customer Application Form shall be subject to the provisions of the Electronic Communications Act 36 of 2005 (the Act) and the licences issued by ICASA to Wifiza Telecoms CC (Nos. 0259/IECS/JAN/2009 and 0259/IECNS/JAN/2009).
2.2. The Customer hereby consents that, and authorises ACT to:
2.2.1. Contact, request and obtain information from any credit provider or registered credit bureau relevant to an assessment of the behaviour, profile, payment patterns, indebtedness, whereabouts, and creditworthiness of the Customer;
2.2.2. Furnish information concerning the behaviour, profile, payment patterns, indebtedness, whereabouts, and creditworthiness of the Customer to a registered credit bureau or to any credit provider seeking a trade reference regarding the Customer’s dealings with ACT.
2.3. ACT shall not at all be liable for any loss or damage arising from a delay in providing the Service(s).
2.4. ACT shall not be liable for any loss or damage resulting from a disruption of the Service(s).
2.5. The Parties further agree that the risk of loss or damage to or destruction of ACT equipment installed on the Customer’s premises, where applicable, regarding the provision of the Service(s) in terms of this Agreement, shall pass to the Customer from the date the equipment is installed.
3. Description of Service
3.1. ACT will provide an Access Service as described in the CAF.
3.2. The Customer may during the contract, with 30 calendar days’ prior written notice, make a change to the existing Service on the condition that the replacement Service carries the same or greater rand value and is of equivalent or greater bandwidth and quality. Such a change will not affect the existing contract duration. Any change to a lower value or bandwidth is subject to clause 4.2.
4. Service changes
4.1. If the Customer requires the service to be moved from one premises to another after the service has been commissioned, the move will be seen as a new order and the Customer will be required to submit a new Order Form. The moving of the circuit will be seen as a new installation with applicable cost.
4.2. The Customer may request ACT to increase the bandwidth of the Service(s) at the prevailing charges at any time during the contract term as defined in clause 5. A decrease in bandwidth is only permitted with ACT’s prior approval, at ACT’s sole discretion.
5. Duration
5.1. This Agreement, including any equipment rental, is on a month-to-month basis, and either party may terminate it by giving one (1) calendar month’s written notice.
6. Termination of Service
6.1. The Customer shall accept full responsibility for all spilled costs and expenses incurred by ACT in terms of this Agreement and undertakes to pay the costs to ACT, should the Customer cancel the order for the provision of the Service(s), as set out in the CAF, after the Effective Date of this Agreement or request any changes regarding the installation of the Service(s).
6.2. Should the Customer terminate this Agreement, the Customer remains liable for all fees up to the end of the notice period and must return the rental equipment in terms of clause 8.3.
6.3. ACT may terminate this Agreement and suspend services should the Customer fail to pay the fees set out in the CAF.
6.4. Excluding planned maintenance, should the Customer experience an outage of more than 240 hours from when a fault is logged with ACT, the Customer may terminate this Agreement immediately and without penalty.
7. Fees
7.1. The Customer undertakes to pay ACT the prescribed Installation Fee and Monthly Rental as set out in the CAF, monthly in advance from the date the Service(s) is commissioned, which charges shall be subject to adjustments from time to time as determined by ACT.
7.2. The Fees may be increased by one (1) calendar month’s prior written notice to the Customer.
7.3. If the Agreement terminates as a result of the Customer’s breach:
7.3.1. ACT will be entitled to recover from the Customer all damages ACT may suffer by reason of such termination, including arrear fees and other costs, charges, assessments, and reimbursements.
7.4. Fees are payable monthly in advance on or before the 7th day of each month, or on the selected debit order date. If payment is not received by the due date, ACT may suspend the Service(s) until the account is paid in full. A reconnection fee as published by ACT will be payable before the Service(s) are restored. The Customer will be liable for all reasonable costs incurred by ACT in recovering overdue amounts, including collection and legal costs.
8. Equipment
8.1. Regarding Equipment, the Parties expressly agree as follows:
8.2. ACT will at all times be and remain the owner of all equipment being rented, and nothing in this Agreement will be interpreted so as to confer any rights or interest in the rental equipment to the Customer other than as the lessee of such equipment. Equipment bought on a payment plan remains the property of ACT until it has been paid in full.
8.3. On termination of this Agreement, the Customer must return the rental equipment to ACT within fourteen (14) days in the same condition as it was delivered to the Customer, fair wear and tear excepted. If the equipment is not returned within this period, or is returned damaged, the Customer will pay ACT the current replacement value of the equipment. The Customer must allow ACT reasonable access to the Premises to collect the equipment.
8.4. The Customer will not have access to equipment configuration and may not change or attempt to change equipment configuration.
8.5. ACT will at its own cost repair or replace rental equipment that breaks down or malfunctions during normal use. Damage caused by lightning, power surges, water, theft, tampering, misuse or negligence is the Customer’s responsibility, and the Customer will pay the cost of repair or replacement.
8.6. The Customer will be responsible for any costs related to relocation of the equipment but must give ACT reasonable written notice prior to relocating any equipment.
8.7. It will be the responsibility of the Customer to ensure that all equipment, including rental equipment, is insured under the Customer’s insurance policy.
9. Bandwidth and Fair Usage
9.1. All wireless packages are uncapped. The speeds listed are maximum (“up to”) speeds on a shared network; actual speeds may vary and are not guaranteed.
9.2. ACT monitors network usage to manage the network fairly for all customers.
9.3. Where a Customer’s usage is excessive and affects the service of other customers, ACT may manage (limit) that Customer’s speed in terms of the Fair Usage Policy (FUP).
9.4. ACT may provide usage information on request. This is a complimentary service and ACT will not be liable for any damages arising from such information.
10. Service Levels
10.1. ACT can only provide and maintain the Service on a “reasonable effort” basis and makes no warranties as regards quality of the Service, including data throughput and availability of the Service, subject to the service levels set out in the Service Level Agreement, if applicable.
10.2. ACT makes use of upstream providers (including Electronic Communications Network Service Providers) to itself provide the Service, and consequently service levels are subject to the performance of such upstream providers. The Customer further acknowledges and agrees that ACT will not be liable for any failure to provide the Services as a result of such service providers failing to provide the services to ACT.
10.3. The Service provides access to the internet, which is subject to bandwidth constraints, system failures and all other factors that may impact on the Customer’s access, for which ACT accepts no responsibility.
11. Confidentiality
11.1. ACT and the Customer, to the extent of their contractual and lawful right to do so, will exchange proprietary or confidential information as reasonably necessary for each to perform its obligations under this Agreement and for the Customer to avail itself of the service rendered by ACT under this Agreement. All information relating to this Agreement provided by either Party to the other, whether oral or written, and when identified as confidential or proprietary in writing, is hereby deemed to be confidential and proprietary information (“Proprietary Information”).
11.2. A party receiving Proprietary Information pursuant hereto (the “Receiving Party”) will not, without the prior written consent of the Party disclosing such information (the “Disclosing Party”), disclose any portion of the Proprietary Information to any person or entities other than the employees and consultants of the Receiving Party who reasonably need to have access to the Proprietary Information in connection with the purposes of this Agreement and have agreed to protect Proprietary Information as though they were a Party to this Agreement.
12. Force Majeure
12.1. If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement from any cause beyond the reasonable control of that Party, including without limitation, acts of God, civil commotion, riots, insurrection, lockouts, acts of government, fire, theft, explosion, the elements, load shedding, power failures, lightning, vandalism or theft of network infrastructure, epidemics, governmental embargoes or like causes, the Party so affected shall be relieved of its obligation hereunder during the period of such events and its consequences, but only to the extent so prevented, and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall within twenty four (24) hours of the occurrence constituting such an event (force majeure) be given of any such inability to perform by the affected Party, and provided further that the obligation to give such notice shall be suspended to the extent necessitated by such force majeure.
12.2. The parties hereby agree that should force majeure last more than fourteen (14) days, the Party who has not invoked force majeure to excuse any non-performance of its obligation may terminate this agreement by giving ten (10) days’ written notice to the other.
13. Assignment
13.1. In the event that ACT or ACT’s assets are acquired by another company (“the Acquiring Company”), the Customer will remain bound to this Agreement and the Acquiring Company will assume all of ACT’s responsibilities and obligations as well as rights as set out in this contract.
13.2. Neither party may sell, assign, cede or transfer this Agreement or any right in terms of this Agreement or any portion thereof without the prior written consent of the other party, which consent shall not be unreasonably withheld.
14. No Waiver
14.1. Failure by either party to exercise any rights under this Agreement in one or more instances will not constitute a waiver of such rights in any other instance. A waiver of any default under this Agreement will not be deemed a waiver of any other default.
15. Applicable Law
15.1. This Agreement shall be governed by and interpreted in accordance with the law of the Republic of South Africa. The Customer consents to the jurisdiction of the Magistrate’s Court having jurisdiction, even if the amount claimed exceeds that court’s normal jurisdiction.
15.2. ACT may give the Customer any notice under this Agreement, including notice of fee changes, by e-mail, SMS or WhatsApp to the contact details on the Customer Application Form, and such notice will be regarded as written notice.
16. VAT
16.1. All prices include VAT at 15%.
17. Entire Agreement
17.1. This Agreement constitutes the entire Agreement between the Parties and supersedes any written or oral agreement or understanding with respect to the subject matter hereof. No interpretation, amendment, or change to this Agreement will be effective unless made in writing and signed by both Parties.