The customer appoints Amava Technologies to provide the services, subject to the terms and conditions contained in this agreement, which appointment Amava Technologies accepts.
Commencement and duration
This agreement shall commence on the effective date and shall thereafter remain in force indefinitely, subject to the remaining provisions of this agreement.
If applicable, the commencement of the services to be provided shall be in terms of each individual service order that is completed by the customer and will be effective from the service commencement date for the contract term in the service order.
Upon the expiration of the initial period, the applicable services will continue indefinitely, subject to either party providing 90 (ninety) calendar day’s written notice of termination to the other party, unless otherwise agreed in the order.
Goods and services
Amava Technologies will sell the goods and provide the services to customer in terms of the agreed order, alternatively if no order is agreed, as described and specified on the website.
If Amava Technologies supplies goods that are accompanied with software, the use of the software will be regulated by a license agreement between the customer and the owner or licensor of the software, which agreement will constitute a separate agreement between the customer and the owner or licensor of the software. Amava Technologies will not be a party to this license agreement.
The customer expressly gives its permission and authorises Amava Technologies to remotely access its data, network, system, software, hardware or do whatever is required to fulfil its obligations and render the services in terms of the agreement.
Provision of Services
Amava Technologies agrees that it will from the effective date, and thereafter continue throughout the duration of this agreement, supply the services as requested by the customer from time to time, in accordance with the agreement.
For the duration of this agreement, the customer shall obtain the services as it requires from
Amava Technologies in terms of this agreement, the services schedule and the service order concluded from time to time.
Unless otherwise agreed, Amava Technologies shall not be under any obligation to supply any services to the customer until a service order in respect of the required services has been agreed by signing the order.
In order to provide the services, Amava Technologies reserves the right to utilize any technology available and which it considers at its discretion as the most suitable and responsible to provide services.
The services shall be used by the customer in accordance with the agreement.
Each service order shall constitute an agreement between the parties subject to and regulated by this agreement.
The customer will not knowingly create, store or disseminate any illegal content
The customer commits to lawful conduct in the use of the services, including copyright and intellectual property rights
The customer undertakes not to send or promote the sending of spam.
No terms or conditions of a customer’s order that are in conflict with this agreement will be binding.
Depending on the service in question, a customer must either place an order online or request a quote from, Amava Technologies.
If the particular service requires from Amava Technologies to provide a quote to the customer first, the Customer needs to confirm acceptance of the quote either in writing to firstname.lastname@example.org, or by ticking the confirmation button online, whichever one applies, where after the customer needs to place an order in the prescribed manner stipulated on the quote.
Any order placed by a consumer, whether it is online or otherwise, is an offer to Amava Technologies to enter into the agreement with the customer.
Ownership and risk
Risk in the goods will pass on delivery.
Ownership in the goods will only pass once the full payment for the goods have been received.
The customer will bear the risk in all goods supplied by Amava Technologies, as well as any customer hardware or equipment that will come under the control of Amava Technologies, whether at Amava Technologies’ premises or otherwise. It is the customer’s responsibility to ensure that these goods, hardware and equipment are adequately insured at all times.
The customer will be responsible for the maintenance of all the data passing over the Amava Technologies infrastructure and must ensure that adequate and systematic backups are made regularly. Amava Technologies will accordingly not be liable for loss of the customer’s data, restoration of lost data or any other as a result of the customer not complying with this “Ownership and risk” clause.
Delivery and installation
Any delivery date provided to a customer is an estimate date only and Amava Technologies shall make all reasonable efforts to deliver on the estimate date.
If Amava Technologies is not able to deliver on the estimate date, Amava Technologies will take all reasonable measures to inform the customer timeously of the delay in delivery.
Should the customer assist with the installation of any goods or services, including software.
Amava Technologies will not be liable for any damage caused or losses suffered as a result of the customer’s assistance with the installation.
Should Amava Technologies charge the customer any delivery charges, Amava Technologies will quote for this upfront and all deliveries will be payable in full as specified on the quote, before delivery of the goods.
Fees and payment
The customer shall be liable for and shall pay the fees in respect of the goods or services as set out in this clause or in the applicable orders for the term of the agreement.
Fees are payable in South African Rand without deduction or set-off for any reason and each order will constitute a separate agreement between the parties.
Unless otherwise agreed in the order, the customer shall have the option to pay via EFT or debit order authorisation. Should the customer choose to pay by EFT, Amava Technologies shall have the right to request the customer to sign a debit order authorisation in the event of a customer failing two or more times to pay within 3 days after the due date. Should the customer refuse to sign this debit order authorisation, Amava Technologies will be entitled to cancel the agreement without any prejudice to any other rights in law or contractually.
The customer agrees to Amava Technologies rendering electronic invoices.
Unless otherwise agreed in the order, all monthly fees payable for services shall be invoiced by Amava Technologies monthly in advance and are due on or around the 1st day of each month.
Amava Technologies may invoice pro-rata portions of monthly fees for services where an agreement commences on a day other than the first of the month.
Any services supplied on a times and materials basis, as indicated in the order, shall be billed monthly in arrears and shall be payable within 30 days from statement.
The customer may not withhold payment of any amount due to Amava Technologies for any reason, including an alleged breach of contract by Amava Technologies.
Should any amount invoiced be disputed, the customer shall not be entitled to withhold any such amount pending resolution of the dispute and any dispute will be referred to arbitration in accordance with the “General” clause.
Fees and charges not settled in terms of the agreement will bear interest at the prime rate of
Standard Bank Limited, such interest to be calculated from the due date of payment to the date of actual payment, both days inclusive, calculated daily and compounded monthly in arrears.
The prime rate as certified by any manager of Standard Bank Limited will apply and the manager’s appointment and authority shall not need to be proved.
The customer shall reimburse all reasonable expenses authorized by customer and as are properly incurred by Amava Technologies and Amava Technologies’ personnel in fulfilling Amava Technologies’ obligations in terms of the agreement, including but not limited to goods and services purchased on the customer’s behalf, communications, stationery, report and presentation material, travelling and subsistence expenses as invoiced. Customer will not withhold authorization unreasonably.
Subject to “Fixed Charges” clause, the monthly fees and charges set out in each of the applicable service orders shall be fixed for the duration of the contract term.
Amava Technologies shall be entitled to adjust the monthly fees and charges in the event of any regulatory, or government imposed factors impact on such fees and charges.
Amava Technologies shall be entitled to review the monthly fees and charges for Session Initial Protocol (SIP), and other Telco voice carrier-class services from time to time and will provide the customer with thirty day (30) days written notice to effect any fee adjustments as may be applicable.
Amava Technologies shall institute all reasonable security measures to safeguard the premises and system.
The customer must follow all Amava Technologies’ security instructions, including but not limited to advise Amava Technologies in writing of any security violation or imminent violation and indemnifies Amava Technologies against any loss, harm or damage suffered by Amava Technologies, including third party claims, arising out of any breach of security caused by the acts or omissions of the customer or its personnel.
In the event of a security violation, or if Amava Technologies, in its sole discretion, determines that a security violation is imminent, Amava Technologies may take whatever steps it deems necessary to protect its system and/or the premises, including without limitation:
- Changing the customers’ access codes and passwords;
- Temporarily preventing access to the customer’s account or system;
- Preventing access to the system and/or premises;
- Relocating the customer’s site.
The customer shall give reasonable cooperation in any investigation that may be carried out by Amava Technologies relating to a security violation.
It is the customer’s responsibility to ensure that it keeps all information relating to its account secure. Amava Technologies will respond to all customer activity until such time as a customer has informed Amava Technologies of a security violation and Amava Technologies will not be liable for any damages caused to the customer in this regard.
Access to premises
Depending on the service, Amava Technologies may grant the customer and its personnel access to the premises for purposes of the service.
The customer shall take all reasonable steps to ensure that no unlawful access is granted to the premises.
Amava Technologies shall be entitled to search any person entering or leaving the premises and to inspect any accompanying goods.
When accessing the premises or site, the customer shall keep and maintain the premises and site tidy and return it in the same state received.
Intellectual Property Rights
Unless otherwise agreed, nothing in the agreement will be construed as assignment of any copyright or other transfer of any intellectual property rights.
The customer agrees to defend and hold Amava Technologies harmless from all losses, or liability arising in any way from the customer infringing the intellectual property rights of third party contractors.
The customer agrees to comply with all license or other terms of third party contractors that supply goods or services for use in conjunction with the goods or services provided by Amava Technologies.
Suspension of services
Amava Technologies will be entitled to suspend the service with immediate effect and without notice if:
- The customer has failed to make payment in terms of the agreement after receiving 5 (five) days’ written notice from Amava Technologies;
- The customer has committed any other material breach and failed to rectify it (if it is possible to rectify) within 14 (fourteen) days of receiving written notice from Amava Technologies;
- There is a security violation or imminent security violation of the system or website;
- Emergency maintenance, as determined by Amava Technologies in its sole discretion is required;
- It is necessary to comply with the law;
- It receives a take-down notification from ISPA and the alleged conduct is in
- Contravention of the Amava Technologies Acceptable Use policy.
- Amava Technologies will be entitled to suspend the service and will endeavour to provide reasonable notice if routine maintenance, repair or the like is required, which maintenance Amava Technologies shall endeavour to perform at times of low traffic volume.
Except as specifically provided for in the agreement, Amava Technologies excludes all warranties, subject at all times to applicable law.
Amava Technologies warrants that it has the infrastructure, capacity and personnel to provide the service in a workmanlike manner and in accordance with acceptable industry standards.
The services are provided “as is” and “as available” and without any further express or implied warranty of any kind, including warranties of fitness for purpose, non-infringement, non- compliance with legislation in the applicable jurisdiction.
Subject to “Exclusion and limitation of liability” clause Amava Technologies will not be liable for any loss or damage whatsoever and the customer indemnifies Amava Technologies against such loss or damage that the customer may suffer as a result of the customer’s use of the services, fault, down-time, or outages of the goods or services or viruses, or security violations, howsoever arising and whether arising out of any problems with the services attributable to Amava Technologies or any electronic communications network services or another third party contractor of electronic communications services, or for any other reason.
The customer further indemnifies Amava Technologies against any claim resulting from:
- The use of the customer’s data by a third party;
- The loss of the customer’s data;
- Any non-compliance or breach with the agreement.
Notwithstanding the above, nothing in this agreement and/or any order, service order or acceptable use policy shall exclude or in any way limit Amava Technologies’ liability for gross negligence or wilful misconduct
Exclusion and limitation of liability
Amava Technologies excludes all liability howsoever caused as a result of any use of third party contractor’s goods or services.
Unless the law provides otherwise, Amava Technologies shall under no circumstances be liable for any special, indirect, consequential, economic or like damages which may arise pursuant to this agreement (or any act or omission arising during the course and scope of fulfilling its obligations in terms of this agreement), including, without limitation, any damages arising due to any loss of profits or loss of business.
Subject to applicable law, Amava Technologies will only be liable for direct damages and the maximum total liability for direct damages as a result of breach of this agreement will in all circumstances be the monthly service fee (if any) paid by the customer for the last 2 months as set out in the relevant service order, prior to cancellation of the agreement. This maximum amount shall be an aggregate amount for all claims arising out of the causes mentioned.
The parties agree to treat all confidential information of the other party that is normally regarded as confidential information or not ordinarily available to the public as confidential for the period of the agreement as well as after termination of the agreement.
Termination and breach
Unless a fixed term is specified in the order, either party may cancel the agreement on three (3) months’ notice.
If the customer commits a material breach of the agreement, Amava Technologies may without any prejudice to any other rights afforded in terms of the law:
- Terminate and/or suspend the customer’s access or use of the service with immediate effect;
- Claim immediate payment of all outstanding fees and charges and future fees and charges due in terms of the agreement which fees and charged will become due and payable on demand.
- Customer may without any prejudice to any other rights afforded in terms of the law and with no penalties terminate the agreement with immediate effect if;
- Amava Technologies does not supply the services despite 14-days written notice from the customer to supply the service.
- Amava Technologies commits any material breach of the agreement and fails to rectify it on fourteen (14) days written notice.
Subject to the “Termination and breach” clause should either party fail to comply with any of its obligations or commit a breach of the agreement and fail to remedy such default or breach within fourteen (14) days after having received a written notice to do so, or be placed in provisional or final liquidation, or judicial management, or enter into any compromise or scheme of arrangement with its creditors, or fail to satisfy a judgment taken against it within ten (10) days, the other party shall be entitled to terminate this agreement on written notice to the defaulting party.
Subject to no outstanding payments being due to Amava Technologies, Amava Technologies will upon termination of the agreement render such reasonable assistance to the customer so as to enable the customer to migrate any services affected by such termination to a service provider of the customer’s choice.
Neither party shall be liable for any delay in performing or any failure to perform any obligations under this agreement due to any cause beyond their reasonable control, including but without being limited to any of the following: 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; any act or policy of any state or government or other authority having jurisdiction over either party, sanctions, boycott or embargo, failure of any supplier of electricity, including ESKOM, telecommunication infrastructure or services, including TELKOM or any similar circumstances beyond the reasonable control of Amava Technologies.
Upon the occurrence of any delay or failure referred to in this clause the provisions of this agreement affected shall be suspended for as long as the cause in question continues to operate, provided that if that cause has not ceased to operate within 2 (two) months from when it first arose, this agreement may be terminated by either party on written notice to the other.
The parties will make every effort to cooperate and agree on matters covered by or arising from this agreement, and to fairly and quickly resolve any disputes between them arising from this agreement. Any dispute regarding the calculation of quantum of any payment shall be referred to an independent accountant to be agreed upon, failing which the South African Institute of Chartered Accountants will appoint someone. The accountant shall act as an expert and not as an arbitrator and will be requested to give his decision as soon as reasonably possible, alternatively within 10 business days after the dispute has been referred. The accountant’s finding shall be final and binding and the relevant party will pay the amounts due within 7 days of the decision being made.
If any other dispute cannot be resolved by the parties themselves within fourteen (14) days of being declared by one of the parties in writing that dispute be submitted to and decided by arbitration.
Such arbitration shall be held:
- At Pretoria or at such other place as the parties may agree;
- Subject to any direction by the arbitrator, in an informal manner without any pleadings or
- Discovery of documents and without it being necessary to observe the strict rules of evidence;
- As soon as possible with a view to it being completed within 1 (one) month of the date on which the dispute is referred to arbitration; and
- Subject to anything contrary in this the “Dispute resolution” clause, in accordance with the provisions of the Arbitration Act 42 of 1965.
The arbitrator shall be agreed upon between the parties in writing. In the event of the parties failing to reach agreement as to the arbitrator within 5 (five) days after the arbitration has been demanded, the arbitrator shall be appointed by the Arbitration Foundation of Southern Africa.
- Shall decide the dispute submitted to him expeditiously and, if possible, within one (1) month after the submission thereof to him;
- May call for whatever representations, evidence or arguments from the parties which he may consider appropriate in the circumstances;
- May consult with other professionals or experts in any relevant field as he in his sole discretion may deem necessary to enable him to arrive at a just decision, although nothing in this clause shall preclude him from relying on his own expertise and/or experience;
- Shall decide in his sole discretion on what proportions in which the parties are responsible for all charges, costs and expenses incurred in resolving the dispute and as to whether, at what rate, and to what period a party may be entitled to interest. In this regard, the arbitrator may take into account any travel and other expenses incurred by any party who is required to travel to the arbitration hearing; and
- Shall give his decision in writing.
The parties hereby irrevocably agree that the decision of the arbitrator in any such arbitration shall be final and binding upon them. In the event of a party failing to comply with such decision the other party shall be entitled to institute legal proceedings for the enforcement of that decision.
This clause is separate from the rest of the agreement and will remain effective between the parties if this agreement is terminated.
The a foregoing shall not restrict the right of either party to apply to a competent court for relief of an urgent nature or should its intellectual property rights be violated or threatened, and the parties consent to the jurisdiction of the Western Cape High Court of South Africa for such purposes.
Nothing in this agreement will constitute any relationship of employment, subcontract or partnership and neither party will be able to bind the other party contractually.
The parties choose as domicilium citandi et executandi the address stipulated in the order.
This agreement will be regulated and interpreted in accordance with the laws of South Africa.
A party may only assign its rights and obligations under this agreement to a third party with the written consent of the other party.
This agreement constitutes the entire agreement between the parties and no variation will be of any effect unless agreed to in writing and signed by both parties. Signature for purposes of this clause does not include an electronic signature as provided for in the ECT Act.