The Legal Stuff
1.
INTERPRETATION
1.1.
“AGREEMENT" means this agreement duly entered into between the Sub-scriber and Wiza Solutions PTY
(LTD t/a WIZA which establishes the terms and conditions under which WIZA
Solutions will provide Services to the Subscriber.
1.2.
“WIZA”/“SERVICE
PROVIDER" means Wiza Solutions (Pty) Ltd, a company incorporated in
the Republic of South Africa
1.3.
“CHARGES" means the connection charges, monthly
service charges, usage charges and any other charges pertaining to the
provision of the Services and any other services provided to the Subscriber in
terms of this Agreement or otherwise by notice from time to time.
1.4.
“CONNECTION DATE / ACTIVATION" means the date on
which the Services commence.
1.5.
“COVERAGE AREA" means the
physical geographic area within which the Services are provided by WIZA.
1.6.
“CPE" means Customer Premises Equipment,
including the antennas and communication equipment installed at a Subscribers
Premises to send and / or receive a signal and may includeany
other special equipment provided by the Service Provider to facilitate any
future enhanced services tothe Subscriber.
1.7.
“INITIAL TERM" means the contract period as
indicated on the face of this Agreement, commencing on the Connection Date.
1.8.
“NETWORK OPERATOR" refers to WIZA,
Neotel, MTN Business, IS, Telkom, Vodacom, MTN and/or all other data and voice
carriers that WIZA interconnects with.
1.9.
“PREMISES" means the installation address as
defined on the face of this Agreement.
1.10.
“SERVICES" collectively means WIZA services,
which include ancillary services related thereto which are selected and agreed
upon by the Subscriber in the signed Agreement.
1.11.
“SUBSCRIBER" is the Company, Close Corporation,
Firm, Partnership, Body Corporate or Persons contracting to receive the
Services from WIZA in terms of this Agreement.
2.
APPOINTMENT AND TERM
2.1.
With effect from the date of acceptance hereof by WIZA,
the Customer appoints WIZA to provide the Services.
2.2.
The Subscriber acknowledges that this Agreement
constitutes an irrevocable offer by the Subscriber, which
2.3.
may be accepted or refused by Wiza in its sole discretion.
The offer will be considered once received by WIZA
2.4.
at WIZA premises. Connection of the Subscriber shall be
deemed to constitute commencement of the Services.
2.5.
This Agreement shall become binding between WIZA and the Subscriber once signed by WIZA.
2.6.
This Agreement shall continue for the full duration of the
contract term and thereafter continue on a
2.7.
month-to-month basis until notice of termination is given
or received by either party. All terms under
2.8.
Clause 17 will apply.
3.
THE WIZA SERVICES
3.1.
The Services are to include the routing of voice and/or
data traffic over the WIZA network:
3.2.
Voice constitutes all national, international and mobile
voice or data calls routed through the WIZA network.
3.3.
Data constitutes packets of data routed or managed via
Mobile, Fixed-line or Wireless circuits across or
3.4.
through the WIZA network.
3.5.
The worldwide web "www" is not secure, and we
recommend that Subscribers implement all the necessary firewalls and software
protection.
3.6.
The Subscriber shall have no claim of whatsoever nature
and howsoever rising against WIZA, its service providers or partners, including
no right to cancel this Agreement or to withhold payment of any monies due in
terms hereof should the network temporarily or otherwise fail, malfunction,
provide no or poor coverage or should any of the services or facilities
provided by the Network Operators, Eskom or WIZA be temporarily unavailable.
3.7.
WIZA is exempted from all liability for any loss or damage
(whether direct or consequential) and/or for any costs, claims or demands of
any nature to the Subscriber and/or any third party arising from such
suspension, due to repairs and/or improvement work on the technical
infrastructure by means of which the Services are provided. WIZA shall endeavour to give the Subscriber prior notice of any such
increases or variation, but gives no undertaking in thisregard.
3.8.
The Subscriber shall not be entitled to set off or deduct
any monies in respect of "dropped" or connections or temporarily
unavailable services including facsimile and other services. WIZA does not make
any representations, nor give any warranty or guarantee of any nature
whatsoever in respect of the Services.
3.9.
All data services are "best effort"
and no download speeds are guaranteed unless client subscribes to dedicated 1:1
service.
3.10.
WIZA does not warrant or guarantee that the information
transmitted by the use of the Services will be
preserved or sustained in its entirety, will be suitable for any intended
purpose, will be free of inaccuracies or defects or bugs or viruses of any
kind, and will not contravene the laws of a particular country.
3.11.
WIZA shall be entitled in its sole discretion to suspend,
cancel, vary or terminate this Agreement or any part thereof, without Wiza
incurring any liability whatsoever, in the event of non-availability of the
Services or if any agreement giving WIZA access to anything relating to the
Service, is suspended, cancelled, varied or terminated.
3.12.
Any request by the Subscriber to migrate from one package
to another will be subject to the discretion and approval of WIZA and any
migration charges where applicable, will be as per the applicable WIZA tariff
plan.
3.13.
WIZA reserves the right to carry out a credit check against
the Subscriber prior to acceptance of this Agreement and subsequent to carrying
out of such credit check may request from the Subscriber a cash deposit or bank
guarantee in a form to be approved by WIZA and issued by a bank acceptable to
it or such form of security as WIZA may at its sole discretion request,
provided that the total amount of any cash deposit or bank guarantee shall not
exceed the total Charges which WIZA may reasonably expect the Subscriber to
incur during any two (2) full billing cycles.
3.14.
If any unpaid charges incurred by the Subscriber
(including Charges which have accrued but have not yet been invoiced) shall at
any time exceed the amount of any initial deposit or bank guarantee provided by
the Subscriber to WIZA in terms of clause 5, WIZA may request an additional
amount by way of cash deposit or bank guarantee in a form to be approved by
WIZA and issued by a bank acceptable to it or such form of security as WIZA may
at its sole discretion request, provided that the total amount of any cash
deposit or bank guarantee shall not exceed the total Charges which WIZA may
reasonably expect the Subscriber to incur during any two (2) full billing
cycles.
3.15.
The Subscriber acknowledges that any failure by it to
comply with any request made by WIZA under Clause 3.10 shall constitute a
material breach under this Agreement, which is not capable of remedy.
4.
SUPPLY AND USE OF CPE AND SERVICES
4.1.
The Subscriber shall be responsible for obtaining all
necessary approvals and authorisations from any
competent authority or body and required for the purpose of any such supply
and/or delivery and/or installation and the Subscriber hereby indemnifies WIZA
against any claim or liability suffered by WIZA by reason of such approval and authorisation not having been obtained.
4.2.
The Subscriber hereby warrants and undertakes in favour of WIZA that the Subscriber:
4.3.
Shall not use nor allow the Services to be used for any
improper, immoral or unlawful purpose, nor in any way which may cause injury or
damage to persons or property or an impairment or interruption to the Services.
5.
CHARGES
5.1.
The Subscriber shall pay to WIZA:
5.2.
Upon signed acceptance of the Services, the initial
installation fee and all other introductory and hardware costs; or
5.3.
Commencement charges stipulated in this Agreement; and
5.4.
In the case of the monthly Service fees, payment for the
first month to be pro-rated if applicable Arrears as and when monthly billing
is passed on by the Network Operators, the total charges for the Services used
and/or generated by the Subscriber during each billing period and any other
charges payable in respect of the Services requested by the Subscriber or other
charges levied by WIZA from time to time; and The Charges payable by the
Subscriber to WIZA for the provision or facilitation of the Services shall be
stipulated in any notice, directive, promotion or applicable tariff plan issued
or derived by WIZA from time to time and the contents of such notice, directive
promotion or tariff plan including the charges and provisions stipulated therein
shall be deemed to be incorporated in this Agreement as if specifically set out
herein.
5.5.
The Subscriber agrees that WIZA shall be entitled from
time to time to increase or vary the Charges payable (as dictated by the
networks or by extreme currency fluctuations) by the Subscriber to WIZA for the
Services.
5.6.
WIZA shall endeavour to give the
Subscriber prior notice of any such increases or variation,
but gives no undertaking in this regard.
5.7.
WIZA’s monthly statement of Charges shall be prima facie
proof of the amounts owed by the Subscriber to WIZA in terms hereof and of the
other facts stated herein and should the Subscriber dispute the number,
duration or amount charged in respect of any services rendered by WIZA, then
the Subscriber shall bear the onus of proving that WIZA statement is incorrect
in such respect.
6.
PAYMENT TERMS
6.1.
Should the Subscriber send any monies, cheques, orders or
bills by means of the postal services, then the postal authority shall be
deemed to be the agent of the Subscriber and the Subscriber shall bear all risk
of loss, theft and delay in and to any such monies, cheques, orders or bills
sent by post and without derogating from what is stated herein, the Subscriber
shall draw all cheques, postal orders and bills payable to WIZA Solutions and
marked "not transferable".
6.2.
The Subscriber agrees that payment shall only have been
made to WIZA when the monies remitted by the Subscriber have been received into
the WIZA bank account.
6.3.
Should any stop order or debit order payment be returned
unpaid or stopped, for whatsoever reason, or should WIZA exercise its right to
suspend the provision of the Services due to late or non-payment of any monies
due in terms hereof by the Subscriber, then the Subscriber shall pay an
administration charge of at least R200, as may be levied by WIZA from time to
time for each such non-payment, suspension or any other breach of this
Agreement which amount shall be liable upon demand and recoverable by WIZA.
6.4.
In the case of the monthly Service fees, payment for the
first month to be pro-rated for the remaining of the month. Subsequent payments
to be made monthly in advance on or before the fifth (5th) day of every month,
or as per the debit order run date. Non-receipt of invoices by the Subscriber
will not be considered as a valid basis for late or non-payment.
7.
LIABILITY
7.1.
The Subscriber agrees and acknowledges that a certificate
given under the hand of a financial manager or controller of WIZA whose status
and authority need not be proved shall be considered prima facie proof of the
amount due and shall entitle WIZA to apply for judgement against the Subscriber
and to obtain summary judgement or provisional sentence, as the case maybe.
8.
LIMITATION OF LIABILITY
8.1.
The Subscriber hereby indemnifies WIZA and holds Wiza
harmless against any claim by any third party arising directly or indirectly
out of the Subscriber’s access to or use of the Services or information
obtained through the use of it, including without
limitation of any claim due to the use of the Services for unlawful purposes.
8.2.
WIZA shall not be liable for any loss or damages arising
out of mistakes, omissions, interruptions, delays, errors or defects in the
Services, the transmission of the Services, or failures or defects in
facilities furnished by WIZA, occurring in the course of furnishing Services,
and liability shall in no event exceed an amount equivalent to the
proportionate fixed monthly charge to WIZA for Services, during the period of
time in which such mistakes, omissions, interruptions, delays, errors or
defects in the Services, its transmission or failure or defect in facilities
furnished by WIZA occurred.
8.3.
The Subscriber must pay WIZA for the replacement or repair
of damage to WIZA equipment or facilities caused by the negligence or wilful act of the Subscriber or users; improper use of
Services; or any use of WIZA equipment or Services provided by others.
8.4.
The Subscriber is liable for all Services subscribed for
in this Agreement, once the Services have been installed and activated.
8.5.
WIZA shall not be liable in respect of any warranties
and/or representations of any nature whatsoever given or made by the salesman
or selling agents who have no authority to bind the company in any respect
whatsoever.
9.
BREACH
9.1.
If the Subscriber:
9.2.
fails to pay any amount under this Agreement on the due
date, then WIZA shall be entitled without prejudice to any of its other rights
arising out of this Agreement forthwith and without any liability towards the
Subscriber, to suspend its provision to the Subscriber of the Services in whole
or in part and/or disconnect the Subscriber from the network and/or to render
the CPE inoperable by whatever means.
9.3.
terminates the contract before the specified date of
termination for breach of contract, it will result in the Subscriber being
liable for the full payment of the remaining subscription or hardware fees for
the applicable term signed upon in the terms of this Agreement.
9.4.
WIZA has the right to terminate this Agreement without
prejudice to any other right WIZA may have in terms of this Agreement or at law; if the Subscriber:
9.4.1.
fails to pay the monthly Services and other Charges in
terms of this Agreement on the due date
9.4.2.
breaches any provision of this Agreement, all of which are
deemed to be material, and fails to remedy the breach within seven (7) days
after the dispatch of a registered, hand delivered or faxed letter by WIZA
calling on the Subscriber to remedy the breach;
9.4.3.
commits an act of insolvency in terms of an act of the
Republic of South Africa;
9.4.4.
is a company or close corporation and is deregistered or
liquidated or in the case of a company placed under judicial management,
whether provisionally or finally;
9.4.5.
is a natural person and he or any one of his partners is
provisionally or finally sequestrated, or he or any one of his partners becomes
subject to an administration order;
9.4.6.
ceases its business activities for longer than a period of
sixty (60) consecutive days, unless forced to do so by force majeure; or
9.4.6.1.
Gives WIZA notice of the termination of its surety ship
for any surety in favour of WIZA for the payment of
the Services in termshereof.
9.4.6.2.
WIZA shall be entitled to recover all legal expenses,
including legal expenses (on an attorney-and-own client scale) incurred and
arising directly or indirectly out of this Agreement.
9.4.6.3.
The Subscriber agrees that interest shall be payable on
any monies due to WIZA at the maximum legal interest rate prescribed in terms
of the Usury Act from the date they fall due. Interest shall be compounded
monthly in arrears.
10.
DOMICILIUM AND NOTICES
10.1.
The Subscriber and WIZA hereby choose domicilium
citandi et executandi for
all purposes of and in connection with this Agreement at the physical address,
e-mail and fax as set forth on the face hereof. WIZA shall be entitled to give
any notice in terms of this Agreement by e-mail and or fax.
11.
WHOLE AGREEMENT
11.1.
This Agreement constitutes the sole record of the
agreement between the parties in regard to the subject
matter thereof. Neither party shall be bound by any representation, express nor
implied term, promise or the like not recorded herein or reduced to writing and
signed by the parties or their representatives. No addition or variation of
this Agreement shall be of any force or effect unless in writing and signed by
or on behalf of the parties. No indulgence that WIZA may grant to the
Subscriber shall constitute a waiver of any of WIZA rights.
11.2.
In this Agreement the singular shall include the plural.
12.
SEVERABILITY
12.1.
Should any provision of this Agreement be rendered
unlawful, then that unlawful provision only shall be invalid, without effecting
or invalidating any of the remaining provisions of this Agreement which shall
continue to be of full force andeffect.
13.
WARRANTIES
13.1.
Save as expressly set out in this Agreement, WIZA does not
make any representations nor gives any warranties or guarantees of any nature
whatsoever in respect of WIZA equipment or Services and all warranties which
are implied or residual at common law are hereby expressly excluded.
13.2.
Without limitation to the generality of Clause 13.1, WIZA
does not warrant or guarantee that the information transmitted by or available
to the Subscriber by way of the Services or WIZA equipment:
13.3.
will be preserved or sustained in their entirety;
13.4.
will be suitable for anypurposes;
13.5.
will be free of inaccuracies, defects, bugs or viruses of
any kind; and
13.6.
WIZA assumes no liability, responsibility or obligations in regard to any of the exclulsions
set forth in Clauses 13.1 and 13.2 above.
14. GENERAL
14.1.
WIZA is entitled to cede its rights and/or to delegate its
obligations arising from this Agreement and/or assign this Agreement, wholly or
partly, to any third party. The Subscriber shall not be entitled to cede or
delegate his rights and obligations arising out of this contract, unless
accepted in writing by the credit control manager or a director of WIZA.
14.2.
The Subscriber warrants the accuracy of all information
furnished by or on behalf of the Subscriber in terms of or pursuant to this
Agreement. The Subscriber shall forthwith notify WIZA in writing of any changes
from time to time in the information set out on the face hereof.
14.3.
The Subscriber undertakes to abide by WIZA acceptable use
policy.
14.4.
The Subscriber understands that any equipment supplied by
WIZA and not directly purchased outright by the Subscriber, will remain the
property of WIZA and should be returned upon Termination of contract; this
includes all CPE.
15.
JURISDICTION
15.1.
The parties consent, in terms of
Section 45 of Magistrates Court Act 32 of 1944, to the jurisdiction of the Magistrates
Court or any district having jurisdiction overt it by virtue of Section 28(1)
of the said Act, in respect of any action or legal proceedings in connection
with this Agreement, notwith-standing the fact that
the amount involved in such action or proceeding may be beyond the jurisdiction
of a Magistrates Court.
15.2.
WIZA however reserves the right to institute action or
proceedings in the High Court.
16.
FORCE MAJEURE
16.1.
If WIZA is prevented from or restricted directly or
indirectly from carrying out all or any of its obligations under this Agreement
due to any reason or cause beyond the control of WIZA or by reason of force
majeure, WIZA shall be relieved of its obligations in terms of this Agreement
during such period.
17.
CANCELLATION & TERMINATION
17.1.
All agreements carry a 30-day, calendar month cancellation
notice period. The Subscriber is required to notify WIZA 30 days prior to
cancellation of any services via email to support@getwiza.com at which time
WIZA will notify the Subscriber of any outstanding fees or other fees which may
be applicable as outlined in 17.2.
17.2.
Should the Subscriber cancel within the first 12 months of
Activation, the Subscriber will be liable to pay in full the once-off fees
absorbed by WIZA upon Subscriber Activation. Once-off fees are network specific
and are communicated by WIZA and agreed to by the Subscriber at the time of
sign up along with the Service pricing.
PRIVACY POLICY
INTRODUCTION
• As a business that facilitates access to the Internet or
related services, we deeply recognize the significance of our customers’
privacy while they are online and interacting with our services.
• The purpose of this Privacy Policy is to ensure that our
customers have a clear understanding of how their personal information is
collected, stored, and handled in accordance with the relevant laws.
WHAT IS
CONSIDERED PERSONAL INFORMATION?
• According to the Protection of Personal Information Act of
2013, "personal information" encompasses the following:
– Information related to an identifiable,
living individual, and when applicable, an identifiable, existing legal entity,
including but not limited to:
– Information regarding the person’s race,
gender, sex, pregnancy, marital status, national, ethnic or social origin,
color, sexual orientation, age, physical or mental health, well-being,
disability, religion, conscience, belief, culture, language, and birth.
– Information pertaining to the person’s
education, medical, financial, criminal, or employment history.
– Any identifying number, symbol, email
address, physical address, telephone number, location information, online
identifier, or other specific assignment to the person.
– Biometric information of the person.
– Personal opinions, views, or preferences
of the person.
– Correspondence sent by the person that is
implicitly or explicitly private or confidential, or subsequent correspondence
that reveals the contents of the original communication.
– Views or opinions of another individual
about the person.
– The person’s name if it appears with other
personal information related to the person or if the disclosure of the name
itself would reveal information about the person.
OUR COMMITMENT
• We are committed to ensuring the confidentiality of our
customers’ personal information.
• Personal information in our possession will be used solely
for the purpose for which it was collected or as required by applicable laws.
• Personal information is collected to facilitate the provision
of our services and to comply with the Regulation of Interception of
Communications and Provision of Communication-related Information Act of 2002
("RICA").
• We will only disclose customer personal information under the
following circumstances:
– With the customer’s written instruction.
– When required to do so by an order of a
South African court.
– When placing an order with the customer’s
chosen Fibre Network Operator (FNO), we will provide the FNO with the
customer’s contact details and service address for service provisioning.
– When necessary to comply with applicable
legislation or regulation, as specified by such legislation or regulation.
– For auditing, debt collection, or
complaints handling processes, subject to restrictions on the use of personal
information by the relevant third party.
• We do not monitor the usage of our services except as
required by applicable law.
• Our website may use "cookies" to track usage and
provide individually-tailored services.
• Personal information provided for the use of our service is
securely stored. To obtain a copy or review your Service Agreement email,
please email connect@getwiza.com.
• To ensure a secure service and protect against fraudulent and
criminal acts, we reserve the right to monitor user and network traffic.
COLLECTION OF
ANONYMOUS DATA
• In order to provide the best and most relevant service, we
may use standard technology to collect information about the usage of this site
and our services. This technology cannot identify individual users but allows
for the collection of anonymized statistics.
• To accomplish this, we utilize cookies, which are small files
placed on your hard drive to record your interactions with this website.
• Cookies enable us to tailor advertising and other services to
your preferences. We may use third-party cookies from an ad server for this
purpose.
• Cookies alone are not used to personally identify users but
are used to compile anonymized statistics on the use of offered services or
provide feedback on the performance of this website.
• If you do not wish to accept cookies, you can adjust your
browser settings accordingly. However, please note that certain services on
this website may not be available if cookies are disabled.
SHARED
RESPONSIBILITY
• Protecting your personal information when using our services
is a shared responsibility. Please be aware that the Internet can be a
potentially dangerous and unfriendly environment, so it is important to safeguard your identity and personal information at all times.
AMENDMENTS TO
THIS POLICY
• If any changes to this Privacy Policy are necessary, we will
prominently notify you or send an email to ensure that you are informed about
the changes and their potential impact on you.
• For any queries or matters related to this Privacy Policy,
please email connect@getwiza.com.
1. GENERAL
1.1.
By contracting with Wiza Solutions for
services, the Client agrees, without limitation or qualification, to be bound
by this Policy and the terms and conditions it contains, as well as any other
additional terms, conditions, rules or policies which are displayed to the
Client in connection with the Services.
1.2. The
purpose of this AUP is to:
1.2.1. ensure compliance with the relevant laws of
the Republic;
1.2.2. specify to Clients and users of Wiza Solutions’s service what activities and online behaviour
are considered an unacceptable use of the service;
1.2.3. protect the integrity of Wiza Solutions’s network; and
1.2.4. specify the consequences that may flow from
undertaking such prohibited activities.
1.3. This
document contains a number of legal obligations which
the Client will be presumed to be familiar with. As such, Wiza Solutions
encourages the Client to read this document thoroughly and direct any queries
to aup@getwiza.com
1.4. Wiza
Solutions respects the rights of Wiza Solutions’s
Clients and users of Wiza Solutions’s services to
freedom of speech and expression, access to information, privacy, human
dignity, religion, belief and opinion.
2. UNACCEPTABLE USE
2.1. Wiza Solutions’s services may only be used for lawful purposes
and activities. Wiza Solutions prohibits any use of its Services including the
transmission, storage and distribution of any material or content using Wiza Solutions’s network that violates any law or regulation of
the Republic. This includes, but is not limited to:
2.1.1. Any
violation of local and international laws prohibiting child pornography,
obscenity, discrimination (including racial, gender or religious slurs) and
hate speech, or speech designed to incite violence or hatred, or threats to
cause bodily harm.
2.1.2. Any
activity designed to defame, abuse, stalk, harass or physically threaten any
individual in the Republic or beyond its borders; including any attempt to link
to, post, transmit or otherwise distribute any inappropriate or defamatory
material.
2.1.3. Any
violation of Intellectual Property laws including materials protected by local
and international copyright, trademarks and trade secrets.
2.1.4. Any
violation of another’s right to privacy, including any effort to collect
personal data of third parties without their consent.
2.1.5. Any
fraudulent activity whatsoever, including dubious financial practices, such as
pyramid schemes; the impersonation of another client without their consent; or
any attempt to enter into a transaction with Wiza
Solutions on behalf of another client without their consent.
2.1.6. Any
violation of the exchange control laws of the Republic.
2.1.7. Any
activity that results in the sale, transmission or distribution of pirated or
illegal software.
3. THREATS TO NETWORK SECURITY
3.1. Any
activity which threatens the functioning, security and/or integrity of Wiza Solutions’s network is unacceptable. This includes:
3.1.1. Any efforts to attempt to gain unlawful and
unauthorised access to the network or circumvent any of the security measures established
by Wiza Solutions for this goal.
3.1.2. Any effort to use Wiza Solutions’s
equipment to circumvent the user authentication or security of any host,
network or account ("cracking" or "hacking").
3.1.3. Forging of any TCP/IP packet headers
(spoofing) or any part of the headers of an email or a newsgroup posting.
3.1.4. Any effort to breach or attempt to breach the
security of another user or attempt to gain access to any other person’s
computer, software, or data without the knowledge and consent of such person.
3.1.5. Any activity which threatens to disrupt the
service offered by Wiza Solutions through "denial of service
attacks"; flooding of a network, or overloading a
service or any unauthorised probes ("scanning" or "nuking")
of others’ networks.
3.1.6. Any activity which in any way threatens the
security of the network by knowingly posting, transmitting, linking to or
otherwise distributing any information or software which contains a virus,
trojan horse, worm, malware, botnet or other harmful, destructive or disruptive
component.
3.1.7. Any unauthorised monitoring of data or traffic
on the network without Wiza Solutions’ explicit, written consent.
3.1.8. Running services and applications with known
vulnerabilities and weaknesses, e.g. insufficient
anti-automation attacks, any traffic amplification attacks, including recursive
DNS attacks, SMTP relay attacks.
3.1.9. Failing to respond adequately to a denial of service attack (DOS / DDOS).
4. UNCAPPED FIBRE
4.1. Uncapped
Fibre Services are intended for home and personal use. Reselling services or
use of home services for business purposes are prohibited.
4.2. Uncapped
Fibre may not be used to provide or resell services to other individuals, and
this is prohibited in the following scenarios (but not limited):
4.2.1. Wireless Internet Service Provision
4.2.2. Hosting
Shell Accounts
4.2.3. Providing
email, news, download, VPN or sandbox services
4.2.4. Running
of home servers or private servers
4.2.5. Provision
of network services to others
4.2.6. Running
private servers for mail, HTTP, FTP, IRC and multi-user forums
4.3. Services
may not be shared or resold
5. SPAM AND UNSOLICITED BULK MAIL
5.1. Wiza
Solutions regards all unsolicited bulk email (whether commercial in nature or
not) as spam, with the following exceptions:
5.1.1. Mail sent by one party to another where there
is already a prior relationship between the two parties and the subject matter
of the message(s) concerns that relationship;
5.1.2. Mail sent by one party to another with the
explicit consent of the receiving party.
5.1.3. Clients should only receive bulk mail that
they have requested and/or consented to receive and/or which they would expect
to receive as a result of an existing relationship.
5.2. Wiza
Solutions will take swift and firm action against any user engaging in any of
the following unacceptable practices:
5.2.1. Sending unsolicited bulk mail for marketing or
any other purposes (political, religious or commercial) to people who have not
consented to receiving such mail.
5.2.2. Using any part of Wiza Solutions’s
infrastructure for the purpose of unsolicited bulk mail, whether sending,
receiving, bouncing, or facilitating such mail.
5.2.3. Operating or maintaining mailing lists without
the express permission of all recipients listed. In
particular, Wiza Solutions does not permit the sending of
"opt-out" mail, where the recipient must opt out of receiving mail
which they did not request. For all lists, the sender must maintain meaningful
records of when and how each recipient requested mail. Wiza Solutions will also
monitor Clients deemed to be operating “cleaning lists”, which is using
illegally obtained email addresses but removing addresses as complaints arise.
Should Wiza Solutions, at its discretion, believe that this is the case, it
will be treated as SPAM.
5.2.4. Failing to promptly remove from lists invalid
or undeliverable addresses or addresses of unwilling recipients or a recipient
who has indicated s/he wishes to be removed from such list,
or failing to provide the recipient with a facility to opt-out.
5.2.5. Using Wiza Solutions’s
service to collect responses from unsolicited email sent from accounts on other
Internet hosts or e-mail services that violate this AUP or the AUP of any other
Internet service provider. Advertising any facility on Wiza Solutions’s
infrastructure in unsolicited bulk mail (e.g. a
website advertised in spam).
5.2.6. Including Wiza Solutions’s
name in the header or by listing an IP address that belongs to Wiza Solutions
in any unsolicited email whether sent through Wiza Solutions’s
network or not.
5.2.7. Failure to secure a Client’s mail server
against public relay as a protection to themselves and the broader Internet
community. Public relay occurs when a mail server is accessed by a third party
from another domain and utilised to deliver mails, without the authority or
consent of the owner of the mail-server. Mail servers that are unsecured
against public relay often become abused by unscrupulous operators for spam
delivery and upon detection such delivery must be disallowed. Wiza Solutions
reserves the right to examine users’ mail servers to confirm that no mails are
being sent from the mail server through public relay and the results of such
checks can be made available to the user. Wiza Solutions also reserves the
right to examine the mail servers of any users using Wiza Solutions’s
mail servers for "smarthosting" (when the
user relays its mail via an Wiza Solutions mail server to a mail server of its
own or vice versa) or similar services at any time to ensure that the servers
are properly secured against public relay. All relay checks will be done in
strict accordance with Wiza Solutions’s Privacy
Policy and the laws of South Africa.
6. USERS OUTSIDE SOUTH AFRICA
6.1. Where
any user resides outside of the Republic, permanently or temporarily, such user
will be subject to the laws of the country in which s/he is currently resident and which apply to the user. On presentation of a
legal order to do so, or under obligation through an order for mutual foreign
legal assistance, Wiza Solutions will assist foreign law enforcement agencies
(LEAs) in the investigation and prosecution of a crime committed using Wiza Solutions’s resources, including the provisioning of all
personal identifiable data.
7. PROTECTION OF MINORS
7.1. Wiza
Solutions prohibits Clients from using Wiza Solutions’s
service to harm or attempt to harm a minor, including, but not limited to, by
hosting, possessing, disseminating, distributing or transmitting material that
is unlawful, including child pornography and cyber bullying.
7.2. Wiza
Solutions prohibits Clients from using Wiza Solutions’s
service to host sexually explicit or pornographic material of any nature.
8. PRIVACY AND CONFIDENTIALITY
8.1.
Wiza Solutions respects the privacy and
confidentiality of Wiza Solutions’s Clients and users
of Wiza Solutions’s service. Please review Wiza Solutions’s Privacy Policy which details how Wiza
Solutions collects and uses personal information gathered in
the course of operating its Services.
9. USER RESPONSIBILITIES
9.1.
Clients are responsible for any misuse of
Wiza Solutions’s services that occurs through the
Client’s account. It is the Client’s responsibility to ensure that unauthorised
persons do not gain access to or misuse Wiza Solutions’s
service.
9.2. Wiza
Solutions urges Clients not to reply to unsolicited mail or "spam",
not to click on any suggested links provided in the unsolicited mail. Doing so
remains the sole responsibility of the Client and Wiza Solutions cannot be held
liable for the Client being placed on any bulk mailing lists as a result.
9.3. Where
the Client has authorised a minor to use any of the Wiza Solutions’s
services or access its websites, the Client accepts that as the parent/legal
guardian of that minor, the Client is fully responsible for: the online conduct
of such minor, controlling the minor’s access to and use of any services or
websites, and the consequences of any misuse by the minor.
10. ACTION FOLLOWING BREACH OF THE AUP
10.1. Upon
receipt of a complaint, or having become aware of an incident, Wiza Solutions
may, in its sole and reasonably-exercised discretion
take any of the following steps:
10.1.1. In the
case of Clients, warn the Client, suspend the Client account and/or revoke or
cancel the Client’s Service access privileges completely;
10.1.2. In the
case of an abuse emanating from a third party, inform the third party’s network
administrator of the incident and request the network administrator or network
owner to address the incident in terms of this AUP and/or the ISPA Code of
Conduct (if applicable);
10.1.3. In
severe cases suspend access of the third party’s entire network until abuse can
be prevented by appropriate means;
10.1.4. In all
cases, charge the offending parties for administrative costs as well as for
machine and human time lost due to the incident;
10.1.5. Assist
other networks or website administrators in investigating credible suspicions
of any activity listed in this AUP;
10.1.6. Institute
civil or criminal proceedings;
10.1.7. Share
information concerning the incident with other Internet access providers, or
publish the information, and/or make available the users’ details to law
enforcement agencies; and/or
10.1.8. suspend
or terminate the Service as provided for in the Agreement.
1.
DEVICE WARRANTY & RETURNS
1.1.
GetWiza has a
7-day device return policy. Devices can be returned for any reason during this
period. Returned units must be in the same condition as shipped (including all
shipped packaging, parts and accessories) to be
eligible for a refund or exchange. Returns that are incomplete or not in
shipped condition will not be replaced with new units or be only partially
replaced with refurbished or repurposed items.
1.2.
The first return
will be arranged and paid by GetWiza (including collection and delivery of unit
or replacement). Additional exchanges or returns will be for the client’s cost,
and GetWiza will not be liable to reimburse any costs. This will in no way
impact the continued warranty provisions, and only relates to courier charges
and logistics.
1.3.
All
manufacturer’s warranties, for the repair or replacement of faulty units will
be available to the client. The warranty is limited to items covered by the
manufacturer only. The warranty does not cover lightning damage
or any damage deemed to have been caused by the client’s misuse or mistreatment
of the product (including damage due to improper return shipping of the product
for exchange).
1.4.
Repair or
replacement of devices out of warranty will not be facilitated by GetWiza, unless the client is purchasing a new replacement
device. This will also apply to the use of accessories (such as external
antennae) or modifications which are not supported by the manufacturer and
effectively void the warranty.
1.5.
GetWiza reserves
the right to replace a router with a refurbished unit, which will be provided
under existing warranty conditions.
1.6.
Failure to abide
by GetWiza’s policy can result in deductions to the
claimed refund or rejection of claims for refund or exchange.
1.7.
GetWiza will not
be liable for any damage to your router or any other electronic devices
resulting from the incorrect use of PoE (Power over Ethernet) with any UPS that
we stock. Any damage resulting from the incorrect use of PoE will void the
manufacturer’s warranty on your GetWiza router.
EQUIPMENT LEASE AGREEMENT
between:
WIZA SOLUTIONS (PTY) LTD
Registration Number: 2015/182799/07
(“the Lessor”)
and
THE LESSEE
(as recorded in item 1 of the Table below)
(collectively referred to as the “Parties”)
1.1. In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
1.1.1. “Agreement” shall mean this Agreement together with all annexures hereto, which annexures shall be read as if specifically incorporated herein;
1.1.2. “Business Day” shall mean any day of the week, excluding Saturdays, Sundays and official public holidays in the Republic of South Africa;
1.1.3. “Commencement Date” shall mean the date upon which this Agreement comes into effect, being the date recorded in item 2 of the above Table, irrespective of the date of signature of this Agreement by the Parties;
1.1.4. “Deposit” shall mean the deposit amount stipulated in item 6 of the above Table;
1.1.5. “Equipment” shall mean the item as detailed in item 3 of the above Table;
1.1.6. “Lessee” shall mean the Lessee, whose full and further details are set out in item 1 of the above Table;
1.1.7. “Lessor” shall mean Wiza Solutions (Pty) Ltd (Registration Number 2015/182799/07), a company duly registered in terms of the laws of the Republic of South Africa, and having its business address at 41 Basalt Street, Stellenridge, Bellville, 7530, and having email address: connect@getwiza.com;
1.1.8. “Lessor’s Associates” means the Lessor’s directors, officers, servants, agents, contractors or other persons in respect of whose actions the Lessor may be held to be vicariously liable;
1.1.9. “Losses” means all losses (including, but not limited to, those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
1.1.10. “Parties” shall mean the Lessee and the Lessor collectively, and “Party” means any one of them, as the context indicates;
1.1.11. “Permitted Purpose” shall be the purpose for which the Equipment is to be utilised, as recorded in item 7 of the above Table;
1.1.12. “Rental” shall mean the amount paid by the Lessee to the Lessor in terms of item 4 of the above Table in consideration for rental of the Equipment; and
1.1.13. “Term” means the period of 12 (twelve) months commencing on the Commencement Date.
2. INTERPRETATION
2.2. In this Agreement, unless a contrary intention clearly appears:
2.2.1. any reference to the singular includes the plural and vice versa;
2.2.2. any reference to one gender includes the other gender; and
2.2.3. any reference to natural persons includes legal persons and vice versa.
2.3. When any number of days is prescribed, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day.
2.4. Where in this Agreement, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed in ink by the duly authorised representative of such Parties.
2.5. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
2.6. Where words have been defined in the body of the Agreement, such words will, unless otherwise required by the context, have the meanings so assigned throughout the Agreement.
2.7. The rule of construction in terms of which an agreement shall be interpreted against the party responsible for its drafting shall not apply.
2.9. Where an expression has been defined, whether in clause 1 above, or elsewhere, and such definition contains a provision conferring a right or imposing an obligation on any Party, then, notwithstanding that it is contained only in a definition, effect shall be given to that provision as if it were a substantive provision contained in the body of the Agreement.
2.10. Expiration or termination shall not affect such of the provisions of this Agreement which of necessity must continue to have effect after such expiration or termination, notwithstanding that such provision may not expressly provide.
2.11. No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (tipulation alteri) who is not a Party to this Agreement.
3. INTRODUCTION
3.1. The Lessor is the owner of the Equipment, which it desires to lease to the Lessee, with the Lessee being desirous of leasing the Equipment from the Lessor.
3.2. The Parties wish to enter into an Agreement on the terms specified herein relating to the Equipment on the terms as set out in this Agreement.
4. EQUIPMENT
4.1. The Lessor hereby gives the Lessee the full right of use and enjoyment of the Equipment, in return for payment of the Rental, until this Agreement is terminated in accordance with its terms and conditions.
4.2. The Lessor shall retain ownership of the Equipment and the Lessee shall have no claim to ownership of the Equipment whatsoever.
4.3. All risk of loss, damage, destruction or otherwise in and to the Equipment shall pass to the Lessee on delivery of the Equipment to the Lessee until return of the Equipment to the Lessor. The cost of reinstating the Equipment to its pre-delivery condition (fair wear and tear excepted) will be for the account of the Lessee and will be payable upon invoice by the Lessor.
________________________
Lessee to initial confirming
acceptance of the terms of
clauses 4.3, 4.4 and 4.5
4.6. The Lessee acknowledges that during the Term, technology may change, and accordingly the Lessor may, in its sole discretion, replace the Equipment, or any part thereof, with a substantially similar item. In such a situation, item 3 of the above Table shall be updated and amended accordingly.
5. COMMENCEMENT AND DURATION OF THIS AGREEMENT
5.1. This Agreement shall commence on the Commencement Date and shall subsist for the Term or until terminated in accordance with the terms of this Agreement.
5.3. Either Party shall be entitled to terminate this Agreement for any reason or no reason at all by providing the other Party with 20 (twenty) Business Days written notice of termination, and following termination, the Lessee shall immediately return the Equipment to the Lessor in the same condition that the Equipment was in when it was provided to the Lessee (fair wear and tear excepted).
6. DEPOSIT
6.1. The Lessee shall pay the Deposit to the Lessor on or before the Commencement Date and in any event prior to taking possession of the Equipment.
6.2. The Lessor may appropriate the Deposit, or any part thereof, as it deems fit, towards the payment of any amounts for which the Lessee is liable in terms of this Agreement and which are overdue for payment, including amounts arising on, or subsequent to the termination this Agreement, provided that in the event of the Lessor doing so during the period of this Agreement, the Lessee shall be obliged to reinstate the Deposit to its original amount, forthwith.
6.3. The Deposit shall be repaid by the Lessor to the Lessee, less any amounts deducted by the Lessor, including amounts arising on, or subsequent to the termination this Agreement once the Lessee has complied with all its obligations to the Lessor.
7. RENTAL
7.1. Rental shall be paid by the Lessee to the Lessor on a monthly basis, payable in advance, by means of debit order, on or before the date set out in item 5 of the above Table.
7.2. Such Rental shall be payable free of deduction or set-off and the Lessee shall not be entitled to withhold any portion thereof as a result of any claim which the Lessee might enjoy, whilst the Lessee is in possession of the Equipment.
7.3. If any amount due in terms of this Agreement, including Rental, is paid after the due date therefor, the Lessor shall be entitled, but not obliged, to charge interest thereon at the maximum rate of interest applicable to incidental credit agreements (currently 2% (two percent) per month), as published from time to time in the regulations to the National Credit Act, No. 34 of 2005, or the successor to such legislation, from the due date until the date on which payment of such amount has been received by the Lessor in full.
8. RETURN OF THE EQUIPMENT
8.1. At the end of the Agreement, the Lessee shall return the Equipment, at the Lessee’s expense, to an authorised representative of the Lessor.
8.2. In the event of a breach, the Lessor shall immediately upon demand by the Lessor return to the Lessor the Equipment in the same condition (fair wear and tear excepted) that same was provided to the Lessee.
8.3. Should the Lessee fail and/or refuse to return the Equipment to the Lessor, then the Lessor shall immediately and without notice take possession of the Equipment wheresoever found and remove, keep or dispose thereof at its sole election, as the rightful owner of the Equipment. Any costs incurred in recovering the Equipment as well as the costs of the additional rental days, will be for the account of the Lessee.
8.4. All risk in and to the Equipment shall remain with the Lessee until the Lessor has recorded the return of the Equipment.
9. WARRANTIES AND UNDERTAKINGS BY THE LESSOR
9.1. The Lessor warrants that it is the owner of the Equipment and is authorised to enter into this Agreement.
9.2. To the fullest extent permissible in law, the Lessor gives no other warranties save for those specifically recorded in this Agreement.
9.3. The Lessor shall register any manufacturer’s warranty claim/s for Equipment defects. If applicable, the Lessor shall facilitate remote support for defective Equipment, and if unsuccessful, provide an onsite technician.
10. UNDERTAKINGS BY THE LESSEE
10.1.1. that the Lessee shall maintain the Equipment and keep it in good order and repair, with all maintenance, repairs and services being performed timeously and only by the contractor nominated by the Lessor;
10.1.2. that the Lessee shall not sublease, cede rights, or allow any third-party access to or use of the Equipment, without the prior permission of the Lessor;
10.1.3. to use the Equipment only for the Permitted Purpose;
10.1.4. not use the Equipment for any illegal purpose;
10.1.5.
not to remove the Equipment to any country outside of the
republic of South Africa for any period without the prior written consent of
the CompanyLessor;
10.1.6. not to use the Equipment for any purpose for which it is not designed for or in contravention of the law;
10.1.7.
to immediately notify the Company Lessor
if the Equipment is damaged, lost or stolen, and provide the LessorCompany
with a copy of the police report and docket number for insurance purposes,
where it was necessary for the damage or theft to be reported;
10.1.8.
to return the Equipment to the CompanyLessor
when requested to do so, for any purpose, at any reasonable time;
10.1.9. to ensure that the Equipment is properly stored and that reasonable precautions are taken to prevent its theft or loss; and
10.1.10. to retain all original packaging for the Equipment.
10.2. The Lessee hereby grants that it understands and accepts that failure to adhere to any one or more of the undertakings contained in this clause 10 shall constitute a breach of this Agreement, and may result in the termination of this Agreement at the sole discretion of the Lessor.
11. LIMITATION OF LIABILITY
11.1. Neither the Lessor nor any of the Lessor’s Associates shall be liable for personal injury to or the death of any person or the loss of or damage to any property of whatever nature, howsoever arising or caused, by or during the Lessee’s use of the Equipment, and the Lessee hereby indemnifies the Lessor for any such claims and losses.
11.2. Disclaimers and limitation of liability:
11.2.1. To the fullest extent permissible by law, :
11.2.2. the Lessor disclaims all warranties, any representations of fitness for purpose of any kind, whether express or implied in respect of the Equipment and the Lessee utilises the Equipment at its own risk.
11.2.3. The Lessee agrees that the Lessor is unable to, and is not required to, guarantee a particular result or set of commercial results.
11.2.4. The Lessee agrees that neither the Lessor nor any of the Lessor’s Associates shall be liable for any Losses however arising and whatever the cause.
11.2.5. The Lessee irrevocably waives any claims it may have against the Lessor and/or the Lessor’s Associates arising out of, or related to (and agrees not to institute any proceedings in respect of), the use of the Equipment and/or this Agreement more than 1 (one) year after the cause of action relating to such claim or legal action arose.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 11
12.1. The Lessee hereby indemnifies the Lessor and the Lessor’s Associates from any Losses which may arise as a result of the Lessee’s unlawful conduct, wilful misconduct, negligence and/or gross negligence.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 12
13.1. Should the Equipment be destroyed or damaged to such an extent as to render it substantially or wholly unfit to be used for the purpose for which it is intended, then neither Party shall be entitled to terminate this Agreement.
13.2. The Lessee hereby assumes and shall bear the entire risk of loss and damage to the Equipment for the duration of this Agreement, whilst in the possession of the Lessee, and until such time thereafter as all Equipment has been returned to the Lessor.
13.3. In the event of loss or damage of any kind whatsoever to the Equipment, as per clause 13.1 above, the Lessee shall notify the Lessor the same day of loss or damage.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 13
14. BREACH
14.1. Should either Party (“Defaulting Party”) commit any breach of any term, condition, undertaking, warranty or representation contained in this Agreement and:
14.1.1. should such breach be incapable of being remedied; or
14.1.2. should such breach be capable of being remedied, and should the Defaulting Party fail to remedy such breach within 20 (twenty) Business Days,
14.2. then, unless the Parties agree in writing that such breach can be remedied by the payment of money in respect of any loss, the other Party (“Aggrieved Party”) shall be entitled, at its election, without prejudice to any other rights which it may have in terms of this Agreement or at law, either:
14.2.1. to require the Defaulting Party to make specific performance without prejudice to its rights and to claim damages; or
14.2.2. to cancel this Agreement without prejudice to its rights and to claim damages.
15. DISPUTES
15.1. Any dispute which arises between the Parties in respect of this Agreement shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
15.3. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude a Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
15.4. The arbitration referred to in clause 15.2 shall be held:
15.4.1. within the jurisdiction set out in item 9 of the above Table or other venue agreed by the Parties in writing;
15.4.2. in English; and
15.4.3. immediately and with a view to its being completed within 21 (twenty‑one) days after it is demanded.
15.5. The Parties irrevocably agree that the decision in arbitration proceedings:
15.5.1. shall be final and binding upon them;
15.5.2. shall be carried into effect; and
15.5.3. may be made an order of any court of competent jurisdiction.
15.6. This clause shall be severable from the rest of this Agreement and therefore shall remain effective between the Parties after this Agreement has terminated.
16.1. This Agreement constitutes the entire agreement and understanding of the Parties and supersedes and merges any and all prior proposals, understandings and agreements, oral and written, between the Parties concerning the subject matter hereof.
17. DOMICILIUM CITANDI ET EXECUTANDI
17.1. The Parties choose the respective addresses set forth in clause 1.1.7 and item 1 of the above Table as their respective domicilium citandi et executandi (“domicilium”) for all purposes arising from this Agreement and as their respective addresses for the service of any notice required to be served upon them.
17.2. A Party may change its domicilium to any other physical address or telephone or email address by written notice to the other Party to that effect. Such change of address will be effective seven days after receipt of notice of change of domicilium.
17.3. All notices to be given in terms of this Agreement will be given in writing.;
17.3.1. be delivered by email, facsimile or sent by courier;
17.3.2. if delivered, be presumed to have been received on the date of delivery.
17.4. If any notice is sent by email, the provisions of the Electronic Communications and Transactions Act 25 of 2002 governing receipt of data messages, shall apply.
17.5. Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has been given in accordance with the provisions of this clause.
18. GENERAL
18.1. This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter hereof.
18.2. Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to Writing and signed by the Parties or their representatives.
18.3. No addition to, variation or consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement, or its breach or termination, shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorized representatives.
18.4. For the avoidance of doubt, data messages as defined in the Electronic Communications and Transactions Act No.25 of 2002 shall not constitute “writing” for purposes of this clause, whether such data message includes an electronic signature or not.
18.5. No indulgence, which either Party may grant to the other, shall constitute a waiver of any of the rights of the grantor.
18.6. If any provision of this Agreement should be wholly or partly invalid, unenforceable or unlawful, then this Agreement shall be severable in respect of the provision in question (to the extent that it is invalid, unenforceable or unlawful) and the remaining provisions of this agreement shall remain in full force and effect.
18.7. This Agreement and performance hereunder shall be governed by the laws of the South Africa without regard to conflicts of laws. The Parties hereby consent and submit to the jurisdiction of the appropriate South African court within the jurisdiction set out in item 9 of the above Table.
18.8. A certificate issued and signed by a duly authorised manager of the Lessor (whose authority need not be proven) stating the amount owed by the Lessee to the Lessor, will constitute prima facie proof of the facts stated therein and the amount of the indebtedness of the Lessee to the Lessor. Such a certificate may be used in support of any application by the Lessor for default judgement, provisional sentence or summary judgement or any other legal proceeding.
18.9. All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of this Agreement, including legal costs on the scale of attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable from the Party against which such rights are successfully enforced.
18.10. This Agreement may be executed in one or more counterparts and in separate counterparts, each of which when executed shall be deemed to be an original but when taken together shall constitute one and the same Agreement.
—Remainder of Page Left Blank for Signature Purposes—
THUS DONE and SIGNED at ________ on this the________day of___________20
LESSOR
THUS DONE and SIGNED at ________ on this the________day of___________20
LESSEE
EQUIPMENT LEASE AGREEMENT
between:
WIZA SOLUTIONS (PTY) LTD
Registration Number: 2015/182799/07XXX
(“the Lessor”)
and
THE LESSEE
(as recorded in item 1 of the Table below)
(collectively referred to as the “Parties”)
1.1. In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
1.1.1. “Agreement” shall mean this Agreement together with all annexures hereto, which annexures shall be read as if specifically incorporated herein;
1.1.2. “Business Day” shall mean any day of the week, excluding Saturdays, Sundays and official public holidays in the Republic of South Africa;
1.1.3. “Commencement Date” shall mean the date upon which this Agreement comes into effect, being the date recorded in item 2 of the above Table, irrespective of the date of signature of this Agreement by the Parties;
1.1.4. “Deposit” shall mean the deposit amount stipulated in item 6 of the above Table;
1.1.5. “Equipment” shall mean the item as detailed in item 3 of the above Table;
1.1.6. “Lessee” shall mean the Lessee, whose full and further details are set out in item 1 of the above Table;
1.1.7.
“Lessor” shall mean Wiza
Solutions (Pty) Ltd (Registration Number 2015/182799/07XXX), a
company duly registered in terms of the laws of the Republic of South Africa,
and having its business address at 41
Basalt Street, Stellenridge, Bellville, 7530XXX,
and having email address: connect@getwiza.comXXX;
1.1.8. “Lessor’s Associates” means the Lessor’s directors, officers, servants, agents, contractors or other persons in respect of whose actions the Lessor may be held to be vicariously liable;
1.1.9. “Losses” means all losses (including, but not limited to, those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
1.1.10. “Parties” shall mean the Lessee and the Lessor collectively, and “Party” means any one of them, as the context indicates;
1.1.11. “Permitted Purpose” shall be the purpose for which the Equipment is to be utilised, as recorded in item 7 of the above Table;
1.1.12. “Rental” shall mean the amount paid by the Lessee to the Lessor in terms of item 4 of the above Table in consideration for rental of the Equipment; and
1.1.13. “Term” means the period of 12 (twelve) months commencing on the Commencement Date.
2. INTERPRETATION
2.2. In this Agreement, unless a contrary intention clearly appears:
2.2.1. any reference to the singular includes the plural and vice versa;
2.2.2. any reference to one gender includes the other gender; and
2.2.3. any reference to natural persons includes legal persons and vice versa.
2.3. When any number of days is prescribed, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day.
2.4. Where in this Agreement, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed in ink by the duly authorised representative of such Parties.
2.5. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
2.6. Where words have been defined in the body of the Agreement, such words will, unless otherwise required by the context, have the meanings so assigned throughout the Agreement.
2.7. The rule of construction in terms of which an agreement shall be interpreted against the party responsible for its drafting shall not apply.
2.9. Where an expression has been defined, whether in clause 1 above, or elsewhere, and such definition contains a provision conferring a right or imposing an obligation on any Party, then, notwithstanding that it is contained only in a definition, effect shall be given to that provision as if it were a substantive provision contained in the body of the Agreement.
2.10. Expiration or termination shall not affect such of the provisions of this Agreement which of necessity must continue to have effect after such expiration or termination, notwithstanding that such provision may not expressly provide.
2.11. No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.
3. INTRODUCTION
3.1. The Lessor is the owner of the Equipment, which it desires to lease to the Lessee, with the Lessee being desirous of leasing the Equipment from the Lessor.
3.2. The Parties wish to enter into an Agreement on the terms specified herein relating to the Equipment on the terms as set out in this Agreement.
4. EQUIPMENT
4.1. The Lessor hereby gives the Lessee the full right of use and enjoyment of the Equipment, in return for payment of the Rental, until this Agreement is terminated in accordance with its terms and conditions.
1.1.
The Lessor shall
retain ownership of the Equipment and the Lessee shall have no claim to
ownership of the Equipment whatsoever, unless all amounts due in terms of this Agreement,
including all Rental amounts, have been paid in full during the Term, in which
case ownership of the Equipment shall transfer from the Lessor to the Lessee.
4.2. All risk of loss, damage, destruction or otherwise in and to the Equipment shall pass to the Lessee on delivery of the Equipment to the Lessee until return of the Equipment to the Lessor. The cost of reinstating the Equipment to its pre-delivery condition (fair wear and tear excepted) will be for the account of the Lessee and will be payable upon invoice by the Lessor.
________________________
Lessee to initial confirming
acceptance of the terms of
clauses 4.2, 4.3 and 4.4
4.5. The Lessee acknowledges that during the Term, technology may change, and accordingly the Lessor may, in its sole discretion, replace the Equipment, or any part thereof, with a substantially similar item. In such a situation, item 3 of the above Table shall be updated and amended accordingly.
5. COMMENCEMENT AND DURATION OF THIS AGREEMENT
5.1. This Agreement shall commence on the Commencement Date and shall subsist for the Term or until terminated in accordance with the terms of this Agreement.
5.3. Either Party shall be entitled to terminate this Agreement for any reason or no reason at all by providing the other Party with 20 (twenty) Business Days written notice of termination, and following termination, the Lessee shall immediately return the Equipment to the Lessor in the same condition that the Equipment was in when it was provided to the Lessee (fair wear and tear excepted).
6. DEPOSIT
6.1. The Lessee shall pay the Deposit to the Lessor on or before the Commencement Date and in any event prior to taking possession of the Equipment.
6.2. The Lessor may appropriate the Deposit, or any part thereof, as it deems fit, towards the payment of any amounts for which the Lessee is liable in terms of this Agreement and which are overdue for payment, including amounts arising on, or subsequent to the termination this Agreement, provided that in the event of the Lessor doing so during the period of this Agreement, the Lessee shall be obliged to reinstate the Deposit to its original amount, forthwith.
6.3. The Deposit shall be repaid by the Lessor to the Lessee, less any amounts deducted by the Lessor, including amounts arising on, or subsequent to the termination this Agreement once the Lessee has complied with all its obligations to the Lessor.
7. RENTAL
7.1.
Rental shall be
paid by the Lessee to the The Lessor
on a monthly basis, payable in advance, by means of debit order, Lessor shall invoice the Lessee on a monthly
basis, in advance,
which invoice shall set out the amount of
Rental due and payable by the Lessee to the Lessor on or before the date set out in item 5 of the above
Table.
1.1.
The Rental shall
be paid into the Lessor’s banking account as set out in item 8 of the above Table.
7.2. Such Rental shall be payable free of deduction or set-off and the Lessee shall not be entitled to withhold any portion thereof as a result of any claim which the Lessee might enjoy, whilst the Lessee is in possession of the Equipment.
7.3. If any amount due in terms of this Agreement, including Rental, is paid after the due date therefor, the Lessor shall be entitled, but not obliged, to charge interest thereon at the maximum rate of interest applicable to incidental credit agreements (currently 2% (two percent) per month), as published from time to time in the regulations to the National Credit Act, No. 34 of 2005, or the successor to such legislation, from the due date until the date on which payment of such amount has been received by the Lessor in full.
8. RETURN OF THE EQUIPMENT
8.1. At the end of the Agreement, the Lessee shall return the Equipment, at the Lessee’s expense, to an authorised representative of the Lessor.
8.2. In the event of a breach, the Lessor shall immediately upon demand by the Lessor return to the Lessor the Equipment in the same condition (fair wear and tear excepted) that same was provided to the Lessee.
8.3. Should the Lessee fail and/or refuse to return the Equipment to the Lessor, then the Lessor shall immediately and without notice take possession of the Equipment wheresoever found and remove, keep or dispose thereof at its sole election, as the rightful owner of the Equipment. Any costs incurred in recovering the Equipment as well as the costs of the additional rental days, will be for the account of the Lessee.
8.4. All risk in and to the Equipment shall remain with the Lessee until the Lessor has recorded the return of the Equipment.
9. WARRANTIES AND UNDERTAKINGS BY THE LESSOR
9.1. The Lessor warrants that it is the owner of the Equipment and is authorised to enter into this Agreement.
9.2. To the fullest extent permissible in law, the Lessor gives no other warranties save for those specifically recorded in this Agreement.
9.3. The Lessor shall register any manufacturer’s warranty claim/s for Equipment defects. If applicable, the Lessor shall facilitate remote support for defective Equipment, and if unsuccessful, provide an onsite technician.
9.4. The Lessor shall, in its sole discretion, repair or replace any defective Equipment during the Term.
9.5. The Lessor may reject any applicable warranty claim for any of the following reasons:
9.5.1. The serial number of the Equipment has been altered or is incorrectly reported to the Lessor by the Lessee;
9.5.2. Any damage to the Equipment caused by non-compliance with the specifications and ambient conditions applicable to the Equipment;
9.5.3. A third party, not authorised by the Lessor in writing, has maintained and/or services the Equipment;
9.5.4. The warranty part is not returned by the Lessee to the Lessor within 30 (thirty) days of authorisation;
9.5.5. The Lessee is in arrears with any amounts due in terms of this Agreement; and/or
9.5.6. The Lessee has on-sold the Equipment to a third party without the Lessor’s written consent.
10. UNDERTAKINGS BY THE LESSEE
10.1.1. that the Lessee shall maintain the Equipment and keep it in good order and repair, with all maintenance, repairs and services being performed timeously and only by the contractor nominated by the Lessor;
10.1.2. that the Lessee shall not sublease, cede rights, or allow any third-party access to or use of the Equipment, without the prior permission of the Lessor;
10.1.3. to use the Equipment only for the Permitted Purpose;
10.1.4. not use the Equipment for any illegal purpose;
10.1.5.
not to remove the Equipment to any country outside of the
republic of South Africa for any period without the prior written consent of
the CompanyLessor;
10.1.6. not to use the Equipment for any purpose for which it is not designed for or in contravention of the law;
10.1.7.
to immediately notify the Company
Lessor if the Equipment is damaged,
lost or stolen, and provide the Company
Lessor with a copy of the police
report and docket number for insurance purposes, where it was necessary for the
damage or theft to be reported;
10.1.8.
to return the Equipment to the Company Lessor
when requested to do so, for any purpose, at any reasonable time;
10.1.9. to ensure that the Equipment is properly stored and that reasonable precautions are taken to prevent its theft or loss; and
10.1.10. to retain all original packaging for the Equipment.
10.2. The Lessee hereby grants that it understands and accepts that failure to adhere to any one or more of the undertakings contained in this clause 10 shall constitute a breach of this Agreement, and may result in the termination of this Agreement at the sole discretion of the Lessor.
11. LIMITATION OF LIABILITY
11.1. Neither the Lessor nor any of the Lessor’s Associates shall be liable for personal injury to or the death of any person or the loss of or damage to any property of whatever nature, howsoever arising or caused, by or during the Lessee’s use of the Equipment, and the Lessee hereby indemnifies the Lessor for any such claims and losses.
11.2. Disclaimers and limitation of liability:
11.2.1. To the fullest extent permissible by law, :
11.2.2. the Lessor disclaims all warranties, any representations of fitness for purpose of any kind, whether express or implied in respect of the Equipment and the Lessee utilises the Equipment at its own risk.
11.2.3. The Lessee agrees that the Lessor is unable to, and is not required to, guarantee a particular result or set of commercial results.
11.2.4. The Lessee agrees that neither the Lessor nor any of the Lessor’s Associates shall be liable for any Losses however arising and whatever the cause.
11.2.5. The Lessee irrevocably waives any claims it may have against the Lessor and/or the Lessor’s Associates arising out of, or related to (and agrees not to institute any proceedings in respect of), the use of the Equipment and/or this Agreement more than 1 (one) year after the cause of action relating to such claim or legal action arose.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 11
12.1. The Lessee hereby indemnifies the Lessor and the Lessor’s Associates from any Losses which may arise as a result of the Lessee’s unlawful conduct, wilful misconduct, negligence and/or gross negligence.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 12
13.1. Should the Equipment be destroyed or damaged to such an extent as to render it substantially or wholly unfit to be used for the purpose for which it is intended, then neither Party shall be entitled to terminate this Agreement.
13.2. The Lessee hereby assumes and shall bear the entire risk of loss and damage to the Equipment for the duration of this Agreement, whilst in the possession of the Lessee, and until such time thereafter as all Equipment has been returned to the Lessor.
13.3. In the event of loss or damage of any kind whatsoever to the Equipment, as per clause 13.1 above, the Lessee shall notify the Lessor the same day of loss or damage.
________________________
Lessee to initial confirming
acceptance of the terms of
this clause 13
14. BREACH
14.1. Should either Party (“Defaulting Party”) commit any breach of any term, condition, undertaking, warranty or representation contained in this Agreement and:
14.1.1. should such breach be incapable of being remedied; or
14.1.2. should such breach be capable of being remedied, and should the Defaulting Party fail to remedy such breach within 20 (twenty) Business Days,
14.2. then, unless the Parties agree in writing that such breach can be remedied by the payment of money in respect of any loss, the other Party (“Aggrieved Party”) shall be entitled, at its election, without prejudice to any other rights which it may have in terms of this Agreement or at law, either:
14.2.1. to require the Defaulting Party to make specific performance without prejudice to its rights and to claim damages; or
14.2.2. to cancel this Agreement without prejudice to its rights and to claim damages.
15. DISPUTES
15.1. Any dispute which arises between the Parties in respect of this Agreement shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
15.3. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude a Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
15.4. The arbitration referred to in clause 15.2 shall be held:
15.4.1. within the jurisdiction set out in item 9 of the above Table or other venue agreed by the Parties in writing;
15.4.2. in English; and
15.4.3. immediately and with a view to its being completed within 21 (twenty‑one) days after it is demanded.
15.5. The Parties irrevocably agree that the decision in arbitration proceedings:
15.5.1. shall be final and binding upon them;
15.5.2. shall be carried into effect; and
15.5.3. may be made an order of any court of competent jurisdiction.
15.6. This clause shall be severable from the rest of this Agreement and therefore shall remain effective between the Parties after this Agreement has terminated.
16.1. This Agreement constitutes the entire agreement and understanding of the Parties and supersedes and merges any and all prior proposals, understandings and agreements, oral and written, between the Parties concerning the subject matter hereof.
17. DOMICILIUM CITANDI ET EXECUTANDI
17.1. The Parties choose the respective addresses set forth in clause 1.1.7 and item 1 of the above Table as their respective domicilium citandi et executandi (“domicilium”) for all purposes arising from this Agreement and as their respective addresses for the service of any notice required to be served upon them.
17.2. A Party may change its domicilium to any other physical address or telephone or email address by written notice to the other Party to that effect. Such change of address will be effective seven days after receipt of notice of change of domicilium.
17.3. All notices to be given in terms of this Agreement will be given in writing.;
17.3.1. be delivered by email, facsimile or sent by courier;
17.3.2. if delivered, be presumed to have been received on the date of delivery.
17.4. If any notice is sent by email, the provisions of the Electronic Communications and Transactions Act 25 of 2002 governing receipt of data messages, shall apply.
17.5. Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has been given in accordance with the provisions of this clause.
18. GENERAL
18.1. This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter hereof.
18.2. Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to Writing and signed by the Parties or their representatives.
18.3. No addition to, variation or consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement, or its breach or termination, shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorized representatives.
18.4. For the avoidance of doubt, data messages as defined in the Electronic Communications and Transactions Act No.25 of 2002 shall not constitute “writing” for purposes of this clause, whether such data message includes an electronic signature or not.
18.5. No indulgence, which either Party may grant to the other, shall constitute a waiver of any of the rights of the grantor.
18.6. If any provision of this Agreement should be wholly or partly invalid, unenforceable or unlawful, then this Agreement shall be severable in respect of the provision in question (to the extent that it is invalid, unenforceable or unlawful) and the remaining provisions of this agreement shall remain in full force and effect.
18.7. This Agreement and performance hereunder shall be governed by the laws of the South Africa without regard to conflicts of laws. The Parties hereby consent and submit to the jurisdiction of the appropriate South African court within the jurisdiction set out in item 9 of the above Table.
18.8. A certificate issued and signed by a duly authorised manager of the Lessor (whose authority need not be proven) stating the amount owed by the Lessee to the Lessor, will constitute prima facie proof of the facts stated therein and the amount of the indebtedness of the Lessee to the Lessor. Such a certificate may be used in support of any application by the Lessor for default judgement, provisional sentence or summary judgement or any other legal proceeding.
18.9. All costs, charges and expenses of any nature whatever which may be incurred by a Party in enforcing its rights in terms of this Agreement, including legal costs on the scale of attorney and own client and collection commission, irrespective of whether any action has been instituted, shall be recoverable from the Party against which such rights are successfully enforced.
18.10. This Agreement may be executed in one or more counterparts and in separate counterparts, each of which when executed shall be deemed to be an original but when taken together shall constitute one and the same Agreement.
—Remainder of Page Left Blank for Signature Purposes—
THUS DONE and SIGNED at ________ on this the________day of___________20
LESSOR
THUS DONE and SIGNED at ________ on this the________day of___________20
LESSEE