Service Conditions

1. Definitions

Goods means all equipments supplied by TELKOM as stipulated in this Agreement

2. Interpretations

2.1 In this Agreement, unless inconsistent with the text:

2.1.1 words importing the singular include the plural and vice versa;

2.1.2 words signifying one gender include the other genders as well as juristic persons such as companies, close corporations and trusts and vice versa;

2.1.3 headings to paragraphs are for reference only and are not to be used in interpreting the meaning of the text.

3. Early Termination

This Agreement endures for the duration agreed upon by the Parties, however, the CUSTOMER may elect to settle in one amount the full balance then outstanding, or payment thereof being accelerated for any reason whatsoever.

4. Purchase Price

4.1 The CUSTOMER shall pay to TELKOM free of exchange at the address of TELKOM, the charges shown in annexure "B” on the due dates thereof. All payment shall be made without any deductions of any nature whatsoever.

4.2 TELKOM will be entitled to appropriate any payments received for and on behalf of the CUSTOMER to any indebtedness of the CUSTOMER from whatsoever cause arising.

4.3 In the event of any instalment not being paid on or by the due date the CUSTOMER shall be liable for interest thereon at the rate determined by TELKOM in terms of its Standard Terms and Conditions, and which rate shall not exceed the maximum rate allowed by the National Credit Act 34 of 2005.

5. Proof of Amounts

A certificate signed by any manager, accountant or director of TELKOM whose capacity and authority need not be proved shall constitute prima facie proof of the matter of evidence stated therein in regard to any amount owing by the CUSTOMER.

6. Risk of Loss and Insurance

6.1 All risk in the Goods from whatever cause arising passes to the CUSTOMER on delivery of the Goods.

6.2 The CUSTOMER will keep the Goods insured against all loss and damage for the full period of this Agreement with a registered insurer for the value equivalent to the purchase price, and will have the interest of TELKOM in the Goods noted on the insurance policy.

6.3 The CUSTOMER will be obliged to produce proof of payment of all insurance premiums due in terms of this Agreement upon request by TELKOM and produce the policy document if so required.

7. The Customer’s Responsibilities in Respect of the Goods

7.1 The CUSTOMER will at all times keep the Goods in its possession and control and exercise due and proper care in the use thereof and will at its own cost maintain the Goods in good working order.

7.2 The CUSTOMER will keep the Goods properly housed and protect them from loss and damage from whatsoever cause.

7.3 The CUSTOMER will keep the Goods free from any judicial attachment, hypothec or any other legal charge or process and will not without the written consent of TELKOM encumber or in any way deal with the Goods.

7.4 The Goods will, for the duration of this Agreement, be operated at the CUSTOMER’s cost and only by competent, properly trained, licensed and qualified persons.

7.5 The Goods will be used only for the purpose for which they were intended and the CUSTOMER or its agents will comply and procure compliance with the instructions, specifications, manuals and recommendations of the manufacturers or suppliers of the Goods or any authorised agent or dealer thereof.

7.6 The CUSTOMER will not make any alterations, additions or modifications to the Goods for the duration of this Agreement without TELKOM’s prior written consent. Any part or accessory added to the Goods becomes part thereof and TELKOM’s property.

7.7 TELKOM or its representative shall at all reasonable times, during the existence of this Agreement, be entitled to examine the Goods.

7.8 The CUSTOMER acknowledges and agrees that the Goods are movable property and that they may not under any circumstance removed from the address given under this Agreement, and that notwithstanding any such removal it is the clear and expressed intention that the Goods at all times remain the property of TELKOM who has the right to recover such Goods in the event of on termination of this Agreement for any reason.

7.9 The CUSTOMER acknowledges that the Goods will not, during the existence of this Agreement, without the prior written consent of TELKOM be used elsewhere than in the Republic of South Africa and the given address as notified to TELKOM

7.10 The CUSTOMER will advise TELKOM in writing of the full name and address of the landlord where the Goods are kept as well as the name and address of any subsequent landlord. The CUSTOMER is obliged to notify such landlord of TELKOM’s ownership of the Goods.

8. Telkom’s Right to Protect Equipment

If the CUSTOMER fails to comply with any of the provisions of this Agreement TELKOM will have the right to effect such compliance on its behalf. All costs and expenses incurred by TELKOM in so doing or otherwise in protecting its title or the condition of the Goods will be paid by the CUSTOMER to TELKOM on demand.

9. Warranties

9.1 The CUSTOMER acknowledges that:

9.1.1 the Goods have been selected by the CUSTOMER for the purpose of credit sale to the CUSTOMER;

9.1.2 TELKOM has not, except for manufacturer's warranty and/or guarantee, given any warranties, guarantees or undertaking of whatsoever nature as to the quality of the Goods nor has anyone on TELKOM ’s behalf given any such warranties, guarantees or undertakings;

9.1.3 TELKOM has not made any representations of whatsoever nature to induce the CUSTOMER to enter into this Agreement;

9.1.4 The CUSTOMER is aware that the Goods which are the subject matter hereof are purchased subject to the manufacturer's warranty or guarantee, and that the CUSTOMER will have no claims of whatever nature against TELKOM from whatever cause arising;

9.1.5 Defective manufacture by the manufacturer or a failure on its part to make good any breach, guarantee, warranty or representation or undertaking will in no way affect the CUSTOMER’s obligations and the CUSTOMER shall be obliged to continue to perform all its obligations in terms hereof including the payment of instalments as if no such defective manufacture had occurred. Should the supplier or manufacturer of the Goods have issued any guarantee or warranty in respect thereof the CUSTOMER is entitled to cession of all TELKOM ’s rights in and to such guarantee or warranty.

10. Ownership and Title

The Goods purchased by CUSTOMER under this Agreement shall, despite delivery to the CUSTOMER, remain the property of TELKOM for the duration of this Agreement, and ownership therein shall only by acquired by the CUSTOMER upon full payment of the purchase price together with interest charged thereon.

11. Breach and Cancellation

11.1 Should the CUSTOMER: (1) commits a material breach of any provisions of this Agreement (which includes failure to pay any amount due by it in this Agreement on or by the due date), and fails to remedy such breach or make payment within 10 (ten) days of written notice to do so; or (2) commits an act of insolvency as defined in the Insolvency Act 24 of 1935, becomes insolvent or enters into voluntary or compulsory liquidation or sequestration or passes a resolution for liquidation or makes an arrangement or compromise with its creditors, takes steps to de-register itself or is de-registered; or (3) suffers any judgment by default entered against it and fail to take steps to rescind such judgment within 7 (SEVEN) days of it coming to its knowledge or fails to satisfy such judgment within 7 (SEVEN) days of the refusal of rescission thereof; or (4) abandons the Goods; or (5) have made any inaccurate statement or representation in connection with this Agreement or its financial affairs; or (6) allows the Goods to be seized under any legal process issued against the CUSTOMER; the CUSTOMER shall be in breach, and TELKOM shall be entitled, in addition to all other remedies to which it may be entitled to in law or in terms of this Agreement to cancel this Agreement

11.2 Upon termination, for whatever reason, the CUSTOMER shall no longer have any right to the possession or use of the Goods and will immediately make available the Goods supplied pursuant to any provisions of this Agreement, and TELKOM may enter any premises to recover or remove such Goods.

11.3 If this Agreement shall terminate at any time by reason of the act, default, or breach of this Agreement by the CUSTOMER then the CUSTOMER will be liable to pay forthwith to TELKOM: (a) all arrear instalments plus interest thereon as stipulated in clause 4.3 above; and (b) damages equivalent to the total of all instalments in respect of the unexpired period of this Agreement reckoned from date of termination of this Agreement. Then and upon the happening of any of these events, TELKOM will be entitled and without prejudice to any of its other rights to:

(i) cancel this Agreement and take back possession of the Goods and claim:
(ii) all arrear instalments plus interest thereon; and
(iii) Insert Calculation of Penalties

12. Disputed Cancellation

In the event of the CUSTOMER disputing the cancellation of this Agreement by TELKOM the CUSTOMER shall be obliged to continue to pay the instalments in terms hereof when they fall due and should the dispute be determined in favour of TELKOM then such payments shall be deemed to be payments on account of damages.

13. Limitation of Liability

In no event will TELKOM or its subcontractors be liable to CUSTOMER or anyone else for special, collateral, exemplary, indirect, incidental or consequential damages (including without limitation, loss of goodwill, loss of profits or revenues, loss of savings, loss of use, interruptions of business, and claims of CUSTOMER), whether such damages occur prior or subsequent to, or are alleged as a result of, delict or breach of any of the provisions of this Agreement, even if TELKOM has been advised of the possibility of such damages. All warranties that may be deemed applicable to the Goods, including but not limited to implied warranties of merchantability or fitness for a particular purpose, are expressly disclaimed.

14. Assignment

The CUSTOMER shall not abandon, transfer, assign or sublet the Agreement or part thereof, or cede any of its rights or delegate any of its obligations in terms of the Agreement, without prior written approval of TELKOM, which approval shall not unreasonably be withheld.

15. Confidentiality

TELKOM and CUSTOMER to the extent of their contractual and lawful right to do so will exchange proprietary or confidential information as reasonably necessary for each to perform its obligations under this Agreement and for the CUSTOMER to avail itself of the Goods supplied by TELKOM under this agreement. All information relating to this Agreement provided by either Party to the other, whether oral or written, and when identified as confidential or proprietary in writing, is hereby deemed to be confidential and proprietary information ("Proprietary Information").

16. Additional Clauses

16.1 Severability

If any of the provisions or any portion of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement will be construed as if not containing the particular invalid or unenforceable provisions or portion thereof, and the rights or obligations of the Parties hereto will be construed and enforced accordingly.

16.2 No Waiver

Failure by TELKOM to exercise any rights under this Agreement in any one or more instances will not constitute a waiver of such rights in any other instance. Waiver by TELKOM of any default under this Agreement will not be deemed a waiver of any other default. No alteration or modification of any provision of this Agreement will be deemed a waiver of any other default. No alteration or modification of any provision of this Agreement will be binding unless in writing and signed by duly authorised representatives of both Parties.

16.3 For the purpose of this Agreement the CUSTOMER chooses its domicilium citandi et executandi for all notices and processes the address given in page containing CUSTOMER's details in this Agreement and TELKOM at Telkom Towers North, 152 Proes Street, Pretoria.

16.3.1 Any notice given in terms of this Agreement shall be in writing and shall:

(i) if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery;

(ii) if posted by prepaid registered post, be deemed to have been received by the addressee on the 8th (eighth) business day following the date of such posting;

(ii) if transmitted by facsimile, be deemed to have been received by the addressee one (1) business day after dispatch.

(iv) if transmitted by electronic mail, be deemed to have been received by the addressed when the complete data message enters an information system designed or used for that purpose by the addressee and is capable of being retrieved and processed by the addressee.

16.3.2 Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of facsimile transmission shall be adequate written notice or communication to such Party.

17. Costs

17.1 All costs and disbursements including legal costs on an attorney and client scale incurred by TELKOM:

17.2.1 in recovering possession of the Goods; and/or

17.2.2 in tracing the CUSTOMER or the Goods; and/or

17.2.3 in disposing of the Equipment; and/or

17.2.4 in collecting or endeavouring to collect any amounts due in terms hereof, are payable by the CUSTOMER on demand including collection commission, selling commission, dismantling and removal charges, costs of repairing and restoring the Goods to their former condition, the costs of storage and all like charges.

18. Applicable Law and Jurisdiction

18.1 This Agreement shall be in all respect governed and construed in accordance with the laws of the Republic of South Africa.

18.2 The CUSTOMER hereby consents to the jurisdiction of the magistrate’s court having jurisdiction over his person in respect of all legal proceedings connected with this Agreement, notwithstanding that the amount of the matter in dispute exceeds the court’s jurisdiction.

18.3 Notwithstanding the aforegoing TELKOM is entitled to institute proceedings against the CUSTOMER in the division of the High Court having jurisdiction in the matter.

19. Entire Agreement

These terms and conditions together with TELKOM’s Standard Terms and Conditions as well as quotation/proposal constitute the entire agreement between the parties and supersedes any prior written or oral agreement or understanding with respect to the subject matter hereof. No amendment to this Agreement and no waiver of any provision shall be valid unless it is made in writing and signed by a duly authorized representative of the CUSTOMER and TELKOM. Failure by TELKOM to exercise any rights under this Agreement in any one or more instances will not constitute a waiver of such rights in any other instances. The acceptance of this agreement is subject to a favourable credit vet by TELKOM.