Depari Online
Terms and Conditions
1.1 Depari Online provides access
to the Internet and also various other products and services, for example
mobile voice services, hosting of websites, hardware bundled with Internet
access, faxmail, email, domain registrations.
1.2 These General Terms and
Conditions include the ISPA Code of Conduct and Acceptable Use Policy, and Take
Down Notifications Procedure.
1.3 These Terms and Conditions
apply to all products and services offered.
1.4 You agree to these General
Terms and Conditions at the outset, and then to any other additional terms and
conditions that may be required for products/services. In the case of a
discrepancy between these terms and conditions the additional products/services
specific terms and conditions will take precedence.
2. Definitions
2.1 Activation Date means the
date on which DEPARI ONLINE will give you access to and/or enable you to use a
service;
2.2 Agreement means the General
Terms and Conditions as defined in clause 1.2 together with the relevant
product or service specific terms and conditions which are applicable to the
services and/or products, including the Application Form provided to you by DEPARI
ONLINE;
2.3 Application Form means the
document on which you selected your service or product of choice;
2.4 Authority means the
Independent Communications Authority of South Africa (“ICASA”);
2.5 Business Day means Monday to
Friday, but excludes a day which is an official public holiday in the
2.6 Business Hours means the
hours between 08h00 and 17h00 on a Business Day;
2.7 Effective Date means the date
on which you signify your acceptance of the terms and conditions prescribed by
us for the provisioning of a service or product, be that in writing or by way
of electronic medium, including telephonic acceptance and, in the event of any
dispute as to said date of acceptance, the Effective Date shall be the
Activation Date;
2.8 Electronic Communications Act
means the Electronic Communications Act, 2005;
2.9 ECT Act means the Electronic
Communications and Transactions Act, 2002;
2.10 Force Majeure means
(including without limitation) fire, flood, earthquake, elements of nature or
acts of God, riots, civil disorders, rebellions or revolutions in any country
or any other cause beyond the reasonable control of DEPARI ONLINE, that may
result in a delay or a failure to provide the Service;
2.11 Intellectual Property Rights
means the copyright in any work in terms of the Copyright Act, No. 98 of 1978,
and includes without limitation the right to reproduce that work, the rights in
respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the
rights in respect of a design conferred by the Designs Act, No. 195 of 1993,
and the rights in respect of a patent conferred by the Patents Act, No. 57 of
1978;
2.14 NCA means the National
Credit Act, 34 of 2005;
2.15 Network Coverage means the
geographical area within which the service can be accessed and used by you, as
determined at the time coverage was established;
2.16 Network Operator means a
company that owns an electronic communications network, and which makes such
network and the electronic communications services conveyed over such network
available to other industry players for commercial purposes (e.g. Vodacom, MTN,
iBurst and Telkom);
2.17 RICA means the Regulation of
Interception of Communications and Provision of Communication Related
Information Act, 2002;
2.18 Website means www.depari.co.za;
2.20 we, us and our means DEPARI
ONLINE cc, Registration Number 1999/023185/23/
2.22 you
means the subscriber to the service.
3. Conclusion of the Agreement
3.1 You warrant that you have the
contractual capacity to enter into this Agreement with us.
3.2 When you apply for a service
or product with DEPARI ONLINE you will provide us with
1. A certified copy of your
identity document,
2. proof
of residential and/or business address.
In the event of a juristic
person, you will provide us with the same information as above for your authorized
representative, together with proof of address (certified copy of company
letterhead) and a company resolution authorizing the application and the
company’s representative’s capacity to enter into the Agreement.
3.3 Your application for a
service or product may be subject to a credit referencing or risk assessment
process. This means that DEPARI ONLINE may request and receive your
Confidential Information, Consumer Credit Information and Prescribed
Information (as defined in the NCA) (“Assessment Information”) from registered
credit bureaus in order to perform a financial means test to determine whether
you will be in a position to meet your obligations under the intended
agreement.
3.4 DEPARI ONLINE is entitled to
perform a financial means test each time when you apply for a service or
product.
3.5 An agreement for the service
or product applied for will commence on the Effective Date. No agreement will
come into effect in the event of a negative credit reference or risk
assessment.
3.6 In this regard you consent to
DEPARI ONLINE requesting, receiving and reporting your Assessment Information
from and to registered credit bureaus in accordance with the provisions and for
the purposes of the NCA; and the sharing of such Information by registered
credit bureaus and such other persons as contemplated in the NCA, for the
prescribed purposes of the NCA.
3.11 This Agreement will continue
indefinitely, and you will be bound thereby for as long as you use any service
offered by DEPARI ONLINE. The Agreement will terminate simultaneously with the
termination for any reason of all specific service or product offerings, as
provided for in the service and product specific terms and conditions.
5. Service Delivery, Service Availability
5.4 DEPARI ONLINE will use
reasonable endeavors to make its services available to its subscribers, and to
maintain the availability thereof for use by its subscribers.
5.5 DEPARI ONLINE will use its
best endeavors to notify you in advance of any maintenance and repairs which
may result in the unavailability of a service, but can not always guarantee
this.
6. Data Retention
6.1 We will use reasonable
endeavors to ensure the safekeeping of any data or content which you may
receive or upload to our servers from time to time (hereinafter collectively
referred to as "your data"). However, it is your obligation to keep
copies and back-ups of your data, as:
6.1.1 we will not be liable for
any direct or indirect loss or damages of any kind, which you may suffer as a
result of the loss of your data, or any part thereof, for any reason whatsoever
(including as a result of our negligence, gross or otherwise); and
6.1.2 we
will delete all your data from our servers upon termination of this Agreement
and any other agreement between us.
8. Payment
8.1 Billing will commence on the
Activation Date.
8.2 You agree to pay all amounts
due under this Agreement in consideration for a service or product, in
accordance with the service or product specific terms under which that service
is rendered or that product is offered. Amounts recorded in the service and product
specific terms exclude transport costs and exclude VAT, unless otherwise
indicated.
8.3 All amounts due and payable
in terms hereof shall be paid free of exchange and without deduction or
set-off, by way of a direct debit order in favor of DEPARI ONLINE (drawn
against a current banking account nominated by you), or in such other manner as
DEPARI ONLINE may from time to time determine. You agree that:
8.3.1 by furnishing your bank
details to us, you instruct and authorize DEPARI ONLINE to draw all amounts
payable in terms of this agreement from the account specified (or any other
bank or branch to which it may be transferred);
8.3.2 that the debit order will
commence on the Activation Date and continue until termination of this
Agreement and the service or product specific agreement under which a service
is rendered or a product provided;
8.3.3 you
will sign all such forms and do all such things as may be necessary to give
effect to the debit order as contemplated in this clause 8.3.
8.5 Should you,
fail to pay any amount on the due date for payment, then DEPARI ONLINE may,
without prejudice to any of its other rights:
8.5.1 take all such further steps
as may be necessary to recover the outstanding amount from you, including
without limitation the use of debt collection mechanisms; and if the debt
arises from an agreement which is a credit agreement, then in accordance with
the collection and repayment practices as prescribed in the NCA;
8.5.2 charge interest at the rate
of 2% above the prime overdraft rate published by DEPARI ONLINE's bankers from
time to time on the overdue amount, calculated from the due date until the date
of payment (both dates inclusive), which interest, if charged, will be
capitalised monthly;
8.5.3 suspend
your access to the service without notice to you until such time as the
outstanding amount has been paid in full; or
8.5.4 terminate
this agreement with immediate effect.
8.6 Subject to the terms and
conditions of any agreement entered into between DEPARI ONLINE and a Network
Operator, DEPARI ONLINE shall be entitled to amend the fees or charges for its
services or products at any time. Subject to the terms and conditions of any
agreement entered into between DEPARI ONLINE and a Network Operator and subject
to the relevant product or service specific terms and conditions which are
applicable to the services and/or products provided to you by DEPARI ONLINE,
you may terminate this agreement within 30 (thirty) days from the date of DEPARI
ONLINE's of the fees or charges being amended, should you not agree to the
amendment, failing which the amendment will take effect on the date it was
applied.
8.7 DEPARI ONLINE will use
reasonable endeavors to inform you well advance, and in any event prior to
disconnection, about the possibility of disconnection in the case of
non-payment.
15. Breach
15.1 Should you be in breach of
any provision of this Agreement, or any provision of the service and product
specific terms and conditions, then DEPARI ONLINE shall be entitled, without
prejudice to any other rights that it may have and without notice to you, to
forthwith:
15.2 afford you a reasonable
opportunity to remedy the breach;
15.3suspend
your access to a service
15.4 cancel all agreements concluded between us; or
15.5 claim immediate performance
and/or payment of all your obligations in terms hereof.
16. Indemnity
16.1 You hereby unconditionally
and irrevocably indemnify DEPARI ONLINE and agree to hold DEPARI ONLINE
harmless against all loss, damages, claims, liability and/or costs, of
whatsoever nature, howsoever and whensoever arising, suffered or incurred by DEPARI
ONLINE or instituted against DEPARI ONLINE as a result of (without limitation):
16.1.1 your
use of the service;
16.1.3 your
failure to comply with these General Terms and Conditions and a provision of
any Agreements concluded between us;
16.1.4 any
unavailability of, or interruption in the service, as contemplated in clause 5
above.
17. Limitation of liability
To the extent permitted by
applicable law, DEPARI ONLINE shall not be liable to you for any direct damages
howsoever arising and neither party shall be liable to the other for any
special, indirect, incidental, consequential or punitive damages arising out of
or relating to this Agreement, whether resulting from negligence, breach or any
other cause. To the extent that a competent court or tribunal finally
determines, notwithstanding the limitation contained in this clause, that DEPARI
ONLINE is liable to you for any damages, DEPARI ONLINE’s liability to you for
any damages howsoever arising shall be limited to the amounts paid by you under
this Agreement in consideration for a service or product as contemplated in
clause 8.2 during the immediately preceding 12 (twelve) month period in respect
of the service or product which gave rise to the liability in question.
19. Cession and Delegation
You may not sell, cede, assign,
delegate or in any other way alienate or dispose of any or all of your rights
and obligations under and in terms of this Agreement without the prior written
approval of DEPARI ONLINE. DEPARI ONLINE shall be entitled to sell, cede,
assign, delegate, alienate, dispose or transfer any or all of its rights and
obligations under and in terms of this Agreement to any of its affiliates or to
any third party without your consent and without notice to you. “Affiliates”
for this purpose includes DEPARI ONLINE’s entities which are directly or indirectly
controlled by DEPARI ONLINE or are under common control with DEPARI ONLINE.
20. Jurisdiction
Notwithstanding clause 7.11 above,
you hereby consent to the jurisdiction of the Magistrate's Court in the
Republic of South Africa in respect of any proceedings that may be initiated by
DEPARI ONLINE arising out of this Agreement, provided that DEPARI ONLINE shall
be entitled, in its sole discretion, to institute such proceedings in the High
Court of South Africa and, in such event, you consent to the jurisdiction of
such court and agree that costs shall be calculated in accordance with the
tariff of such court.
21. Amendment of this agreement
DEPARI ONLINE
reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website
together with the date on which it will become effective, which will never be
less than 30 (thirty) days after the date on which it is first published. It is
your obligation to visit our web site on a regular basis in order to determine
whether any amendments have been made.
22. General
21.1 The parties acknowledge and
agree that this Agreement constitutes the whole of the agreement between them
and that no other agreements, guarantees, undertakings or representations,
either verbal or in writing, relating to the subject matter of this Agreement
not incorporated in this Agreement shall be binding on the parties. No
variation or addition of this Agreement or the Application Form will be binding
on any of the parties unless recorded in writing and signed by both parties.
21.2 DEPARI ONLINE is in terms of
section 43 of the ECT Act required to make its contact details, its domicilia
citandi et executandii and certain other information available to its
Subscribers who enter into electronic transactions with DEPARI ONLINE. This
information is available on our website.
21.3 You agree that any notices
we send to you in terms of any agreement concluded between us may be sent via
e-mail.
21.4 No indulgence, leniency or
extension of time which DEPARI ONLINE may grant or show to you shall in any way
prejudice DEPARI ONLINE or preclude DEPARI ONLINE from exercising any of its rights
in the future.
21.5 You warrant that, all the
details furnished by you to DEPARI ONLINE are true and correct and that you
will notify DEPARI ONLINE in the event of any change to such details.
21.7 The physical address where DEPARI
ONLINE will receive legal service of documents/ domicilium citandi et executandi is