1. MITSOL SERVICES
1.1. Mitsol (Pty) Ltd (Mitsol) provides an extensive range of Services, including but not limited to –
1.1.1. Leased Line Internet Access Services
1.1.2. ADSL and Dial on Demand Internet Access Services
1.1.3. Security Infrastructure Administration and Maintenance Services
1.1.4. Server Hosting Services
1.1.5. ISAT VPN Services
1.1.6. Mail Hosting Services
1.1.7. Fax (VAX) Services
1.1.8. Network Administration and Maintenance Services
1.2. Before providing a service to a customer, Mitsol enters into a Service Agreement with that customer for the Services that the Customer desires to obtain from Mitsol, which Service Agreement incorporates these Standard Terms and Conditions.
2. PAYMENT TERMS AND CONDITIONS
2.1. The amounts payable by the Customer are as set out in the Service Agreement.
2.2. The amounts payable are exclusive of Value-Added Tax.
2.3. Save for the initial payment, and subject to the Service Agreement, all monthly amounts payable by Customer must be paid monthly in advance on or before the first day of the month for which payment is due, and all other amounts payable must be paid within 30 (thirty) days of the date of the invoice.
2.4. All payments must be made in South African Rands, free of exchange or deduction, by debit order unless otherwise agreed in writing.
2.5. If the Customer fails to make any payment on the due date, Mitsol may, without prejudice to any of its other rights, suspend the performance of its obligations in terms of the Service Agreement, and shall be entitled to charge the Customer interest on the overdue amount from the due date to the date of actual payment at the rate of 2% (two percent) above the then current overdraft interest rate being charged by MITSOL’s bankers plus any additional costs incurred by Mitsol as a result of Customer’s failure to make payment on the due date.
2.6. Mitsol may adjust the amounts payable by the Customer in terms of this Agreement to reflect any increase in the cost to Mitsol in providing the Services which is due to any factor, including those beyond the control of Mitsol, including without limitation, foreign exchange fluctuations, increased costs of third party services, alteration of duties, surcharges, taxes, rates or levies, increased costs of labour, materials or manufacture, changes in delivery dates, quantities or specifications which are required by the Customer or delay caused by any instruction of the Customer.
2.7. The Customer may not withhold payment of any amount payable in terms of the Service Agreement to satisfy any claim against Mitsol arising from this or any other agreement, and may not offset any amount payable in terms of the Service Agreement against any amount owing to it by Mitsol in terms of this or any other Agreement.
2.8. In the event that any goods, including but not limited to computer equipment, modems, other hardware or software, if applicable, have been provided to the Customer in terms of this Service Agreement, reservation of same is strictly reserved until such time as all amounts payable in terms of this Service Agreement have been duly paid by the Customer for the full duration of this Service Agreement.
2.9. In the event that any once-off set-up fee is waived as a result of signing this Service Agreement (if applicable) and this Service Agreement is thereafter terminated prior to the expiration of the full duration, the Customer shall become liable for the payment of the aforementioned set-up fee, in addition to any other obligations contained elsewhere in this Service Agreement.
3. CUSTOMER’S OBLIGATIONS
3.1. The Customer must ensure that it has all of the relevant licences or permits required for it to use the Services and that the use of the Services is in accordance with all applicable laws, and the Customer accordingly indemnifies Mitsol and holds it harmless against any claims of prohibited activities conducted by the Customer or its users.
3.2. The Customer must acquire, maintain, and pay for an appropriate technology environment, including all required hardware and software duly configured in order for Mitsol to provide the Services to the Customer.
3.3. The Customer shall not make any omission or take any action that directly or indirectly:
3.3.1. damages MITSOL’s network or facilities;
3.3.2. impairs or precludes Mitsol from being able to provide the Services in a professional manner;
3.3.3. constitutes an abuse or malicious misuse of the Services provided by Mitsol; or
3.3.4. is calculated to have any of the above-mentioned effects.
3.4. In the event that Mitsol incurs any expense in remedying the effects the acts or omissions referred to in clause 3.3, the Customer must on demand reimburse Mitsol in the amount necessary to cover such expense.
4.1. The Service Agreement shall endure from the date of signature of the last party signing, either for a period of 12 (twelve), 24 (twenty four) or 36 (thirty six) months, at the election of the Customer in the Service Agreement, and thereafter shall be renewed automatically on the anniversary date, for further periods of 12 (twelve), 24 (twenty four) or 36 (thirty six) months, as the case may be, unless either party gives 3 (three) months’ written notice prior to the anniversary of the commencement date of its intention not to renew the Service Agreement.
4.2. In the event of termination of the Service Agreement prior to the conclusion of its full term, the Customer will be liable immediately to pay the entire amount of the fees set out in the Service Agreement for the balance of the term of the Service Agreement.
5. WARRANTY FOR FITNESS
5.1. Mitsol makes no representations or warranties whatsoever, whether express or implied, to the Customer as to the fitness of the Services for any purpose whatsoever.
5.2. The Services have been selected by the Customer and the Customer shall have no claim against Mitsol and it shall not be entitled to cancel the Service Agreement if it subsequently determines that Services are for any reason unacceptable to it.
5.3. The Customer understands and accepts that the Services offered may be location specific and accordingly Mitsol offers no warranty that the Services shall continue to operate for the purpose for which they were intended if the Customer changes location.
5.4. Notwithstanding Clause 5.3 above and subject to Clause 4.2 above, the Customer accepts that he/she will remain liable for the full duration of the Service Agreement in the event that the Service becomes unavailable as a result of the Customer changing location.
6. LIMITATION OF LIABILITY
6.1. Mitsol shall not be liable in terms of the Service Agreement, in delict, contract, warranty or otherwise for:
6.1.1. any indirect or consequential damages (including loss of data or loss of profits) suffered by the Customer or any other 3rd Party, and the Customer indemnifies Mitsol accordingly;
6.1.2. any amount that is more than the amount of revenue received from the Customer by Mitsol during the 3 (three) month period immediately preceding the cause of action arising, for any direct damage suffered by the Customer, and the Customer indemnifies Mitsol accordingly. The amount of revenue received by Mitsol, for the purposes of this clause, shall be the revenue received from the Customer in terms of the relevant portion of the Service Agreement to which the claim pertains (excluding any revenue in respect of Value-Added Tax) up to the date on which the cause of action arose.
7.1. If a party breaches a material provision of the Service Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 10 (ten) days of receipt of written notice requiring it to do so (or if it is not reasonably possible to remedy the breach within 10 (ten) days, within such further period as may be reasonable in the circumstances), then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it in law, including obtaining an interdict, to cancel the Service Agreement or to claim specific performance of any obligation whether the due date for performance has arrived, in any event without prejudice to the aggrieved party’s right to claim damages.
7.2. Mitsol is entitled to interrupt the provision of the Services if the Customer is in default of any of its obligations under the Service Agreement. Under no circumstances may the Customer cancel the Service Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Mitsol, its servants, its agents or any other persons for whom it may be liable in law, if Mitsol interrupts the provision of the Services.
7.3. A certificate of indebtedness issued under the hand of any director or manager of Mitsol, whose authority or appointment it shall not be necessary to prove, in respect of any indebtedness of the Customer, shall be prima facie evidence of the Customer’s indebtedness to Mitsol for the purpose of obtaining a judgement or order against the Customer from any competent court.
7.4. Mitsol shall be entitled to cancel this Service Agreement immediately and without notice to the Customer, in the event the Customer is sequestrated, placed into liquidation (provisional or final) or goes into business rescue.
7.5. Notwithstanding any termination of this Service Agreement by Mitsol in terms of Clause 7.4 above and subject to Clause 4.2 hereof, the Customer shall be liable for the remainder of the full duration of this Service Agreement.
8. NO ASSIGNMENT
The Customer shall not be entitled to cede, assign, or delegate any of its rights and obligations under the Service Agreement to any third party, unless otherwise agreed in writing by MITSOL.
Mitsol shall be entitled, without prior notice to the customer, to engage or appoint a subcontractor to perform any of its obligations in whole or in part, and to assign or delegate any of its rights and obligations, under the Service Agreement.
10.1. Any information disclosed by Mitsol in negotiating the Service Agreement or arising from the implementation thereof, shall be treated as confidential by the Customer and shall not be divulged without the prior written consent of Mitsol unless otherwise required or permitted by law.
10.2. All information referred to in clause 10.1 shall be returned to Mitsol on termination of the Service Agreement.
10.3. The provisions of this clause are severable from the rest of the Service Agreement and shall remain in effect even if the Service Agreement is terminated for any reason.
For the duration of the Service Agreement and for a period of 1 (one) year following the termination thereof, the Customer shall not directly or indirectly either for itself or as agent for another party, persuade, induce, solicit, encourage or procure any employee or representative of Mitsol to terminate his or her employment or relationship with Mitsol or to furnish to any third party any information concerning any employee or representative of Mitsol that may result in such employee or representative being employed by the Customer or such third party.
12. FORCE MAJEURE
If force majeure (“the interrupting circumstances”) causes delay in or failure or partial failure of performance by a party of its obligations hereunder, excepting payment, the Service Agreement shall be suspended for the period during which the interrupting circumstances prevail. If the force majeure affects any material part of the Service Agreement for a period of 30 (thirty) days or more, the affected party shall be entitled on 30 (thirty) days’ written notice to cancel the Service Agreement. Relief from liability by both parties for non-performance due to the force majeure shall commence on the date upon which the party seeking relief gives notice of the interrupting circumstance and shall terminate on the date upon which it ceases and notice shall be provided thereof within 7 (seven) days. Force majeure shall include any act over which the affected party has no control.
13.1. A dispute that arises in regard to the Service Agreement (other than where an interdict or urgent relief is sought from a court of competent jurisdiction), shall be submitted to and decided by arbitration.
13.2. The arbitration shall be subject to the arbitration legislation for the time being in force in South Africa.
13.3. The arbitrator shall be agreed by the parties, and should the parties fail to agree within 7 (seven) days, then appointed by the Arbitration Foundation of Southern Africa.
13.4. The arbitration shall be held at Durban.
13.5. The arbitrator shall have the power to give default judgment if any party fails to make submissions on the due date or fails to appear at the arbitration.
13.6. The arbitrator’s decision shall be final and binding and must be provided in writing, and either party may have the award made an order of a court of competent jurisdiction.
13.7. The provisions of this clause are severable from the rest of the Service Agreement and shall remain in effect even if the Service Agreement is terminated for any reason.
14. GOVERNING LAW
The Service Agreement shall be governed by South African law.
In the event that any of the terms of the Service Agreement are found to be invalid, unlawful, or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
16. DOMICILIUM CITANDI ET EXECUTANDI
The parties choose as their domicilia citandi et executandi for all purposes under this Agreement the addresses as set out on the first page of the Service Agreement. Either party may by notice to the other party change its domicilia citandi et executandi.
17. EFFECT OF TERMINATION
The termination of the Service Agreement shall not affect the provisions of the Service Agreement that of necessity must continue to have effect after such termination notwithstanding that the clause may not expressly provide for this.
18. WHOLE AGREEMENT
18.1. The Service Agreement (read with these Standard Terms and Conditions) constitutes the whole agreement between the Parties. No amendment or cancellation of the Service Agreement or any provision thereof shall be binding unless recorded in a written document signed by the Parties.
18.2. Mitsol may, at any time, unilaterally revise and/or amend these Standard Terms and Conditions, without specific notice to the Customer. Mitsol undertakes to publish the revised Standard Terms and Conditions on its website at least 30 (thirty) days before the revisions take effect.
19. RULE OF CONSTRUCTION
The rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply.
No extension of time or waiver or relaxation of any of the provisions of the Service Agreement shall in any way prejudice either party in respect of its rights under the Service Agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with the Service Agreement.
The Service Agreement may be executed in any number of counterparts each of which shall be deemed to be an original and all such counterparts taken together shall be deemed to constitute one and the same document.