Terms and Conditions

TALK TALK BUSINESS STANDARD COMMUNICATIONS

TERMS AND CONDITIONS

1. APPLICATION

1.2 The Agreement shall become binding upon the Parties as of the Subscriber’s signature of the Service Order.

1.3 These Standard Communications Terms and Conditions may from time to time be updated or varied.  The version that forms part of the Agreement shall be the prevailing version, but both Parties may mutually agree to replace this version with any updated or varied version, save for the provision of clause 19.6.

1.4 Where there is any conflict between the Service Order or Service Level Agreement and these Standard Communications Terms and Conditions, the former shall prevail.

1.5 Applicable law: the Agreement shall be interpreted and implemented in accordance with the laws of the Republic of South Africa.

1.6 References to persons shall include natural and juristic persons and references to either Party shall include such Party’s successors or permitted assigns.

2. DEFINITIONS

In the Agreement, unless inconsistent with or otherwise indicated by the context, the following terms shall bear the following meanings:

2.1 Agreement The Subscriber Contract, Service Order, the Service Level Agreement, this Standard Communications Terms and Conditions, together with all annexures attached thereto.

2.2 Authorised User An individual Subscriber or a Subscriber Site connecting to the Talk Talk Business platform.

2.3 Business Day Monday to Friday, excluding public holidays in the Republic of South Africa;

2.4 Business Hours 08h00 to 17h00 (C.A.T) on Business Days.

2.5 Calendar Days Monday to Sunday, including public holidays.

2.6 Charges The amounts to be paid by the Subscriber to Talk Talk Business in respect of any monthly recurring Services, Minutes, other services or Equipment procured pursuant to a Service Order.

2.7 Commissioning of the Services also Commissioning The completion of installation of Talk Talk Business Equipment or Virtual Services initiating the availability of the Communication Services to the Subscriber.

2.8 Communication Services also Services The services provided via the Talk Talk Business System as described in the Service Order and the relevant manuals.

2.9 Connectivity The physical and logical interconnection to the Talk Talk Business System (including via third party data telecommunications networks) as may be specified by Talk Talk Business to access and use the Communication Services, including the type and bandwidth of the relevant access circuit.

2.10 Effective Date Notwithstanding the date of signature on the Service Order, the effective date stipulated on such Service Order.  Failing such stipulation, the date of Commissioning of the Services.

2.11 EFT Electronic Fund Transfer.

2.12 Equipment All Handsets, routing devices, PBX and other hardware provided by Talk Talk Business for the purposes of making the Communication Services available to the Subscriber, which includes any software thereon.

2.13 Error A failure by the Communication Services or Licensed Technology to conform in all material respects to the manuals relevant thereto, but excludes all Excluded Defects.

2.14 Excluded Defect A defect in the Communication Services or Licensed Technology caused by any of the following:

i. Connectivity or any equipment or software not provided by Talk Talk Business;

ii. Abuse, accident, misuse, user (whether authorised or not) error, negligence or a user’s failure to comply with the manuals;

iii. Modification, adjustment or alteration of the Equipment or Talk Talk Business Software by persons other than Talk Talk Business employees or a duly appointed contractor of Talk Talk Business;

iv. Failure by Subscriber to promptly implement any upgrade or any recommendation in respect of or as solution to faults advised by Talk Talk Business;

v. Any breach by Subscriber of any of its obligations hereunder or under the relevant Service Order; or

vi. Force Majeure.

2.15 Force Majeure Any event known as an Act of God or natural disaster, including, but not limited to, earthquake, explosion, extreme weather, fire, flood, hurricane, or storm; war (whether declared or not), invasion, hostilities, act of foreign enemies, civil war, civil disturbance, usurped authority, insurrection, rebellion, revolution, riots, military or usurped power, confiscation, nationalisation, or terrorist activities; government sanction, blockage, embargo or requisition; labour dispute, strike, lockout or interruption; or failure of electricity or telephone infrastructure services, accidents, nuclear incident, sabotage, unforeseeable acts (including failure to act) of any governmental authority; or epidemics.

2.16 Helpdesk Talk Talk Business’s helpdesk in respect of the Communication Services described in the Service Order.

2.17 Initial Period The period as indicated on the Service Order, commencing on the Effective Date.  This period is the minimum period of any Agreement, varying in duration of two (2) years, one (1) year or ninety (90) days.

2.18 Invoice The invoice reflecting the amount of payment owed by Subscriber to Talk Talk Business in respect of Commissioning, Equipment, Monthly Services, Minutes and other services.

2.19 Installation The installation of any necessary Equipment at a Subscriber Site or provision of Services.

2.20 Intellectual Property Any and all documents, copyright, designs, patents, trademarks, trade secrets, technology, know-how, processes and techniques proprietary to the specific Party.

2.21 Licence The national data and telecommunications licence granted by ICASA to Talk Talk Business to provide a national data and telecommunication service by means of a network.

2.22 Licensed Technology Any Equipment, Talk Talk Business Software and manuals made available by or on behalf of Talk Talk Business in terms of the Service Order.

2.23 Month A calendar month running from the first to the last day of any given month.

2.24 Parties Talk Talk Business and the Subscriber.  Party refers to either of them as so determined by the context.

2.25 Person Through Any agent, consultant, contractor, director, employee, or representative of either Party.

2.26 Service Order The document that lists the particular Services requested/ordered by the Subscriber from Talk Talk Business. If the Subscriber requires additional services then a new Service Order will be created for that particular product only.

2.27 Services Any and all services provided by Talk Talk Business to Subscriber in terms of a Service Order including without limitation, Communication Services, Support Services, Installation, training and support other than for errors.

2.28 Subscribers Those persons who are customers of Talk Talk Business and who obtain the Products and Services from Talk Talk Business in return for payment, in terms of the Agreement, whether such Products and Services are supplied alone or as part of any other basket of products or services.

2.29 Subscriber Contract The form containing the requisite details of the Subscriber which will provide for one or more Subscriber Sites and set out the Services Talk Talk Business will implement, that has been duly accepted and signed by the Subscriber in accordance with the terms thereof.

2.30 Subscriber Site Any location within the Republic of South Africa at which Equipment or Licensed Technology is agreed to be installed by Talk Talk Business for the benefit of the Subscriber in terms of the Agreement.

2.31 Subscriber System Any system used by Subscriber or an Authorised User for the purposes of accessing and using the Communication Services, comprising the hardware, network connections, database management system software, application software and operating system software, including the Connectivity and the Equipment.

2.32 Support Services The support services provided by Talk Talk Business to Subscriber in respect of the Communication Services as specified in the Service Order and the relevant manuals.

2.33 Talk Talk Business Is Talk Talk Business (pty) ltd currently having its principal place of business at CSS House, 28 Augrabies Road, Waterfall Office Park, Midrand.

2.34 Talk Talk Business Software The software programs made available to the Subscriber by Talk Talk Business in terms of the Agreement, including software that may be installed on Subscriber Systems and handsets.

2.35 Talk Talk Business System Any equipment, software and communications links used by Talk Talk Business to provide the Services, excluding all Subscriber Systems.

2.36 VAT Value Added Tax as provided in terms of the Value Added Tax Act 89 of 1991, as amended.

GENERAL TERMS AND CONDITIONS

Accounts and Subscriptions in Respect of Services

Talk Talk Business has structured three payment options for its Subscribers.

1.1 Each Subscriber to Talk Talk Business Services will be given an account with Talk Talk Business upon signing a Subscriber Contract. 

TALK TALK BUSINESS STANDARD COMMUNICATIONS

TERMS AND CONDITIONS

1.2 Prepaid Subscribers shall specify a prepaid minutes amount in their Subscriber Contract, whereupon Talk Talk Business shall send to them an Invoice for their specified prepaid minutes amount, which upon payment shall be allocated to their account.

1.2.1 An Invoice will be sent on the 1st (first) of the month for the following month’s monthly recurring service Charges and payment of this amount must be made by the 7th (seventh) day of any given month.

1.2.2 To prevent interruption of the Service, the Prepaid Subscriber must ensure there are sufficient funds in their account for both their prepaid minutes and monthly recurring services  for the Services to be available.

1.2.3 A Prepaid Subscriber shall effect payment to Talk Talk of its Charges upon ordering the Equipment and Services or within the period stipulated in a signed Service Order, in any event prior to receiving same.

1.3 Prepaid with Auto Top-up Subscribers shall specify a credit limit in their Subscriber Contract, whereupon Talk Talk Business shall send to them an Invoice for their specified credit limit, which upon payment shall be allocated to their account.

1.3.1 An Invoice will be sent on the 1st (first) of the month based on the actual usage for the previous month and the following month’s monthly recurring service Charges and payment of this amount must be made by the 7th (seventh) day of any given month.

1.3.2 Upon payment of the monthly Invoice for the actual usage and monthly recurring service Charges, the Subscriber’s Account will again reflect their credit limit.  This Subscriber shall not be able to utilise the Services in excess of their specified credit limit.

1.4 Post-Paid Subscribers shall specify a credit limit and pay to Talk Talk Business a holding deposit of this amount.

1.4.1 An Invoice will be sent to the Subscriber on the 1st (first) of the month for the previous month’s actual usage and the following month’s monthly recurring service Charges and payment of this amount must be made by the seventh (7th) day of any given month.

1.4.2 The Subscriber’s deposit will be held until Talk Talk Business’s Services are cancelled or terminated, whereupon the holding deposit shall be refunded by Talk Talk Business to the Subscriber, less any amounts still owing.

2.37 Invoices shall be sent by Talk Talk Business to the Subscriber at the e-mail address supplied by the Subscriber in the Subscriber Contract.  Onus shall be on the Subscriber to check the Invoice in order to ensure that its contents are correct.  Unless a query is raised in respect of the contents of the Invoice within seven (7) days from the date thereof, the contents of the Invoice shall be deemed to be correct.

2.38 For the duration of this Agreement, any migration from one service to another shall be subject to Talk Talk Business’s approval in its discretion and Talk Talk Business shall be entitled to levy Charges for migrations, but which Charges may not exceed the amounts approved or fixed by the responsible regulatory authority from time to time.

Payments

1.5 All Invoices shall be paid by Subscriber within seven (7) calendar days of the date of Talk Talk Business’s Invoice.

2.39 Unless otherwise agreed to by Talk Talk Business in writing, the Subscriber shall effect payment to Talk Talk Business:

2.39.1 in South African Rand without withholding, deduction or set-off for whatever reason;

2.39.2 for Installation on presentation of Invoice and against Commissioning of the Services;

2.39.3 via an EFT where the Subscriber shall have discharged its obligations only upon payment being received by Talk Talk Business; Or

2.39.4 via debit order for Prepaid and Post-Paid Subscribers.

1.6 All upfront Charges applicable to the procurement and installation of Licensed Technology may be invoiced immediately upon the ordering thereof.

2.40 Notwithstanding the provisions of clause 4.2, Talk Talk Business may at any time on reasonable written notice to the Subscriber vary its invoicing and payment procedures and requirements.

2.41 Unless otherwise agreed to in writing, no payment obligation will be cancellable and no payment made under a Service Order/Invoice will be refundable.

2.42 In the event that Talk Talk Business requires payment for the Services provided to the Subscriber, the Post-Paid Subscriber will commit a breach of the Agreement if the Subscriber:

2.42.1 Fails to honour the payment without the written consent of Talk Talk Business.

2.42.2 Provides Talk Talk Business with an incorrect payment amount.

1.7 In the event of such breach, Talk Talk Business reserves the right to allocate moneys toward any unpaid amount from the Holding Deposit.

2.43 Unless specifically stated otherwise, all prices and charges set out in the Agreement and any price list are exclusive of VAT and any other applicable tax, tariff, rate, levy, duty and any other governmental charges or expenses payable in respect of the Services/Equipment, the cost of which shall vest with the Subscriber.

2.44 Interest In the event of the Subscriber failing to effect payment of any amount owing by them to Talk Talk Business on due date, then without derogating from Talk Talk Business’s rights in terms of the Breach Clause, the Subscriber shall be liable to pay interest to Talk Talk Business on the amount so owing at the prime interest rate as published from time to time by Standard Bank Limited plus 2% (two percent), from due date to date of payment.

2.45 Where payment of any amount due is not made on its due date, Talk Talk Business shall be entitled, without prejudice to any other right or remedy it may have, to remove any Licensed Technology supplied by Talk Talk Business or suspend the provision of Services or such portion thereof as Talk Talk Business in its sole discretion chooses (including by rendering Licensed Technology temporarily inoperable) until all payments in arrears have been paid in full.

3. Commencement and Termination

1.8 The Agreement shall commence on the Effective Date and shall, subject to the provisions of the breach clause and or any other applicable provision, continue for the full Initial Period and thereafter continue on a month to month basis unless terminated by the Subscriber by giving to Talk Talk Business a written notice of termination of not less than 90 days, which termination will take effect upon expiry of the 90-day notice period.

3.1 The Subscriber may not cancel or terminate the Agreement or demand reimbursement for any damages of whatever nature as a result of the Subscriber’s relocation to an area outside of Talk Talk Business’s coverage.

3.2 In the event of the Subscriber terminating the Agreement, they shall be liable for the remainder of the Initial Period or notice period, as the case may be.

3.3 The Service Order made by the Subscriber is an offer made by the Subscriber to Talk Talk Business and will be considered once received by Talk Talk Business.  Talk Talk Business’s acceptance of the offer shall consist of the Commissioning of Services, upon which the Agreement shall become binding as between Talk Talk Business and the Subscriber whether or not the Subscriber was notified of the acceptance of the offer.  The Subscriber hereby expressly dispenses with notification of acceptance of the offer by Talk Talk Business.

Effect of Termination

1.9 The termination or expiry of any one Service Order will not affect the validity of any other Service Order.

1.10 On termination of a Service Order for any reason, all amounts applicable to Services rendered prior to termination shall become due and payable immediately.

1.11 Upon termination, cancellation or expiry of a Service Order, –

1.11.1 Subscriber will cease using all the Licensed Technology acquired in terms of the affected Service Order and promptly return to Talk Talk Business any and all tangible elements of such Licensed Technology, save for any Equipment in which ownership passed to Subscriber;

1.11.2 The provision of all Services under such Service Order may be terminated forthwith including rendering the relevant Licensed Technology inoperable; and

1.11.3 Subscriber will deliver to Talk Talk Business, or at Talk Talk Business’s option destroy, all originals and copies of Talk Talk Business’s proprietary materials in its possession or under its control.

1.12 The expiry or termination of the Service Order shall be without prejudice to any rights of the Parties accrued as at the date of such expiry or termination.

1.13 Any termination of the Agreement shall not affect the enforceability of any provisions which have been specified or are by their nature required to operate after expiry or termination.

4. Termination without Cause

1.14 Without prejudice to any other rights at law or set out in the Agreement, Talk Talk Business may terminate the Agreement upon written notice to the Subscriber in the event that ICASA or any other authority revokes, terminates or amends (insofar as it affects the Subscriber) Talk Talk Business’s License for any reason whatsoever. 

TALK TALK BUSINESS STANDARD COMMUNICATIONS

TERMS AND CONDITIONS

5. Suspension

5.1 Talk Talk Business may at any time, without notice to the Subscriber and in any manner whatsoever, suspend the Subscriber’s access to the Services in the event that:

5.1.1 Any modification, maintenance or remedial work is required to be undertaken pertaining in any manner whatsoever to the Services or the Equipment.  Talk Talk Business will endeavour to inform the Subscriber timeously in the event of planned maintenance.

5.1.2 The Subscriber fails to perform any of their obligations or breaches any term of the Agreement, in which event Talk Talk Business may also suspend the Subscriber’s use of the Equipment and Services.

5.2 Talk Talk Business reserves the right to require the Subscriber to effect payment of any applicable reconnection charges pursuant to restoration of Services suspended in the circumstances contemplated in clause 8.1.2 above.

5.3 In the event that the Subscriber’s access to the Services is suspended, the Subscriber shall still be liable for the monthly port and support fees charges during any such period of suspension.

6. Installation of Talk Talk Business Equipment, Software and Supply of Services

6.1 The order placed by the Subscriber with Talk Talk Business is subject to Talk Talk Business’s approval in its sole discretion.  If Talk Talk Business does not approve the order, it shall not be under any obligation to the Subscriber to give reasons for its decision.

6.2 Talk Talk Business shall utilise its best endeavours to promptly comply with any supply, delivery or installation requirements recorded in the Service Order but shall not be liable to the Subscriber in the event that same is delayed or cancelled, for whatever reason.

6.3 Wherever Talk Talk Business Persons are required to supply, deliver or install any equipment or software at a Subscriber Site, Subscriber undertakes to provide such person(s) with such assistance as may be required by Talk Talk Business in this regard.

6.4 Subscriber will be responsible for testing the Communication Service as implemented to ensure that it meets with the requirements of Subscriber.  Subscriber will notify Talk Talk Business’s Helpdesk within 72 hours of any Errors that it detects during such testing and Talk Talk Business will provide Support Services in respect of such Errors at no charge.

6.5 Should the Subscriber not notify Talk Talk Business of any Errors within 72 hours, Talk Talk Business shall accept that the Commissioning meets with the Subscriber’s requirements and the applicable billing will commence.  Any changes required after these 72 hours will be invoiced at standard rates.

6.6 Subscriber shall be responsible for obtaining all necessary information, approvals, authorities and consents as may be required by any competent authority to permit its compliance with the terms of the Service Order and its use of the Communication Services, including as may be necessary to allocate telephone numbers to Authorised Users and otherwise to permit Authorised Users to access and use the Communication Services.  The Subscriber hereby indemnifies Talk Talk Business against any claim, liability or loss suffered by the Subscriber by reason of such information, approvals, authorities and consents not having been obtained.

6.7 Talk Talk Business shall not be liable for matters including, but not limited to, any additional labour or equipment costs such as cabling or plug points, unless same is provided for in the relevant Service Order.

6.8 The Subscriber acknowledges that Talk Talk Business may have to change or alter the Equipment to remain updated with technological evolution/progress and will allow same for the provision of the Services.

Subscriber Obligations in Respect of Talk Talk Business Services

6.9 In order to enable Talk Talk Business to provide the Services, Subscriber agrees to:

6.9.1 Provide assistance, input, support and cooperation and shall, to the extent required by Talk Talk Business liaise regularly with Talk Talk Business to ensure that it is in a position to provide the Services;

6.9.2 Render all decisions and approvals required as soon as is reasonably possible, so as not to delay or impede the performance of the Services;

6.9.3 Provide Talk Talk Business with reasonable access to Subscriber’s computer systems to enable Talk Talk Business to comply with its obligations under the Service Order, including remote network access and direct physical access;

6.9.4 Notify Talk Talk Business as soon as reasonably possible of any issues, concerns or disputes with respect to the Services;

6.9.5 Be responsible for the accuracy and completeness of all data and information provided to Talk Talk Business for the purposes of Talk Talk Business providing the Services;

6.9.6 Provide electricity services, telephone services and other connectivity (including access to computer networks and the Internet) at each Subscriber Site; and

6.9.7 Make available sufficiently qualified and authorised Subscriber personnel, with appropriate access rights and permissions, to assist Talk Talk Business if required.

7. Ownership and Risk

1.15 Talk Talk Business reserves all rights not expressly granted in these terms or the Service Order.  Subscriber acknowledges that the rights granted to it in respect of the Talk Talk Business Software and manuals are limited to the usage and licensing rights and that Talk Talk Business and its suppliers shall remain solely entitled to all ownership rights in the Talk Talk Business Software and manuals, including all Intellectual Property Rights represented by or incorporated therein.

1.16 Subscriber undertakes that it shall not in any manner whatsoever represent that it is the owner or has any interest, other than as licensee in terms hereof, in the Talk Talk Business Software and manuals and shall not take any action to impute any right, title or interest of Talk Talk Business in and to the Talk Talk Business Software or manuals.

7.1 Notwithstanding delivery thereof to the Subscriber, and with reference to the agreement contained in the Service Order in respect of ownership of the Equipment, all rights of ownership in and to any Equipment:

7.1.1 Supplied by Talk Talk Business on a loan or rental basis shall at all times remain vested in Talk Talk Business or its suppliers;

7.1.2 Purchased by the Subscriber from Talk Talk Business shall remain vested in Talk Talk Business or its suppliers until the Subscriber has made payment of the listed price in full to Talk Talk Business.

1.17 In the event that the Subscriber Site is leased by Subscriber, Subscriber will ensure that the landlord of such Subscriber Site is promptly notified of all Equipment that is located at such Subscriber Site that is owned by Talk Talk Business or its suppliers.

7.2 All the risk of loss or damage in and to:

7.2.1 All components of the Licensed Technology provided to Subscriber shall transfer to Subscriber upon delivery thereof.

7.2.2 The Equipment shall pass to the Subscriber upon delivery thereof and the Subscriber shall be liable for any and all loss, theft, destruction of or damage thereto, howsoever arising.

1.18 In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof, the Subscriber shall be obliged to pay to Talk Talk Business the cost of replacing and or making good the Equipment so damaged, lost, stolen or destroyed.

7.3 The Subscriber undertakes –

7.3.1 To notify Talk Talk Business immediately of any loss of or damage to the Equipment or part thereof or any failure of the Equipment to function.

7.3.2 Not to procure repair or maintenance of the Equipment by any third party without the prior written consent of Talk Talk Business or in any other manner tamper with the Equipment.

1.18.1 Not to implement any part or component for the Equipment that has not been supplied by Talk Talk Business or its designated suppliers.

1.18.2 To allow Talk Talk Business or anyone authorised by Talk Talk Business to inspect and examine the Equipment at all reasonable times.

1.18.3 To use Equipment only for the purpose for which it has been designed, and in accordance with Talk Talk Business’s reasonable instructions.

1.18.4 Cover Equipment by a comprehensive all-risks insurance policy in which the interest of Talk Talk Business or its Supplier has been noted, which will insure the replacement value of the Equipment.

Support Services

1.19 In return for payment of the relevant Charges, Talk Talk Business will provide Support Services in respect of Errors with the Communication Services in accordance with the terms of any applicable Service Order.

1.20 Support Services will be provided in respect of Licensed Technology only for as long as Authorised Users remain entitled to receive Communication Services using the relevant Licensed Technology under the Service Order.

Licensing

1.21 In return for payment of the relevant Charges and for the duration of the Service Order only, with effect from the Effective Date of the Service Order, Talk Talk Business grants to the Subscriber

TALK TALK BUSINESS STANDARD COMMUNICATIONS

TERMS AND CONDITIONS

a non-exclusive, non-transferable licence to permit the use of the Licensed Technology as provided and implemented by Talk Talk Business in terms of the Service Order to access the Communication Services.

Intellectual Property 

1.22 Talk Talk Business retains all right, title and interest in and to Talk Talk Business’s Intellectual Property.  The Subscriber retains all right, title and interest in and to the Subscriber’s Intellectual Property.

1.23 Neither Party shall be permitted to use the other Party’s Intellectual Property for the benefit of any entities except for the benefit of the Party to this Agreement without the written consent of the other Party, which may be withheld at either Party’s sole discretion.

1.24 Except as otherwise requested or approved by either Party, which approval shall be at either Party’s sole discretion, the Party using the Intellectual Property shall cease all use of the other Party’s Intellectual Property as of the effective date of any termination of this Agreement.

8. Limitation of liability

8.1 Talk Talk Business shall not be liable to the Subscriber for any direct loss or damage whatsoever suffered by the Subscriber in the event that:

8.1.1 Talk Talk Business fails for any reason whatsoever to supply, deliver or provide installation of any equipment either on the required date or at all; and or

8.1.2 The Services are interrupted, suspended or terminated for whatever reason; and or

8.1.3 Such loss or damage was caused by any negligent act or omission on the part of Talk Talk Business or any Person Through Talk Talk Business.

8.1.4 Talk Talk Business shall not be responsible for any loss or damage caused by third party suppliers.

1.25 Whether a claim is based on contract, delict, or statute, under no circumstances shall Talk Talk Business be liable for any consequential/indirect, incidental, extrinsic or special damages or losses (foreseeable or unforeseeable) of any kind, including without limitation, loss of: profits, income, goodwill, loss or corruption of data or software, loss of use, business interruption, procurement of substitute products or equipment or any other pecuniary loss arising out of a delay in delivery or reliance on the Services, arising in connection with the Service Order or these terms.

1.26 Talk Talk Business shall not be liable for any loss or damage of whatsoever nature arising out of or in connection with any breach of the Service Order or these terms by Subscriber or any act, omission, error or misrepresentation made by or on behalf of Subscriber or Persons Through Subscriber.

1.27 Neither Party shall be liable for any failure to fulfil its obligations under the Service Order if and to the extent that such failure is caused by Force Majeure, the failure of any institution whose consent is required for the performance of any obligation hereunder to provide such consent, or delays in the performance of its sub-contractor caused by any such circumstances as referred to in this clause, except where performance was possible at the time the obligation was due for performance.

Breach

8.2 If the Subscriber commits a breach of any of the terms or conditions forming part of the Agreement, and remains in default for a period of seven (7) Business Days after delivery to the Subscriber of a written notice (“notice of breach”) from Talk Talk Business calling for such breach to be remedied, Talk Talk Business shall be entitled forthwith and without further notice to the Subscriber to either terminate the Agreement or claim specific performance of all of the Subscriber’s obligations, including the immediate payment of all sums of money payable by the Subscriber, whether or not then due, in either event without prejudice to Talk Talk Business’s right to claim any damages as it may have suffered by reason of such breach or failure.

8.3 Without prejudice to the provisions of clause 16.1 above, Talk Talk Business may forthwith terminate the Agreement at any time by giving Subscriber written notice of such termination if –

1.27.1 A Subscriber fails to make payment of any charges on or before the due date for payment thereof; AND

1.27.2 within a 12-month period calculated from a notice of breach, the Subscriber receives a further two notices of breach; OR

1.27.3 in the event the Subscriber is sequestrated, liquidated or placed under judicial management, irrespective of whether any of the aforesaid are provisional or final, voluntary or compulsory.

8.4 Any termination pursuant to the preceding provisions of this clause shall be without prejudice to any claim Talk Talk Business may have against the Subscriber in respect of any prior breach of the terms and conditions of the Agreement by the Subscriber.

8.5 Without derogating from any other rights or remedies available to Talk Talk Business in terms of the Agreement or in law, in the event of the Agreement being cancelled by the Subscriber (for whatever reason) prior to the expiry of the Initial Period or notice period, or in the event of Talk Talk Business electing to terminate the Agreement pursuant to any breach by the Subscriber which entitles Talk Talk Business to cancel, the Subscriber shall be liable to Talk Talk Business and hereby agrees to pay on demand, the full charges payable to Talk Talk Business for the remainder of the Initial Period or any notice period, as the case may be.

9. Blacklisting Clause

1.28 Talk Talk Business may, without prejudice to any other rights which it may have under the Agreement or at law:

9.1 Notify credit bureaus of the Subscriber’s default; and

9.2 Blacklist the Equipment to prevent further use thereof.  Once the terminal has been blacklisted, Talk Talk Business shall be entitled to remove or recover the Equipment from the site where it is stationed without notice to the Subscriber, save for where the Subscriber has acquired ownership thereof.

10. Consent/Authority

10.1 Neither Party will make or issue any formal or informal announcement or statement to the press in connection with the Service Order without the prior written consent of the other Party, provided that either Party may name the other of them as a customer or supplier, as applicable, and disclose only the general nature of the overall arrangement between the Parties.

10.2 The Subscriber hereby consents/authorises Talk Talk Business to disclose the Subscriber’s name, address and personal details to any party whenever it is reasonably necessary for Talk Talk Business to properly perform its functions or protect its interests, or for the purpose of enabling Talk Talk Business to provide emergency Services to the Subscriber, or directory or repair services.

10.3 The Subscriber hereby consents/authorises Talk Talk Business at any time, without notice to the Subscriber, to obtain information about the Subscriber’s profile from any authorised and registered credit reference agency in the Republic of South Africa.

10.4 The Subscriber consents/authorises Talk Talk Business to provide regular reports in respect of Subscriber’s payment conduct to any authorised and registered credit reference agency in the Republic of South Africa.

10.5 The Subscriber consents/authorises receiving marketing, promotional updates and client satisfaction surveys from Talk Talk Business.

11. General

11.1 Calculation of Days Unless specifically stated otherwise, when any number of days are prescribed in any terms of the Agreement, same shall be calculated as exclusive of the first and inclusive of the last day.  Where such last day is not a Business day, the last day shall be the next business day.

11.2 Certificate Verification A certificate under the hand of any Manager of Talk Talk Business certifying the sum of any amount owing by the Subscriber to Talk Talk Business shall be prima facie proof of its contents and sufficient proof for the purposes of enabling Talk Talk Business to obtain any judgment or order against the Subscriber.

11.3 Insolvency Should the Subscriber be placed under administration, liquidation or sequestration proceedings, or suffer any other legal disability which will negatively affect the Subscriber’s ability to make payment to the Service provider, the Subscriber is required to notify Talk Talk Business in writing within 7 (seven) days of occurrence of the afore-mentioned events.

11.4 Assignment Cession Delegation The rights and obligations of the Subscriber in terms of the Agreement may not be assigned, ceded, delegated or otherwise transferred to any third party, without the prior written consent of Talk Talk Business.  The rights and obligations of Talk Talk Business in terms of the Agreement may be assigned, ceded or delegated by it to any successor of all, substantially all or part of the business or assets of Talk Talk Business as it pertains to the Communication Services, provided that Talk Talk Business shall notify Subscriber of 

TALK TALK BUSINESS STANDARD COMMUNICATIONS

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such event within a reasonable time of it occurring.

11.5 Entire Agreement  The documents pertaining to the Agreement constitute the entire agreement between Subscriber and Talk Talk Business in respect of the subject matter of such Agreement and no agreements, representations or warranties between the Parties other than those set out therein are binding on the Parties.

1.29 Variation Talk Talk Business may change the terms and conditions of this agreement as a result of changes in laws, regulations, taxes, the terms and conditions of the License issued to it, the terms and conditions of any agreement between the license holder and Talk Talk Business or any circumstances or events similar to the aforegoing.  Talk Talk Business shall notify the Subscriber of any changes as contemplated herein in writing.

11.6 Contra Proferentum Excluded No rule of construction that an agreement shall be interpreted against the Party responsible for its drafting or preparation shall apply to any terms of the Agreement.

11.7 No Agency or Partnership Nothing in a Service Order shall be construed as creating any form of agency or partnership between the Parties and neither Party shall have any authority to bind, make representations or incur any liability on behalf of the other.

1.30 Jurisdiction The Parties hereby agree and consent that, notwithstanding that the amount of its claim or the nature of the relief sought may exceed the jurisdiction of the Magistrate’s Court, either Party shall be entitled to choose to institute action out of the Magistrate’s Court, but will not be bound to institute out of same.

1.31 Notwithstanding the provision of clause 19.9, Talk Talk Business shall be entitled to institute any action or other proceedings arising from this Agreement in any other court having jurisdiction over the Parties.

1.32 Costs Each Party shall be responsible for its own legal and other costs relating to the negotiation of the Service Order.  In the event of the Customer breaching any of its obligations or failing to timeously make payment of any amount to Talk Talk, the Customer agrees to pay, and shall be liable to pay, all legal costs incurred by Talk Talk in enforcing its rights in terms of this Agreement on the attorney/own client scale including collection charges and tracing agent’s fees.  The Parties agree that any costs awarded will be recoverable in accordance with the applicable court tariff, determined on an attorney-and-own-client scale.

WARRANTIES

1.33 Warranty of Authority Each Party warrants that it has the legal right and full power and authority to execute the Agreement.

1.34 Disclaimer of Warranties Each Party hereby excludes and disclaims all warranties, whether expressed or implied, statutory or otherwise, except those warranties expressly made in terms of the Agreement.  Without limiting the aforegoing, Talk Talk Business disclaims –

1.34.1 that the Communication Services and Licensed Technology are free of Errors and any other defects; and

1.34.2 any warranty that the Communication Services or Licensed Technology will meet with the requirements of Subscriber or that it will be of satisfactory quality or fit for a particular purpose.

11.8 No Representations Neither Party may rely on any representation which allegedly induced that Party to enter into the Agreement, unless the representation is recorded in the Agreement.

11.9 Variation, Cancellation and Waiver No amendment, adding to, deleting from, varying, or cancelling the Agreement, and no waiver of any rights under the Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.

11.10 Whole Agreement This Agreement, inclusive of the documents as set out in the definition, where necessary and signed by the Parties, contains all the express provisions agreed on by the Parties with regard to the subject matter of agreement between the Parties and the Parties waive the right to rely on any tacit or implied term/s not contained in their agreement.

1.35 Neither Party shall be stopped (prevented) from exercising its rights arising out of a breach, despite the fact that the aggrieved Party may have elected or agreed on one or more previous occasions not to exercise the rights arising out of any same/similar breach or breaches.

1.36  Non-exclusivity Talk Talk Business expressly reserves it full right to license any technology or to provide products or services of any kind or nature whatsoever to any person or entity as Talk Talk Business in its sole discretion deems appropriate.

1.37 Non-solicitation During the currency of the Agreement and a period of 1 (one) year following its termination, neither Party may directly or indirectly solicit or offer employment to any of the personnel of the other Party, and shall not employ or contract in any manner with any personnel of the other Party.  Each of the Parties acknowledge that by reason of and in consideration for the benefits accruing to them under the Agreement this restraint is reasonable as to duration, area and scope of operation.

1.38 Severability If the whole or any part of a provision of the Agreement is void or voidable by either Party, unenforceable or illegal, the whole or that part (as the case may be) of that provision, shall be severed, and the remainder of the Agreement shall have full force and effect, provided such severance does not alter the nature of the Service Order or Agreement.

12. Domicilium and Notices

1.39 Talk Talk Business hereby chooses its domicilium citandi et executandi (“domicilium”) for all purposes their physical address as CSS House, 28 Augrabies Road, Waterfall Office Park, Midrand and the Subscriber hereby chooses its domicilium citandi et executandi (“domicilium”) for all purposes their physical address as set out in the Subscriber Contract.

12.1 Postal Address Any written notice in connection with the Agreement must be addressed –

1.39.1 In the case of Talk Talk Business to: Talk Talk Business (Pty) Ltd PO Box 7539, Halfway House, Midrand, 1685, marked for the Attention of the LEGAL DEPARTMENT.

1.39.2 In the case of the Subscriber: to the postal address and fax number set out in the Subscriber Contract to which these standard terms and conditions apply, and marked for the attention of the Subscriber or its duly authorised representative.

12.1.1 Change of Address Either Party may give written notice to the other, change its domicilium to any other physical address in the Republic of South Africa and its fax number to any other South African number, provided that such change shall take effect 14 (fourteen) calendar days after delivery of such notice.

1.40 Deemed Notice Notice will be deemed given:

12.1.2 If delivered by hand to a responsible person during Business Hours to the designated physical address, on the date of delivery.

12.1.3 If sent by fax during Business Hours, upon production of a satisfactory transmission report by the sending fax machine and if outside such Business Hours then at the beginning of the next Business Day.

12.1.4 If sent by an express courier with a system for tracking delivery, when received.

12.1.5 If posted by registered post to the Parties addressed in terms of this clause, 7 (seven) days after posting.

1.41 Notice actually received Notwithstanding anything to the contrary stated above, if a notice or communication is actually received by a Party, adequate notice or communication shall have been given even though it was not delivered in a manner described above.