View terms & conditions - Vodacom

1. Agreement structure1.1 This agreement between Customer and Vodacom incorporates the Order Form, theseGeneral Terms and the applicable Online Services Use Rights1.2 If there is any inconsistency between the various provisions of the Agreement, thefollowing order of precedence will apply, where 1 has a higher precedence than 2 andso on: (1) Order Form; (2) Online Services Use Rights (3) General Terms andConditions.2. Availability of the Licensed Services2.1 Vodacom shall use reasonable endeavours to provide Customer with the LicensedServices; however Vodacom cannot guarantee that the service will be fault-free.2.2 Vodacom may suspend the Licensed Services: (i) in order to carry out maintenance ortesting; (ii) when it is necessary to safeguard the security and integrity of the LicensedServices or to reduce the incidence of fraud.3. Customer’s use of the Licensed Services3.1 Customer may supply the Licensed Services to End Users, but not to any other party.Customer shall ensure the compliance of End Users with the terms of this Agreement,all applicable laws and Codes of Practice.3.2 Customer shall not use any Licensed Services for any purpose that Vodacom (actingreasonably) believes is abusive, a nuisance, illegal or fraudulent.3.3 Where a specific End User causes Customer to be in breach of its obligations ofclause 3.2, Vodacom shall be entitled to suspend such End User’s use of theServices. Vodacom shall notify Customer of its intention to do so where this isreasonably practicable, allowing an opportunity to remedy the alleged breach (whereit is capable of remedy); otherwise Vodacom shall notify Customer as soon asreasonably practicable after the suspension. This right of suspension shall only applyduring the period of breach, although re-instatement of the Service may be subject tothe payment of a reconnection Charge by Customer.3.4 During any period of suspension, Customer shall continue to pay all Charges dueunder this Agreement in respect of the suspended Services.4. Charges and Payment4.1 Vodacom states all Charges exclusive of VAT, unless specified otherwise. All Chargesnot specified on an Order Form shall be at Standard List Price.4.2 Access Fees shall be invoiced by Vodacom monthly in advance and all other Chargesshall be invoiced monthly in arrears. Invoices shall be paid by Customer in clearedfunds no later than 30 calendar days from the date of the invoice (“Due Date”), bydirect debit.4.3 If Customer reasonably and in good faith disputes an invoice or part of it, Customershall notify Vodacom within 14 days of receipt of the invoice, providing details of whythe invoiced amount is incorrect and, if possible, how much Customer believes is due.All undisputed Charges shall be paid by the Due Date.4.4 Where Vodacom has not received payment for undisputed Charges by the Due Date,Vodacom shall: (i) contact Customer’s Accounts Payable Department to requestpayment; and (ii) be entitled to charge interest on the overdue Charges at the highestrates permitted by applicable law. Where Vodacom has not received payment within30 calendar days of the Due Date, Vodacom shall be entitled to terminate thisAgreement.4.5 Customer shall not be entitled to offset any sums that Vodacom owes to Customerunder this Agreement or any other agreement or dispute between the Parties againstany sums that Customer owes to Vodacom under this Agreement.4.6 Vodacom may credit assess Customer from time to time as reasonably required toassess Vodacom's risk. Each credit assessment shall entitle Customer to have acredit limit on its Vodacom account (details of which are available on request).5 Software Licence and Intellectual Property5.1 Use of the Licensed Services shall be subject to the terms of the Online Services UseRights. If Customer does not accept the terms of the Online Services Use Rights,Customer shall not use, and Vodacom shall not be bound to deliver, the relevantLicensed Service5.2 Customer shall not:5.3.1 Transfer, sub-licence, lend or otherwise make available the Software to anyother party;General Terms and Conditions5.3.2 Modify, adapt, make error corrections or create derivative works based onthe Software;5.3.3 copy, decrypt, or reverse engineer the Software or any part of it,7.3or otherwiseWhere thisconvert it from theform in which it was supplied;to a form more readily comprehendible by a human provided that where theCustomer has the right by law to decompile such Software to obtain informationwhich is necessary to render the Software interoperable with other software andupon written request by Customer providing full information, Vodacom shall at itsoption provide a software interface to enable such interoperability or suchinformation subject to reasonable conditions including a reasonable fee;5.3.4 Separate the components of a Licensed Service, or upgrade or downgradethem at different times, except as permitted in this Agreement;5.3.5 Use Software for any purpose other than using the Licensed Services inaccordance with this Agreement and the Online Services Use Rights; or5.3.6 Use or export the Licensed Services in a manner that is contrary to UnitedStates and international export laws and regulations that apply to the LicensedServices. These laws include restrictions on destinations, End Users and end use.Additional information can be found at www.microsoft.com/exporting.5.3 The Intellectual Property Rights that exist in Services and Software are owned byVodacom and Vodacom’s licensors. By supplying Customer with Services orSoftware, Vodacom is not transferring or assigning ownership of any IntellectualProperty Rights in or relating to them to Customer.5.4 Where Vodacom creates Intellectual Property Rights during or as a result of thesupply by Vodacom of Licensed Services, Software or Equipment to Customer,Vodacom shall own all such Intellectual Property Rights.5.5 Customer must not do anything to jeopardise Vodacom or its licensor’s IntellectualProperty Rights [including (i) any of the prohibited acts set out in Clause 5.3; (ii)register or attempt to register any competing Intellectual Property Rights toVodacom or its licensor’s Intellectual Property Rights; (iii) delete or tamper withany proprietary notice on or in Vodacom or its licensor’s Intellectual PropertyRights; (iv) take any action that diminishes the value of any trade marks includedin Vodacom or its Licensor’s Intellectual Property Rights; or use any Equipment orServices in violation of applicable law.6 Termination6.1 Each Party shall have the right to terminate this Agreement in whole or in part bygiving the other 1 month’s written notice of termination.6.2 The Parties shall each have the right to terminate this Agreement with immediateeffect (by serving written notice of termination to the other Party):6.2.1 if the other Party becomes subject to an Insolvency Event; or6.2.2 if the other Party is in material breach of any of its obligations under thisAgreement (provided that where such breach is capable of remedy, the breachingParty is given 30 days to rectify such breach from the date that notice of anybreach is received from the non-infringing Party);6.3 Vodacom shall have the right to terminate the service on 14 days notice withoutliability to the Customer, if the Customer has no active mobile connections on theirVodacom account.6.4 If Vodacom’s licensor believes in good faith that Customer is acting in a way thatwould amount to a breach of the applicable Online Services Use Rights if suchCustomer had entered into an agreement directly with Vodacom’s licensor,Vodacom may be obliged to stop supplying the Licensed Service to Customer, butprovide Customer with such prior written notice as is reasonably practicable.6.5 The Parties acknowledge and agree that this is a trial agreement only, andtherefore Vodacom shall have no liability to Customer for any termination of theagreement in accordance with this clause 6.6.6 The Parties shall acknowledge, as soon as reasonably possible, the receipt of anynotice of termination of this Agreement (in whole or in part) received in writingfrom the other Party.7 Consequences of termination7.1 On termination of this Agreement, Customer shall immediately cease use of theSoftware (except Software which is embedded in Equipment to which Customerhas title).7.2 Customer shall (if requested by Vodacom, delete or destroy all copies of the userdocumentation which Vodacom has supplied or which Customer has copied, inwhatever form and return, delete or destroy all copies of the Software (exceptSoftware which is embedded in Equipment to which Customer has title) within 7calendar days of termination of this Agreement or of termination of the relevantService, and provide Vodacom with written confirmation that all such copies havebeen returned, deleted or destroyed.

8 Confidentiality8.1 This Agreement and any information about Services that is not publicly available, isconfidential, and may be disclosed by Customer to Customer’s employees only,strictly on a need-to-know basis, unless otherwise agreed in writing with Vodacom.8.2 Vodacom shall be entitled to keep records of Customer information, which Vodacomshall use to perform Vodacom’s obligations under this Agreement, and for relatedpurposes.8.3 Customer acknowledges and agrees that Vodacom shall provide Customer’snominated email address to Microsoft, and Microsoft shall be entitled to contactCustomer regarding Service issues, updates or upgrades, or maintenance issuesconcerning the Licensed Services.8.4 Vodacom shall only provide Customer’s details to Microsoft for Microsoft to use fordirect marketing purposes where Customer has consented to such contact.8.5 Vodacom shall be entitled to disclose Customer information as required by any legal,regulatory or financial agency or by court order, any Vodacom group company or anythird party (some of whom may be outside of the European Union) for the purposes ofproviding the Services.9 Liability9.1 Nothing in this Agreement shall operate to restrict either Party’s liability to the otherfrom: death or personal injury resulting from negligent acts or omissions; claims fornon-payment; the non-excludable statutory rights of consumers (for example, underlaws providing for strict product liability); breaches of any Software license; breach ofany obligation of confidence; and any infringement of Vodacom or its licensor’sIntellectual Property Rights.9.2 Except for Clause 9.1 above and to the extent not prohibited by law:9.2.1 each Party's maximum aggregate liability for all claims relating toEquipment or a Service provided pursuant to this Agreement, whether for breach ofcontract (including repudiatory breach), breach of warranty or in tort, includingnegligence, will be limited to 100% of the value of the Charges paid or payable underthis Agreement, up to a maximum of £10,000 (ten thousand pounds); and9.2.2 neither Party will be liable for any indirect, punitive, special, incidental orconsequential damages in connection with or arising out of the terms of thisAgreement nor any loss of business, revenue, profits, goodwill, use, data, or othereconomic advantage, however they arise, whether in breach of contract (includingrepudiatory breach), breach of warranty or in tort, including negligence, and even ifthat Party has previously been advised of the possibility of such damages. Vodacomshall not be liable to Customer if it is unable to provide any of the Servicescontemplated by this Agreement due to circumstance outside its reasonable control.9.3 Except for the payment obligations of the Customer, neither Party will be responsibleor liable in any way for the failure or delay in the performance of its obligations due toForce Majeure. If a cause relied on by a Party hereunder ceases to exist, the Party willperform or resume performance of its obligations and the time for performance will beextended by a period equal to the duration of the Force Majeure. If Force Majeurepersists for a period of more than 30 days, the other Party will be entitled to terminatethis Agreement on written notice.9.4 The warranties specified in this Agreement are the only warranties provided withrespect to Services provided to Customer by Vodacom. To the extent permissible atlaw, all other warranties (whether express or implied and including any impliedwarranties of fitness for a particular purpose or merchantability) are excludedprovided that where legislation implies warranties or conditions or imposesobligations (statutory provisions) which cannot be excluded, restricted or modifiedexcept to a limited extent, this Agreement must be read subject to those impliedstatutory provisions.9.5 Microsoft is not a party to this Agreement and, to the extent permissible by law, shallnot have any liability to Customer, whether for breach of contract (includingrepudiatory breach), breach of warranty or in tort, including negligence, for anydamages, whether direct, indirect, or consequential, arising from the sale or use ofthe Licensed Services.10 General Provisions10.1 If Customer supplies Vodacom with personal data (for example relating to End Users)Customer shall ensure that it is accurate and up to date when disclosed. Customershall ensure that Customer has obtained from the individuals oncerned all necessaryconsents under the Data Protection Legislation to both the supply of the data toVodacom, and the processing of it by Vodacom, for the purposes of performance ofthis Agreement, supply of the Equipment andServices and for direct marketing about Vodacom’s similar products andservices. Customer shall also ensure that any individual to whom personal datarelates has given consent for Vodacom to pass such data back to Customer.Customer shall process all personal data fairly and lawfully, as required by theData Protection Legislation and shall in particular, if processing personal dataon behalf of Vodacom, comply with the Seventh Principle of the Data ProtectionAct 1998.10.2 Each Party shall comply with its obligations under the Data ProtectionLegislation. Customer acknowledges that Vodacom retains the role of DataController as defined in the Data Protection Act 1998 except in the limitedcircumstances where Vodacom processes any personal data for and on behalfof Customer.10.3 Vodacom shall be entitled to transfer in whole or in part any of its rights andobligations to any company within Vodacom’s Group at any time. Vodacommay use sub-contractors to perform any of its obligations under this Agreementbut remains responsible for their performance.10.4 Unless expressly provided in this Agreement, no term of this Agreement isenforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by anyperson who is not a party to it.10.5 All notices served by Customer under this Agreement shall be in writing andsent to the Head of Enterprise Contracts at Vodacom House, The Connection,Newbury, Berkshire RG14 2FN, or any other address Vodacom directs Customerto use from time to time. Vodacom shall send all notices to Customer atCustomer’s registered office. Notices will be deemed given: where they arehand delivered, when a duly authorised employee or representative of therecipient gives written acknowledgement of receipt; for e-mail communication,at the time the communication enters into the information system of therecipient; for posting, three days after dispatch; and for fax on receiptedtransmission of the fax.10.6 Neither Party shall lose any right under this Agreement if it fails to use thatright, or delays in using it. For a waiver of a right to be valid, it must be writtenand will not give rise to an ongoing waiver of that right unless it is expresslystated to do so.10.7 Termination of this Agreement or any part thereof, shall be without prejudice toany other rights or remedies a Party may be entitled to at law or under theAgreement and shall not affect any accrued rights or liabilities of either Partynor the coming into force or the continuance in force of any provision of theAgreement which is expressly or by implication intended to come into orcontinue in force on or after such termination.10.8 This Agreement is governed by South African Law and is subject to the nonexclusivejurisdiction of the South African Courts.10.9 Only provisions set out in this Agreement shall apply to Vodacom’s supply ofServices to Customer. All other provisions are expressly excluded to themaximum extent permitted by law. The Parties acknowledge that, in enteringinto this Agreement, neither Party has relied upon any statement or warrantymade, or agreed to, by any person, except those expressly set out within thisAgreement. However, this shall not be taken to exclude either Party’s liabilityfor fraud.10.10 If a misrepresentation or untrue statement has been made, the only remedyavailable to the Parties shall be a claim for damages for breach of thisAgreement, unless such misrepresentation or untrue statement was madefraudulently, or a provision of the Agreement was induced by fraud, in whichcase all remedies under South African Law shall be available.10.11 All headings in this Agreement are there for convenience, and do not have anylegal effect. Use of the singular includes the plural and vice versa.10.12 Every provision in this Agreement is independent from the others to the extentthat, if a provision, or any part of it, is ruled to be illegal or unenforceable bythe South African Courts, that provision or the relevant part of it shall betreated as having been deleted from this Agreement, without affecting theremainder of that provision or the other provisions of this Agreement, whichshall still have full effect.10.13 If there is a dispute under this Agreement, and Customer’s account managerhas been unable to resolve the issue to Customer’s satisfaction, Customer mayescalate the issue to a more senior representative within Vodacom. The Partiesshall use the escalation process to its full before taking legal action against theother Party. Escalation routes within Vodacom shall be as follows, Customershall provide escalation contacts at equivalent levels:First: Head of Channel, Enterprise Sales (or if you are managed by a VodacomPartner, your Vodacom Partner Manager), Second: Sales Director, EnterpriseSales (or if you are managed by a Vodacom Partner, the Head of Indirect Sales,Vodacom Limited), Third: Director of Enterprise, Vodacom Limited.