Customer Terms and Condition
The parties to this Agreement are:
1.1. Hymax SA (Pty) Ltd, registered number Reg: 2000/006285/07; and
1.2. Subscriber, as described in the Agreement
In this agreement, unless the context indicates the contrary intention, the following words and expressions will have the following meanings:
2.1. “This Agreement” means the terms and conditions contained in this Agreement and any price list or subscription form attached hereto.
2.2. “Connection” means the activation of the Subscriber account to the system.
2.3. “Network” means the telecommunication network(s) indicated.
2.4. “Initial Period” means the time period, commencing on the date of signature of the Agreement by Hymax; continuing thereafter for a period as stated on page one of the Hymax Subscriber Agreement, during which this Agreement cannot be cancelled by the Subscriber for any reason other than as may be provided by law.
2.5. “Re-connection Charge” means the charge payable by the Subscriber to Hymax for re‑connecting the Equipment to the system.
2.6. “Hymax” means Hymax SA (Pty) Limited, a company with limited liability, duly incorporated and registered as such in terms of the company laws of the Republic of South Africa and having its principal place of business and Head Office at 1st Floor, Block C, M5 Park, Eastman Road, Maitland, Cape Town.
2.7. “Commencement date” means the date of signature of this Agreement by Hymax.
2.8. “Services” means the Services applied by Hymax in terms of clause 2 of the Agreement.
2.9. “Subscriber” means the customer named on this Agreement who is the user of this Service.
2.10. “System” means public telecommunications system(s) operated by the global network operator(s) through which the Services are made available by Hymax to the Subscriber upon connection.
2.11. “Package” means the published tariff of charges made by Hymax for ongoing connection to the Network(s), as revised from time to time.
2.12. “Monthly Subscription” means the monthly charge payable for the Services.
3. ACCEPTANCE OF APPLICATION
Acceptance will only take place if the Subscriber passes credit checking to Hymax’s satisfaction. The terms and conditions contained shall apply to the exclusion of all others whether implied or proposed by the Subscriber orally or in writing unless expressly accepted in writing and signed by a General Manager/Director of Hymax.
4.1. Subject to clauses 5.1 and 6 hereunder, this Agreement shall commence on the Commencement Date and shall continue for the Initial Period. After the Initial Period has passed, this Agreement shall continue indefinitely unless cancelled by a party in terms of this Agreement by giving 90 days notice. If the Subscriber wishes to terminate the Agreement, effective immediately upon the expiry of the Initial Period, then the Subscriber shall do this by giving Hymax written notification of such intention to terminate at least 90 (ninety) days prior to the end of the Initial Period. Should this Agreement include a stated trial period, the trial period shall commence on the installation date, and the full term as stated above will automatically follow on the expiry of the trial period provided that the Subscriber does not request the cancellation of this Agreement in writing before the expiry of the trial period.
5. CONNECTION TO THE SYSTEM AND PROVISION OF SERVICE
5.1. Upon acceptance of this Agreement by Hymax, such acceptance to be at Hymax’s sole discretion, Hymax shall connect the Subscriber to the system as soon as is reasonably practicable.
5.2. Hymax shall use all reasonable endeavours to maintain the connection while the Subscriber abides by the terms and conditions of this Agreement.
5.3. Hymax reserves the right to set, withhold or adjust credit limits at its sole discretion on reasonable notice to the Subscriber and the Subscriber may cancel this Agreement within 90 days of receipt of such notice, failing which, the adjusted credit limits will apply to this Agreement. The Subscriber authorises Hymax to make any and all inquiries necessary in order to access such credit rating.
6. PAYMENT AND BILLING
6.1. The Subscriber shall pay Hymax within 7 (seven) days of the date of invoice by Hymax for the airtime supplied with sim(s), monthly subscription(s), call charges, line rentals, equipment rentals, value added Services charges, re-connection charges, installation charges and any additional charges for the Service.
6.2. Payment for the Service shall be by debit order only, unless an Agreement to the contrary is given in writing by Hymax to the Subscriber, and Hymax reserves the right to require any deposit it reasonably deems fit in advance of providing or extending the Service.
6.3. Where applicable, VAT is payable on all charges at the rate ruling at the applicable time.
6.4. Subject to clause 8 hereunder the Subscriber shall be liable for all charges for the Service provided to the Subscriber whether the Subscriber uses the Service or not. Neither Party shall be entitled to withhold and/or claim any deduction, set off, exchange or counterclaim howsoever arising in respect of goods supplied and / or Services rendered
6.5. The price of the Services provided by Hymax to the Subscriber upon the Subscriber’s order therefore, shall be the tariff rate applicable when the Services are provided to the Subscriber. Hymax has the right on reasonable notice to change the tariff provided that the Subscriber may cancel the Agreement within 90 days from receipt of the notice, failing which the amended tariffs will apply to this Agreement.
6.6. Interest will be charged on all overdue accounts at the prime rate quoted by Hymax’s bankers from time to time.
6.7. The Subscriber accepts liability for any Industry or Government levy, tax or tariff imposed on Hymax as a result of providing Services to the Subscriber and same shall be paid in terms of 6.1.
6.8. To the extent allowed by law if the Subscriber fails to object to any item appearing on Hymax’s statement or invoice in writing within 30 days of the date of the statement or invoice, the account shall be deemed to be in order and the Subscriber shall be deemed to have agreed to the charges thereon until the contrary is proved.
7. OBLIGATIONS OF THE SUBSCRIBER
7.1. The Subscriber acknowledges that the system is operated under license from the regulatory authorities and that the Service is provided by Agreement with the network(s) and the Subscriber hereby undertakes:-
7.1.1. not to use or to permit the use of the system for any unlawful, improper or immoral purpose;
7.1.2. to comply with all reasonable instructions by Hymax relating to the system and use of the Service;
7.1.3. to use only the Equipment duly approved to the standards set down by ICASA (the Independent Communications Authority of South Africa) and approved by Hymax; and
7.1.4. not to act or omit to act in any way which would injure or damage any persons, property or the system or cause the quality of Service to be impaired.
7.2. The Subscriber acknowledges that the system and the Service:
7.2.1. are only a general aid to communication and must be used in conjunction with any and all instructions relating thereto issued by Hymax and / or manufacturers of Subscriber Equipment and / or the Service operators; and
7.2.2. may be subject to interference and atmospheric conditions and physical features, including without prejudice to the generality hereof high buildings, tunnels and proximity of other airwave users.
7.3. The Subscriber hereby indemnifies and holds Hymax harmless in respect of any claim, cost, damages and losses (including loss of profit and legal fees as between attorney and own client) sustained by Hymax as a result of breach of this Agreement by the Subscriber.
The nature of the above provision is that it imposes an obligation on the Subscriber to indemnify Hymax and its effect is to increase the Subscriber’s obligations and / or liabilities.
7.4. The Subscriber shall at its own expense insure the Equipment with a registered insurer of the Subscriber’s choice. The Subscriber agrees to assign, cede and make over the right, title and interest in any insurance policy affected in terms of this Agreement to Hymax.
8. LIMITATION OF LIABILITY
8.1. To the extent allowed by law and subject to clause 7.3 Hymax shall not be liable whether in contract, delict or otherwise for any loss or damage (whether direct, indirect, consequential, financial or otherwise) caused to the Subscriber through any breach of this Agreement by Hymax or any matters arising under it or any defect, failure or suspension of the Service, the system or the Subscriber equipment or any change in the Subscriber’s Service or phone number(s);
8.2. To the extent allowed by law, Hymax shall not in any matter whatsoever be liable for the acts or omissions of whatever nature of its dealers / agents or any other party;
8.3. Hymax will not be held responsible for the failure and/or non-routing of emergency numbers and will not be liable for the consequence or events arising from this non-routing.
|Clause 8 limits and excludes obligations, liabilities and legal responsibilities which Hymax will have towards the Subscriber and also limits and excludes the Subscriber’s rights and remedies and places various risks, liabilities, obligations and legal responsibilities on the Subscriber. The Subscriber understands and agrees that there will be no liability to Hymax due to non-routing of calls to emergency numbers.|
9. TERMINATION AND SUSPENSION OF SERVICES
9.1. Hymax shall have without prejudice to any claims or remedies which it may have in law against the Subscriber the right to terminate the connection in terms of this Agreement without liability upon the happening of any of the following events:
9.1.1. if Hymax for whatever reason is unable to provide the Service;
9.1.2. if payment of the charges to anyone is not made on the due date;
9.1.3. if the Subscriber commits a breach of this Agreement or in the case of a breach capable of written notice requiring rectification other than in 9.1.2 fails to rectify the same within 7 days of Hymax delivering written notice requiring rectification of it or if any information supplied by the Subscriber to Hymax is found by Hymax to be false or misleading; and
9.1.4. if the Subscriber commits any act of insolvency, or if any application or order of sequestration / liquidation (whether temporary or final) is made against the Subscriber, or in the case of a Subscriber being a limited company, the Subscriber is unable to pay its debts as they fall due within the meaning of the Companies Act or if any application or resolution to wind up the Subscriber is passed or presented otherwise than for the reconstruction or amalgamation or is an administrative receiver/trustee/liquidator or judicial manager is appointed over any of the Subscriber’s assets property or if any power of such an appointment arises.
This Clause limits and excludes obligations, liabilities and legal responsibilities which Hymax will have towards the Subscriber and also limits and excludes the Subscriber’s rights and remedies and places various risks, liabilities, obligations and legal responsibilities on the Subscriber.
9.2. Hymax may from time to time without notice or liability on its part notwithstanding the aforegoing provisions of this clause at its absolute discretion suspend or disconnect or suffer the suspension or disconnection of the connection and / or Service to the Subscriber equipment referred to herein or any other Equipment referred to herein or any other Equipment used by the Subscriber in any of the following circumstances:-
9.2.1. during any technical failure, or maintenance of the Service or the system; or
9.2.2. if the Subscriber fails to comply with any of the terms and conditions contained herein (including failure to pay charges on the due date) until the breach (if capable of remedy) is remedied; or
9.2.3. if the Subscriber does or allows to be done anything which in Hymax’s reasonable opinion may have the effect of jeopardising the operation of the Service.
The provisions of this clause 0 shall apply in the same way to any improvement, modification or change to the Service or System provided that Hymax must give the Subscriber reasonable notice.
9.3. Hymax may terminate the connection and / or affect a block on the Service Equipment from use on any network(s) if the Subscriber fails to comply with the provisions of clause 9.1.2 to 9.1.4. In the event of such failure, the Subscriber shall be liable to pay Hymax monthly access charges calculated from the date of cancellation to date when the Agreement would have run its term, as provided for in terms of clause 4, but for cancellation such access charges to constitute damages which the parties hereto accept will reasonably have been incurred by Hymax.
9.4. Upon disconnection as hereinbefore referred to, the Subscriber shall pay on demand all charges outstanding or arising at the time of disconnection whether due for payment or not and including any reasonable charges and reasonable disconnection fee which Hymax may at its sole discretion levy, which amount shall be immediately due and payable.
9.5. Hymax may refuse to reactivate connection(s) to the network(s) under the Agreement until the Subscriber has paid all charges owing and complied with all obligations in terms of this Agreement.
9.6. Hymax shall be entitled to recover as a debt upon invoice thereof addressed to the Subscriber at the Subscriber’s last known address, alternatively the address of the Subscriber in this Agreement, all costs including attorney and client costs and collection commission incurred by Hymax in or about the enforcement or any obligation of the Subscriber hereunder including but not limited to all costs which Hymax may incur as a result of the Subscriber’s failure at any time to provide accurate information as and when required hereunder or in connection therewith.
9.7. Hymax shall have the right, without prejudice to any other right that it may have in terms of this Agreement or at law, at any time and without notice to the Subscriber, to blacklist the Subscriber, and / or to suspend the Services or any part thereof, and / or to discontinue the use of the
9.8. Equipment by electronic or other means in any of the following circumstances without prejudice to its rights concerning the liability of the Subscriber to continue to effect payment of the monthly access fee:-
9.8.1. for so long as the Subscriber remains in breach of its obligation in terms of this Agreement; and / or
9.8.2. for so long as the Subscriber acts contrary to the provisions contained in this Agreement; and / or
9.8.3. if the quality of the Service or the operation of the system is adversely affected due to any act or omission on the part of the Subscriber, and / or
9.8.4. if the Subscriber contravenes any legislation including the Electronic Communications and Transactions Act.
10. FORCE MAJEURE
To the extent allowed by law, Hymax shall not be liable for any breach of this Agreement if and to the extent that such breach arises as a result of any act of God, government or any other administrative act or omission, sabotage, riot, explosion, controls, restrictions, prohibition or other acts of any local or national government (including any requirement connected to the licensing arrangements under which Hymax operates) or industrial disputes of any kind.
The above clause limits and excludes obligations, liabilities and legal responsibilities which Hymax will have towards the Subscriber and also limits and excludes the Subscriber’s rights and remedies and places various risks, liabilities, obligations and legal responsibilities on this Subscriber.
Hymax shall be entitled from time to time at its absolute discretion to:-
11.1. vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the Subscriber from the time that the Subscriber is notified thereof unless the Subscriber has elected to cancel this Agreement within 90 days of the date of notification. Any subsequent provision of Service by Hymax to the Subscriber shall be on Hymax’s amended terms and conditions;
11.2. make such variations to the tariff as it deems appropriate;
11.3. make such modifications to the Service and make, or agree to, such changes to the system as it may reasonably consider necessary. Wherever practicable 30 (thirty) days prior written notice shall be given of such changes and the Subscriber may cancel this Agreement within the notice period given, failing which the Subscriber will be bound by the amendments;
11.4. make such alterations to this Agreement as the network(s) may reasonably require Hymax to make;
11.5. delegate, cede, assign or transfer all or any part of its right, title and interest in and to this Agreement without notice to the Subscriber;
11.6. This contract, with the additional terms set out in an addendum signed by the parties, represents the entire Agreement between Hymax and the Subscriber and shall govern all future contractual relationships between Hymax and the Subscriber and shall also be applicable to all debts which the Subscriber may owe to Hymax prior to the Subscriber’s signature hereto.
12. SUBSCRIBER CHANGES
12.1. The Subscriber is entirely and totally prohibited, in any manner whatsoever, from passing the Service over to any third party without written permission from a Director or General Manager of Hymax.
12.2. If the Subscriber breaches clause 13.1, the Subscriber will remain personally liable in terms of this Agreement, despite passing the Service over, without prejudice to Hymax’s rights under the law.
The failure to enforce or to require the performance at any time or any of the provisions of this Agreement will not be construed to be a waiver of such provisions, and will affect either the validity of this Agreement or any part thereof or the right of any party to enforce the provisions of this Agreement.
This Agreement contains the entire Agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior Agreements between the parties, whether written or oral with respect to the subject matter of this Agreement.
The signatory warrants that he/she has the authority necessary to enter into this Agreement and to do all things necessary to procure the fulfilment of the Subscriber’s obligations in terms of this Agreement.
Any notice acquired herein shall be sent by prepaid registered post or facsimile to the address of the parties as it appears in the subscription form to which this Agreement is attached and signed by the Subscriber.
18.1. If this Agreement and/or any goods and/or Services provided under this Agreement are regulated by the Consumer Protection Act No 68 of 2008, as amended, replaced or re-enacted from time to time (“Consumer Protection Act”), it is not intended that any provision of this Agreement contravenes any provision of the Consumer Protection Act and therefore all provisions of this Agreement must be treated as being qualified, if necessary, to ensure that the provisions of the Consumer Protection Act are complied with.
Hymax cannot over-emphasize the importance of security on a Network. Both Voice and Data Networks are susceptible to security threats, which could result in major cost implications for the end customer. We would like all of our potential customers to be aware of the standard risks involved in running a Network, and ask them to ensure that their IT and PBX support partners adequately secure their environments. We at Hymax make every effort to secure our Carrier Network environment.
Hymax does not have the ability to monitor or control the security on a customer’s private Network. Whilst Hymax is responsible for the management and security of all hardware that we provision, the on-site security of a customer’s IT network and their telephony equipment is the responsibility of the customer and their local support partners. Hymax cannot be held liable for any costs or damages incurred by the customer due to: security breaches (such as hacking and SIP fraud) of customer owned/managed equipment; or for changes made by any other third party. Best Security Practices
Hymax strongly recommends the following basic security practices to be implemented by the customer’s IT and PBX support partners:
- All IP devices need to be secured by complex passwords. These include IP telephones and PBX equipment. We recommend that support partners adhere to the manufacturers’ recommended best practices guidelines regarding security.
- Passwords should remain confidential and should be changed periodically. Passwords should not be sent via electronic media or kept in an unsecure environment.
- Private Networks should be isolated from public Networks (e.g. the Internet) behind secure, managed firewalls.
- IP Voice equipment should be on separate internal VLANs from data network segments.
- All computers should be regularly patched with the latest updates.
- All computers should have reliable, managed, up-to-date anti-virus and malware protection.
- Wireless Networks should be secured with WPA2-PSK security keys.
- Physical access to private Networks must be tightly controlled.
- Network usage and performance must be regularly monitored.
- Only trusted and authorised technicians should have access to IP or Voice Networks and equipment.
20. DEMARCATION OF RESPONSIBILITIES
- Security for both voice and data services is to be managed by the customer’s PBX and IT service providers. This is not a Hymax responsibility. Please refer to our advisory on security risks above.
- Hymax’ responsibility for data services ends at the data router (unless Hymax supplies another piece of hardware).
o This is managed, configured and secured by Hymax.
o The router represents the demarcation device between the Hymax network and the customer’s network. Hymax is not responsible for any configuration
beyond this device.
o Customers with fibre services will be provided with a range of usable IP addresses, a default gateway, DNS servers and other relevant information. Customers
must manage the configuration of their own internal network environments.
o Customers with ADSL services will be requested to provide Hymax with NAT and port forwarding information before provisioning. Hymax will provision the
router according to the Customer’s requirements. Any changes will be managed via a service request to email@example.com. Hymax is not responsible for
any configurations beyond this device.
- Hymax’ responsibility for voice services ends either at:
o A Hymax voice gateway:
~ This is managed, configured and secured by Hymax.
~ This gateway represents the demarcation device between the Hymax voice network and the customer’s PBX. Hymax is not responsible for any
configuration beyond this device.
~ Hymax will work with the customer’s PBX vendor during the cutover.
~ Customers, PBX vendors and IT departments are not allowed to configure, reprogram or work on these Hymax devices.
~ Hymax can prove voice quality from this device across the Hymax network.o At the Hymax data router in the case of an IP enabled PBX or third party gateway.
~ In this case, the data router represents the demarcation device between the Hymax network and the customer’s network. Hymax is not responsible for any
configuration beyond this device.
~ Hymax will provide the PBX vendor with the optimal settings for the Hymax network.
~ Hymax will work with the customer’s PBX vendor during the cutover.
~ Hymax can prove voice quality from the router across the Hymax network. This is done before cutover.
- Hymax is not responsible for customer internal network or PBX configurations, and Hymax technical staff may not work on any customer equipment.
- Customers may not move or modify the Hymax hardware in any way without permission from Hymax. The customer is responsible for ensuring that the equipment is in a safe and stable environment. Any costs related to changes in the environment will be billable to the customer.