Website Terms and Conditions

Summary of Terms and Conditions of Use of this Website

When browsing or otherwise using this website in order to gain information or purchase services you are entering into an agreement with Hymax which sets out terms and conditions governing such use. While users are required to review the full Terms and Conditions of Use, Hymax wishes to bring the following to your attention:
1. Use of this website is at your own risk.
2. Consumers (being natural persons who are end-users of our services) are afforded consumer protection rights under the Electronic Communications and Transactions Act 25 of 2002.
3. Hymax also, subject to obligations under the law, respect your privacy rights.
4. When you use this site to enter into an agreement for the provision of services, Hymax online billing for processing payment, which is only an estimate until the final invoice is issued. No credit card information is processed or stored on this website.
5. This website is provided on an “as is” and “as available” basis. While Hymax takes all reasonable steps to ensure continuity of service we cannot be held liable for any inability to access or use the website or any of the services on it.
6. Hymax reserves the right, in its sole and absolute discretion and without prior notification, to terminate the provision of this website and/or to terminate the access rights of any user where, for example and without limitation:
6.1. Hymax regards the action or inaction of a user to constitute a breach of the Terms and Conditions of Use;
6.2. Hymax regards the action or inaction of a user to constitute abuse of the services offered through this website;
6.3. Events beyond Hymax’s reasonable control, including technical failures, prevent the continuing provision of the website.

Last updated: 27 November 2013
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Full Terms and Conditions of Use

Definitions

“website owner” and/or “we” and/or “the supplier” and/or “Hymax” means Hymax SA (Pty) Ltd.
“consumer” means any natural person (not a company, CC, trust, etc) who enters or intends entering into an electronic transaction with this website as the end-user of the goods or services offered by this website.
“ECT Act” means the Electronic Communications and Transactions Act 25 of 2002.
“personal information” is as defined in the Promotion of Access to Information Act 2 of 2000 (“PAIA”).
“the website” or “this website” refers to any part of the Hymax website (http://www.hymax.co.za and related pages)
“user” means any person accessing any part of the website.

Use of this Website

1. Use of this website constitutes acceptance of these Terms and Conditions of Use which thereafter constitute a binding agreement (“Agreement”) between Hymax and the user.
2. Use of this website is strictly at the sole risk of the user.
3. Hymax may, in its sole discretion, amend these Terms and Conditions of Use from time to time at which time these will be brought to the attention of users and become binding on such users where they continue to use the website after such amendments have been brought to their attention.

Amendments to content and information

4. Hymax expressly reserves the right in its sole discretion to affect any amendment or alteration to the content and information, including pricing and rates, set out in this website.
5. Users acknowledge that it is their responsibility to familiarise themselves with any amendment or alteration affected.

Owner information & required disclosures under section 43 of the ECT Act

Website owner: HYMAX TALKING SOLUTIONS (PTY) LTD
Registered Number: 2010/015483/07
Licensing: 0341/IECNS/APR/09 & 0341/IECS/APR/09
Directors: NEIL MACDONALD
Phone: 021 710 8400
Fax: 086 505 3808
email: info@hymax.co.za
Website: http://www.hymax.co.za
Physical Address: BLOCK C, M5 PARK, EASTMAN ROAD, MAITLAND, CAPE TOWN, 7405
Postal Address: PO BOX 14671, KENWYN, 7790
Registered Address: OFFICE 1, THE OLD BAKERY, MAIN ROAD, LAKESIDE, 7945
VAT Number: 4490259498

No offer

6. Users should regard nothing contained in this website as an offer but rather as an invitation to do business.

Disclaimers

7. This entire website, including text, images, links, downloads and coding, is provided “as is” and “as available”. Hymax makes no representations or warranties, express or implied, including but not limited to warranties as to the correctness or suitability of either the website or the information contained in it.
8. Subject to Chapter 7 of the ECT Act, Hymax, its officers, employees, suppliers, resellers, partners, affiliates and agents, shall not be liable for any damage, loss or liability, howsoever arising, incurred by users or any other persons and resulting from the use or inability to use this website.
9. Subject to Chapter 7 of the ECT Act and to the fullest extent possible under the applicable law, Hymax disclaims all responsibility or liability for any damages, including but not limited to direct, economic, consequential loss or loss of profits, resulting from the use of this website in any manner.
10. Hymax has no control over third party content and features which may be accessed through the use of this website and does not examine or edit such content and features or act as an agent for third parties accessible through this website. As such and to the fullest possible extent permissible under law, the website owner disclaims any liability whatsoever for any loss or damage arising from the use of third party websites contents and features.

Indemnity

11. USERS AGREE TO INDEMNIFY AND HOLD HARMLESS HYMAX, ITS OFFICERS, EMPLOYEES, SERVANTS, SUBCONTRACTORS, PARTNERS, SUBSIDIARIES AND AFFILIATES FROM ANY DEMAND, ACTION OR APPLICATION OR OTHER PROCEEDINGS, INCLUDING FOR ATTORNEYS FEES AND RELATED COSTS SUCH AS TRACING FEES, MADE BY ANY THIRD PARTY AND ARISING OUT OF OR IN CONNECTION WITH THE USER’S USE OF THIS WEBSITE, THIRD PARTY WEBSITES OR ANY OF THE SERVICES OFFERED THROUGH SUCH WEBSITES IN ANY WAY, INCLUDING BUT NOT LIMITED TO THE PROVISION OF CONTENT.

Consumer Rights and Security

12. Consumer rights in respect of online transactions are set out in Chapter 7 of the ECT Act. A copy of the Act is available from http://www.internet.org.za/ect_act.html .
13. Under section 42(1)(d) of the ECT Act, the cooling-off period set out in section 44 of the ECT Act does not apply in respect of services which began with the consumer’s consent before the end of the seven-day period referred to in section 44(1).
14. Under section 42(1)(f) of the ECT Act, the cooling-off period set out in section 44 of the ECT Act does not apply in respect of goods which are made to the consumer’s specifications or which are clearly personalised or which by reason of their nature cannot be returned.
15. Under sections 43(1) and (2) of the ECT Act, the website owner is required to disclose the information and procedures set out in these sections in respect of electronic transactions. In the event that a consumer proves that the website owner has not set out the information and procedures as required then the consumer has the right to cancel the transaction within fourteen (14) days of receiving the relevant goods or services under the transaction.
16. Where a transaction has been so cancelled then:
a. The consumer must return the performance of the supplier and/or immediately cease using the services performed; and
b. The supplier must refund all payments made by the consumer less the direct cost of returning the goods, if any.
17. Under section 43(5) of the ECT Act, the supplier must utilise a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned.
a. This website does not process or store any user credit card information. At no stage is credit card information stored together with user personal information.
b. Transactions are processed through online billing. This billing is only an estimate, and only billing as reflected on official invoices will be considered to be final.
18. Under section 43(6) of the ECT Act, the supplier will be liable for any damage suffered by a consumer as a result of the failure to comply with section 43(5).

Payment

19. Payment may be made by EFT or debit order. Payment may also be made by credit card, although this information is not processed online – Hymax accepts MasterCard and VISA.
20. The merchant outlet country at the time of presenting payment options to the cardholder is the Republic of South Africa and the transaction currency is South African Rand (ZAR).

Delivery and Availability

21. Delivery times are clearly indicated in the purchase and check-out process.
22. Shipping, insurance costs and related costs are not included in pricing displayed on this website and are strictly for the purchaser’s account.
23. Users’ attention is drawn to section 46 of the ECT Act which requires a supplier to a consumer to execute an order within thirty (30) calendar days of receipt of the order, unless the parties have agreed otherwise. If the order is not executed within this period and where there is no agreement in place, the consumer may cancel the agreement on seven (7) calendar days’ written notice.

Cancellations Policy

24. Cancellations must first be requested via cancellations@hymax.co.za.

Registration

25. When registering or signing up for any service through this website, users agree that:
a. they will be irrevocably bound by the terms and conditions applicable to the use of this website;
b. they will provide full and accurate information;
c. it is the user’s responsibility to check and update information pertaining to his/her user account;
d. on registration they will provide a username and password;
e. registration is for a single user and a subscriber’s username and password and may not be shared with any other person; and
f. a single username and password cannot be used to allow multiple access to other users over a network.
26. Registered users and users further undertake not to:
a. impersonate any other person or use a false or unauthorised name so as to create a false identity and/or email address or to misrepresent the origin or identity of any communications;
b. modify, access or make available any data stored on a computer device which has been accessed through the website owner’s network;
c. make available or upload files that contain software or any other material not owned or licensed to the subscriber; and/or
d. make use of the website to collect, harvest or otherwise obtain personal information relating to other users or subscribers.

Receipt of Data Messages

27. Data messages, including email messages, sent by users to Hymax shall be deemed to be received only when acknowledged or responded to, failing which receipt shall be deemed to have occurred on the first Business Day after sending.
28. A data message sent by Hymax to users shall be regarded as received when the complete data message enters an information system designated or used for that purpose by the recipient and is capable of being retrieved and processed by the recipient.
29. Hymax reserves the right not to respond to any email or other data message which contains obscene, threatening, defamatory or otherwise illegal, unlawful or inappropriate content, and to take the appropriate action against the sender of such email where necessary.

Monitoring and Interception of Data Messages

30. In order to provide a relevant and secure service, and where required to do so under law, the website owner may monitor and/or intercept electronic communications such as email which are sent to this website. To the full extent necessary under law, the user hereby acknowledges that he or she is aware of such potential monitoring and/or interception and consents thereto.

Security

31. While Hymax takes all reasonable security precautions and subject to the provisions of the ECT Act as set out above, no liability will lie for damage caused by the malicious use of this site or by destructive data or code that is passed on to the user through the use of this site.
32. The following acts in connection with this website are expressly prohibited:
a. Gaining or attempting to gain unauthorised access to any web page or part of this website;
b. Delivering or attempting to deliver any unauthorised or malicious code or content to this website; and/or
c. Any amendment to or attempt to amend any of the content or any other part of this website by unauthorised persons; and/or
d. Any other unlawful interference with the proper operation of this website.
33. Hymax will pursue prosecution of and compensation from any person that delivers or attempts to deliver any destructive code to this website or attempts to gain unauthorised access to any page on or part of this website.

Copyright and Intellectual Property Protection

34. Copyright in all information, images, source codes and other original material contained in this website which is not attributed to a third party, is held by or licensed to the Hymax.
35. Unless otherwise indicated, users are welcome to copy, download or print out any of the visible text or images on this website for personal and non-commercial use.
36. Users wishing to utilise content for their own commercial purposes may only doing so with Hymax’s prior written permission.
37. Any use of the content or any other part of this website must be clearly accompanied by the following: “©Hymax [insert year in which content is copied]. All rights reserved.”
38. Hymax grants to users a personal, non-exclusive, non-assignable and non-transferable license to use, print and display all content and information on any machine of which the user is the primary user for non-commercial purposes only.
39. If a user believes that this site in any way infringes a third party copyright or other intellectual property right, he or she may contact Hymax at info@hymax.co.za, specifying the full details of the alleged infringement.

Privacy and Confidentiality of communications

40. Further information regarding the manner in which the website owner respects the privacy of users’ personal information is contained in the Hymax Privacy Policy.
41. Hymax may monitor interactions with this website in order to promote its secure and efficient operation. Users irrevocably agree that they consent to such monitoring as may be reasonably carried out by Hymax in terms of its Privacy Policy.

Advertising and sponsorship

42. This website may contain third party advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion in this website complies with all applicable laws and regulations.
43. Hymax accordingly excludes, to the fullest possible extent permissible under law, any responsibility or liability for any error or inaccuracy appearing in advertising or sponsorship material.

Automated searching

44. Automated transactions and searches are subject to these Terms and Conditions of Use.
45. The use of malicious search technology is prohibited.
46. The use of search technology in an unlawful manner or for the collecting or harvesting of data for commercial gain is prohibited.
47. Search technology which does not unduly retard the operation of this website is acceptable but Hymax reserves the right to prohibit any specific entity from employing search technology on the website.

Hyperlinks, deep links & framing

48. Permission to link to this website is given without assumption of any liability. Hymax reserves the right to withdraw permission granted to link to this website at any time and for any reason.
49. Hyperlinks and/or advertisements contained on this website and directed towards other websites or users are provided without any warranties or endorsements as to the content, suitability, accuracy or security of the site linked to. This website in no manner controls or edits the content of sites or pages linked to and disclaims all liability, direct or indirect, which may arise from the use or inability to use a link or a linked-to web site.
50. Use of the sites or pages linked to is accordingly exclusively at the risk of the user.

Termination of this Agreement

51. Hymax reserves the right, in its sole and absolute discretion and without prior notification, to terminate the provision of this website and/or to terminate the access rights of any user where, for example and without limitation:
a. Hymax regards the action or inaction of a user to constitute a breach of these Terms and Conditions of Use;
b. Hymax regards the action or inaction of a user to constitute abuse of the services offered through this website; and/or
c. Events beyond Hymax’s reasonable control, including technical failures, prevent the continuing provision of the website.
Governing Law
52. The user hereby agrees that the law applicable to these Terms and Conditions of Use, their interpretation and any matter or litigation in connection therewith or arising from them will be the law of the Republic of South Africa without reference to its conflicts of laws procedures.
53. When using this site and agreeing to these Terms and Conditions of Use, such use and agreement is deemed to have taken place in Cape Town, South Africa.

Consent to Jurisdiction and Costs

54. The user consents to the jurisdiction of the Magistrate’s Court having jurisdiction in terms of section 28 of the Magistrate’s Court Act, as amended, in respect of any dispute flowing from the use of this website, notwithstanding the fact that the amount of the claim may exceed the jurisdiction of such Court.
55. Notwithstanding the above, Hymax may, in its own discretion, elect to proceed with any claim, application or action in the High Court of the Republic of South Africa, Western Cape High Court, Cape Town, to the extent necessary, and the user accepts such jurisdiction.
56. The user agrees that he or she will be liable for the legal costs, including tracing fees, on the scale as between attorney and client in respect of any legal proceedings commenced by the Hymax as a result of any breach of these terms and conditions or any additional terms and conditions contained on this website.

Amendment of the terms and conditions of this Agreement

57. Please note that, due to legal and other developments, Hymax may be required to amend these Terms and Conditinos of Use from time to time. Please refer to the last revision date at the foot of this page.
58. Hymax will attempt to give notice of any amendments, but reserve the right to effect binding amendments, additions or deletions without notice.

Enforceability of this Agreement

59. Users may not cede, sub-license or otherwise transfer any rights they may have under these Terms and Conditions of Use or which may otherwise have been obtained through the use of this website.
60. In the event of any part of these Terms and Conditions of Use being found to be partially or fully unenforceable, for whatever reason, this shall not affect the application or enforceability of the remainder of this Agreement.
61. These Terms and Conditions of Use contain the record of the entire agreement between the user and Hymax as regards the use of this website.
62. Failure to enforce any provision of these Terms and Conditions of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision.

Last updated: 27 November 2013
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Hymax Code of Conduct and Service Charter

Introduction

1. In order to provide electronic communications services to its subscribers, Hymax SA (Pty) Ltd (“Hymax”) holds licences issued by the Independent Communications Authority of South Africa (ICASA).
2. ICASA requires that all licence-holders comply with, inter alia, the:
2.1. ICASA Code of Conduct Regulations 2008, which sets out minimum standards of conduct when providing services to subscribers or dealing with potential subscribers; and
2.2. ICASA End-user and Subscriber Service Charter Regulations 2009, which sets out minimum quality of service standards applicable to services provided to subscribers and potential subscribers.
3. Hymax has developed a Code of Conduct and Service Charter in line with these Regulations and will strive to follow this in its interactions with its Consumers.
4. The ICASA Code of Conduct Regulations 2008 is available here.
5. The ICASA End-user and Subscriber Service Charter Regulations is available here.

Definitions

The following definitions find application throughout all Hymax documentation:
Billing Dispute” means an instance where a Customer states in good faith that their bill contains incorrect charges, payments or adjustments.
Billing Dispute Notice” means a notice submitted by the Customer in terms of this Procedure.
Billing Disputes Handling Procedure” and “this Procedure” mean this Billing Disputes Handling Procedure for the initiation and resolution of Billing Disputes.
Billing Enquiry” means the situation where the Customer seeks information or clarification relating to an Invoice including without limitation seeking clarification of charges or sources of usage. For the avoidance of doubt, this is not a Billing Dispute.
Business Day” means any day other than a Saturday or Sunday or a public holiday observed as such in the Republic of South Africa.
Business Hours” means 08h00–16h30 on Mondays–Thursdays, and 08h00–15h00 on Fridays.
Complaint” means an expression of dissatisfaction or grievance made by a Customer, but does not include a request for information. Billing Disputes are a specific form of Complaint dealt with only under the Hymax Billing Disputes Handling Procedure.
Customer” means a Hymax subscriber or potential subscriber.

Key Commitments

6. Hymax makes the following key commitments and will endeavour to:
6.1. Act in a fair, reasonable and responsible manner in all dealings with Customers;
6.2. Ensure that all its services and products meet the specifications as contained in Hymax’s licences and all the relevant laws and regulations;
6.3. Not unfairly discriminate against or between Customers on the basis of race, gender, sex, age, religion, belief, disability, ethnic background or sexual orientation;
6.4. Display utmost courtesy and care when dealing with Customers;
6.5. Provide Customers with information regarding services and pricing;
6.6. Where requested to do so provide Customers with guidance with regard to their service needs; and
6.7. Keep the personal information of Customers confidential unless Hymax is:
6.7.1. Otherwise authorised or required by law or order of Court;
6.7.2. In possession of written authorisation from the Customer to do so; and/or
6.7.3. Required to release such information for the purpose of briefing Hymax’s auditors or professional advisors or an accredited debt collection agency.
7. Subscribers and potential subscribers have the right to refer Complaints to ICASA as more fully set out below.

Consumer rights

8. The ICASA Code of Conduct Regulations 2008 stipulate the following (non-exhaustive) list of consumer rights held by subscribers and potential subscribers:
8.1. A right to be provided with the required service without unfair discrimination;
8.2. A right to choose the service provider of your choice;
8.3. A right to receive information in your preferred language (Hymax will do its best to meet this request where reasonable);
8.4. A right to access and question records held by Hymax and which relate to the Customer’s relationship with Hymax;
8.5. A right to the protection of the Customer’s personal data, including the right not to have personal data sold to third parties without the Customer’s permission;
8.6. A right to port a number in terms of applicable regulations;
8.7. A right to lodge a complaint; and
8.8. A right to redress.

Availability of Information

9. The following information can be obtained from the Hymax website (http://www.hymax.co.za) or by email request to info@hymax.co.za (with no charge payable), and is available for inspection at Hymax’s offices during Business Hours:
9.1. Hymax’s range of services / products on offer;
9.2. Tariff rates applicable to each service offered;
9.3. Terms and conditions applicable to such services / products;
9.4. Payment terms;
9.5. Billing, billing processes and the Billing Disputes Handling Procedure;
9.6. Complaints Handling Procedure, and
9.7. Relevant contact details

Billing

10. Hymax will provide the Customer with an itemised bill or invoice on request or where this is specified as part of the services provided to the Customer.
11. Billing terms are also set out on Hymax’s invoices.

Defective items

12. Where a product such as a modem is defective, Hymax will replace it in accordance with the manufacturer’s warranty for that product.

Vetting of applications and use of credit registered credit bureaux

13. Where applicable, Hymax reserves the right to subject any application for services and/or products, including variations to existing services and/or products, to credit referencing and analysis by registered credit bureaux, and the Customer consents to the use of all information supplied for this purpose and for the purpose of compliance with the National Credit Act 34 of 2005.

Written terms and conditions of service

14. Hymax will provide the Customer with a copy of the written terms and conditions upon finalisation of a service agreement or as soon as is reasonably possible thereafter. Where an agreement is entered into telephonically, a copy of the written terms and conditions thereof will be provided to the Customer within seven (7) Business Days.
15. Where Hymax affect changes to the terms and conditions of its service, Hymax will inform the Customer of such changes within a fair and reasonable period.

Minimum standards for the services offered by Hymax

16. Hymax will, subject to events and conduct beyond its reasonable control,
16.1. provide a minimum of 95% network service availability measured over six (6) months;
16.2. provide a minimum of 95% service availability measured over six (6) months;
16.3. attain a 90% success rate in meeting requests for installation and activation of service for qualifying service applicants within thirty (30) Business Days, while meeting the balance of requests within forty (40) Business Days;
16.4. provide full reasons to the Customer where Hymax is not able to meet a request for service within these time periods within seven (7) Business Days of receipt of request for same;
16.5. attain a 90% success rate within seven (7) Business Days in meeting requests for activation of a service while meeting the balance of requests within fifteen (15) Business Days;
16.6. provide full reasons to the Customer where Hymax is not able to meet a request for activation within these time periods within seven (7) Business Days of receipt of request for same;
16.7. maintain an average of 90% fault clearance rate for all faults reported within three (3) Business Days, with the balance to be cleared within six (6) Business Days of the reporting of the fault;
16.8. respond within three (3) minutes (averaged over six months) to any call directed to the Hymax call centre;
16.9. monitor its network 24/7/365.
17. Customers acknowledge that Hymax is directly dependent on network and other services provided by third parties in providing the services and meeting the standards set out above, and that Hymax cannot be held liable in any manner whatsoever for any failure to meet such standards where this results from the acts and/or omissions of such third parties.

Miscellaneous

18. Any queries relating to this Code of Conduct should be sent to info@hymax.co.za.
19. This Code of Conduct forms part of the Terms and Conditions applicable to the use of Hymax’s services and products and is incorporated therein.

Last updated: 27 November 2013
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Hymax General Complaints Handling Procedure

1. This Procedure applies to all complaints other than Billing Disputes which are dealt with under the Hymax Billing Disputes Handling Procedure.
2. The Customer is required to direct a general complaint to complaints@hymax.co.za.
3. The Complaint is required to be accompanied by the following;
3.1. The Customer’s full particulars and contact details;
3.2. The Customer’s relationship with Hymax, together with any customer reference which may be applicable;
3.3. A statement of the reasons for the Complaint with enough detail to allow Hymax to assess these; and
3.4. Any relevant evidence or documentation the Customer wishes to submit in support of the Complaint.
4. Following the ICASA Code of Conduct Regulations, Hymax will:
4.1. Acknowledge receipt of the Complaint within three (3) Business Days; and
4.2. Determine an outcome for the complaint and communicate this to the Customer within fourteen (14) Business Days.

Referral of Complaints to ICASA

5. If the Customer is not happy about the outcome of the Complaint, the Customer has the right to escalate it to ICASA. If ICASA are not able to resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.
6. Please note that under the ICASA Code of Conduct Regulations 2008, the Customer must give Hymax an opportunity to resolve the matter within the 14-day period before the Customer may escalate the Complaint to ICASA.
7. ICASA can be contacted in the following ways:
7.1. telephone: 011 566 3000;
7.2. fax: 011 444 1919; and/or
7.3. email: consumer@icasa.org.za.

Last updated: 27 November 2013
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Hymax Billing Disputes Handling Procedure

Purpose of this Procedure

1. This Procedure sets out the obligations of Hymax SA (Pty) Ltd (“Hymax”) and the Customer in resolving a Billing Dispute, including the manner in which Billing Disputes should be lodged and how they will be handled thereafter.
2. Hymax’s Billing Dispute Handling Procedure is intended to service the interests of both the Customer and Hymax, by setting out clear rules and procedures to be used where Billing Disputes may occur.

Definitions

Billing Dispute” means an instance where a Customer states in good faith that their bill contains incorrect charges, payments or adjustments.
Billing Dispute Notice” means a notice submitted by the Customer in terms of this Procedure.
Billing Disputes Handling Procedure” and “this Procedure” mean this Billing Disputes Handling Procedure for the initiation and resolution of Billing Disputes.
Billing Enquiry” means the situation where the Customer seeks information or clarification relating to an invoice including without limitation seeking clarification of charges or sources of usage. For the avoidance of doubt, this is not a Billing Dispute.
Business Day” means any day other than a Saturday or Sunday or a public holiday observed as such in the Republic of South Africa;
Complaint” means an expression of dissatisfaction or grievance made by a Customer, but does not include a request for information. A Complaint is not a Billing Dispute.

General

3. Any charge recorded on an invoice (the subject of a Billing Dispute) which is not submitted in accordance with this Procedure is payable in full to Hymax by the due date of the invoice.
4. For the avoidance of doubt, the parties expressly acknowledge and agree that:
a. An amount that is not in dispute (“Undisputed Amount”) cannot be withheld for any reason (including without limitation when that amount is on an invoice together with an amount that is in dispute (“Disputed Amount”)).
b. Only Billing Disputes can trigger the Billing Disputes Handling Procedure (and the potential right to withhold payment of Disputed Amounts from Hymax as set out below).
c. Billing Enquiries and Complaints are not Billing Disputes and do not trigger the Billing Disputes Handling Procedure. Billing Enquiries should be directed to billing@hymax.co.za, and Complaints are dealt with under the Hymax Complaints Handling Procedure.
5. Please note that Hymax will not entertain any Billing Dispute based on unauthorised use of the services or on unauthorised use of the services by a third party, it being the Customer’s responsibility to safeguard access to the services which they receive and to use them in the manner set out in the terms and conditions applicable thereto.

Customer’s obligations to first use this Procedure

6. As a current or prior subscriber of Hymax, the Customer agrees to allow Hymax to attempt settlement of any Billing Dispute for fourteen (14) Business Days before raising a dispute with any third party, credit card company or bank. Hymax requires and Customer agrees that Hymax be the first option in Billing Disputes. Should Hymax receive a chargeback or other reversed charge from a third party, credit card company or bank on behalf of the Customer before Hymax has been given a chance to resolve the Billing Dispute, Hymax has the right to collect on the rendered services and any fees associated with those disputes.
7. Not all Billing Disputes may be settled to the Customer’s satisfaction. Once this Procedure has been exhausted, a Customer may use any third party, credit card company or bank in an attempt to settle the dispute. However, Hymax still retains the right to collect on any rendered services or fees that are due. Should Hymax be unable to reverse any disputed amounts with a third party, credit card company or bank, Hymax will submit the full delinquent amount for collection.

Time period within which Billing Disputes can be initiated

8. A Billing Dispute Notice may be lodged in the required manner until the passing of thirty (30) calendar days from the date of the relevant invoice.

Circumstances under which payment of a Disputed Amount may be withheld

9. The Customer may only withhold payment of a Disputed Amount where Hymax receives a valid Billing Dispute Notice relating to such Disputed Amount at least five (5) Business Days prior to the due date recorded on the relevant invoice.

Billing Dispute Notice

10. A Billing Dispute can only be validly initiated through the submission of a valid Billing Dispute Notice by sending an email to billing@hymax.co.za.
11. The Billing Dispute Notice should clearly set out:
a. Invoice number and date;
b. The amount in dispute (“the Disputed Amount”);
c. The amount not in dispute (“the Undisputed Amount”);
d. The full details of the dispute; and
e. Any relevant evidence or documentation the Customer wishes to submit in support of the Complaint.

Response to Billing Dispute Notice

12. In terms of the ICASA Code of Conduct Regulations, Hymax will acknowledge receipt of the Complaint within three (3) Business Days.
13. Hymax shall provide a response to the Billing Dispute Notice within fourteen (14) Business Days, which response shall take one of the following forms:
a. A rejection of the Billing Dispute Notice on the basis that:
i. The Billing Dispute Notice was not received by Hymax within thirty (30) calendar days of the date of the relevant invoice;
ii. The Billing Dispute Notice does not contain all of the information set out in clause 11 of this Billing Dispute Procedure or was not submitted in accordance with clause 10;
iii. The Customer has not made payment in accordance with (and does not have a right to withhold payment) in terms of clauses 3, 4.a and 9 of this Procedure;
iv. Hymax has confirmation from the Customer that the dispute which is the subject of the Billing Dispute Notice has been resolved;
v. The Customer is disputing the charges on the basis that the Customer did not authorise the particular use of the services by another person; or
vi. Hymax reasonably believes that the Customer does not have a bona fide dispute in relation to the charges.
b. A request for information or documentation from the Customer lodging the Billing Dispute Notice, which information or documentation is reasonably required to assist Hymax in making a determination in the matter – the Customer shall provide such information or documentation as soon as possible, and the running of the fourteen (14) Business Day period will be suspended until such time as it has been received by Hymax.
c. A determination of the Billing Dispute and the reasons for such determination.

Referral to Senior Management

14. If the Customer is not satisfied with Hymax’s response under clause 13, then the Customer must notify Hymax by email to billing@hymax.co.za within three (3) Business Days of receiving Hymax’s response that the Customer wants the matter referred to Hymax’s Senior Management (“SM Request”).
15. Subject to the Customer complying with clause 14, both parties agree:
a. To ensure that Senior Management meet to resolve the dispute within fourteen (14) Business Days of Hymax receiving the SM Request;
b. Any decision of the Senior Management will be final and binding on both parties.
16. Both parties acknowledge and agree that if Hymax does not receive a notification from the Customer in accordance with clause 14 then the Billing Dispute will be deemed to have been resolved in accordance with the response provided under clause 13 and Hymax will have no further obligations in relation to the Billing Dispute.

Resolution, Agreement or Determination

17. If stipulated under Hymax’s response under clause 13 or where Senior Management agree on a resolution or reach a decision under clause 14 that the Customer must make payment of a Disputed Amount, the Customer must pay the Disputed Amount within five (5) Business Days of the date of the determination.
18. If stipulated under Hymax’s response under clause 13 or where Senior Management agree on a resolution or reach a decision under clause 14 that Hymax must withdraw the disputed charge or refund a disputed charge previously paid, Hymax must as soon as practicable:
a. Provide the Customer with an adjustment to their account reflecting the decision above. It is intended that this adjustment will appear on the next invoice issued to the Customer (which the Customer must pay in accordance with the agreement for services that it has with Hymax), but the parties acknowledge that this may be delayed due to timing issues with the decision and Hymax’s standard billing terms; and
b. Credit any Disputed Amount already paid by the Customer.
19. Where a resolution or determination is made in accordance with clauses 18.a or 18.b then, subject to either party meeting the payment obligations specified in such resolution or determination, the Billing Dispute will be deemed to be resolved and Hymax will have no further obligations in relation to the Billing Dispute.

Effect of this Procedure on continued service provision

20. Hymax will not disconnect a service provided to the Customer which is the subject of a Billing Dispute or take adverse collection procedures or impose late payment penalties or charges while attempting to resolve a Billing Dispute lodged in terms of this Procedure and until such time as Hymax has reached a determination and communicated this to the Customer.
21. Hymax reserves the right, however, to take such measures immediately:
a. Where a determination of the Billing Dispute has been made and communicated to the Customer; or
b. Where the Customer has indicated that they are unable to pay the invoice or bill, or have filed or are the subject of any application to court for sequestration or liquidation, or otherwise seek to reach a formal arrangement with their creditors.
22. Subject only to the above, the rights and obligations of each party under the Billing Dispute Procedure continue pending resolution of a Billing Dispute invoked under this Billing Dispute Procedure. For the avoidance of doubt this includes that Hymax shall continue to have the right to terminate or suspend the service in accordance with Hymax’s rights under the agreement that the Customer has with Hymax.

Confidentiality

23. Neither party shall use any information obtained from the other party during the course of any process invoked under this Procedure for any purpose other than the resolution of the particular Billing Dispute.

Traffic Overage Disputes

24. Should the Customer wish to dispute a traffic overage charge, they may do so by following the Billing Dispute Procedure and requesting an overage investigation.
25. Should, however, the traffic usage be accurate (within a 5% margin), a once-off charge of R150.00 per domain/server will be applied to the Customer’s account.

Realm Data Traffic Disputes

26. Should the Customer wish to dispute a traffic usage charge on the Customer’s realm, they may do so by following the Billing Dispute Procedure and requesting a data usage investigation.
27. Should, however, the data usage be accurate (within a 5% margin), a once-off charge of R150.00 per realm will be applied to the Customer’s account.

Referral of Billing Disputes to ICASA

28. If the Customer is not happy about the outcome of the Complaint, the Customer has the right to escalate it to ICASA. If ICASA cannot resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.
29. ICASA can be contacted in the following ways:
a. Telephone: 011 566 3000;
b. Fax: 011 444 1919; and/or
c. email: consumer@icasa.org.za.

Last updated: 27 November 2013
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Acceptable Use Policy

1. By using Hymax SA (Pty) Ltd’s (“Hymax”) services, you agree to comply with Hymax’s Policies and Procedures, including this Acceptable Use Policy (AUP).

General and Acceptable Use

2. You are expected to use the Internet and other networks and services access through the services with respect, courtesy, and responsibility, giving due regard to the rights of other Internet users. Hymax expects you to have a basic knowledge of how the Internet functions, the types of uses which are generally acceptable, and the types of uses which are to be avoided. Common sense is the best guide as to what is considered acceptable use.

Unacceptable Use

3. Illegality in any form, including but not limited to activities such as unauthorised distribution or copying of copyrighted material, violation of export restrictions, harassment, fraud, trafficking in obscene material, child sexual abuse imagery, drug dealing, and other illegal activities.
4. Hymax’s services and servers may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes a legal threat, or violates export control laws. Examples of unacceptable content or links: Pirated software, Hackers programs or archives, Warez Sites, Irc Bots, Illegal MP3s, etc.
5. Posting of defamatory, scandalous, violent or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights will be considered unacceptable use.
6. Any unacceptable use of the services constitutes a material breach of the Terms and Conditions of Service and/or Terms and Conditions of Use of the website, and Hymax fully and strictly reserves its rights in this regard.

Interpretation

7. The provisions of this AUP are intended as guidelines and are not meant to be exhaustive. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this AUP, is prohibited. Hymax reserves the right at all times to prohibit activities that damage its commercial reputation and goodwill.

System and Network Security

8. Violations of system or network security are prohibited, and may result in criminal and civil liability.
9. Examples include, but are not limited to the following:
9.1. unauthorised access, use, probe, or scan of a systems security or authentication measures, data or traffic;
9.2. interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
9.3. forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; and
9.4. employing posts or programs which consume excessive CPU time or storage space, permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for their own account; or resale of access to CGI scripts installed on our servers.

Spamming

10. Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A user shall not use another site’s mail server to relay mail without the express permission of the site or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial email or spam.
11. It is contrary to Hymax’s policy for customers to use our servers to effect or participate in any of the following activities:
11.1. To post to any Usenet or other newsgroup, forum, email mailing list or other similar group or list articles which are off-topic according to the charter or other owner-published FAQ or description of the group or list;
11.2. To send unsolicited mass emails, if such unsolicited emails provoke complaints from the recipients;
11.3. To engage in any of the foregoing activities using the service of another provider, but channelling such activities through a Hymax-provided server, or using a Hymax-provided server as a maildrop for responses;
11.4. To falsify user information provided to Hymax or to other users of the service in connection with use of a Hymax service.

Determination of a Breach of this AUP

12. Hymax will be the sole arbiters and have a sole and unfettered discretion in determining what constitutes a violation of this AUP.

Consequences of Breach of this AUP

13. When Hymax becomes aware of an alleged violation of its AUP, Hymax will initiate an investigation (within 24–48 hours). During the investigation, Hymax may restrict the user’s access in order to prevent further possible unauthorised activity.
14. If the user is found in violation of Hymax’s SPAM policy, Hymax may, at its sole discretion, restrict, suspend, or terminate Customer’s account and/or pursue other civil remedies. Hymax also reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. If such violation is a criminal offence, Hymax will notify the appropriate law enforcement department of such violation.
15. Hymax does not issue service credits for any outages incurred through service disablement resulting from AUP violations.
16. The user shall be held liable for any and all costs incurred by Hymax as a result of the user’s violation of this AUP. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorised bulk mailings and/or news server violations.
17. First violations will result in a Cleanup Fee of R1 500 and the user’s account will be reviewed for possible immediate termination.
18. A second violation will result in Cleanup Fee of R3 500 and immediate termination of the user’s account.
19. The user who violates this AUP agrees to also pay Investigation Fees of no more than R1 500 per hour that Hymax personnel must spend to investigate any violations.

Modification

20. Hymax reserves the right to add, delete, or modify any provision of this AUP at any time without notice.

Reporting Network Abuse

21. Any party seeking to report any violations Hymax’s policy may contact via e-mail: complaints@hymax.co.za

Last updated: 27 November 2013
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Take-Down Notifications

In terms of section 75 of the Electronic Communications and Transactions Act 25 of 2005 (“the ECT Act”), Hymax has designated the Internet Service Providers’ Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the ECT Act.
Should you believe that material hosted by Hymax infringes your rights or should otherwise be taken down, please contact ISPA.
The ISPA Take-Down Guide is available at http://www.ispa.org.za/code-of-conduct/take-down-guide.
For further details contact the Internet Service Providers’ Association
– Postal address: PO Box 518, Noordwyk, 1687
– Voice: 010 500 1200
– Fax: 011 678 2097
– email: takedown@ispa.org.za

Last updated: 27 November 2013
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Customer Registration under RICA

Hymax SA (Pty) Ltd is required under section 39 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 to obtain certain information from applicants for services prior to activating such services.
Please ensure that you have the following available when applying so as to streamline the process:
Individuals
• name, identity number, residential and postal or business addresses and proof thereof; and
• Certified copy of identity document where name, photograph and identity number appear.
Juristic person (Companies, CCs, Trusts, etc)
• name, identity number, residential and postal or business addresses of representative;
• name of juristic person, business address and registration number (if registered)
• Certified copy of identity document of representative, where name, photograph and identity number appear; and
• Certified photocopy of the business letterhead.
NB! It is a criminal offence to submit invalid identification documentation or an identity document not belonging to the person in whose name the application is being made and Hymax is required by law to report any attempt to do this to the South African Police Services.

Last updated: 27 November 2013
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Protection of Minors

Hymax SA (Pty) Ltd supports a child-safe Internet. The following sites have useful information or programs for protecting minors from problematic online content:
Mobilebroadband: index to resources for Internet Safety for Kids
NetSafe: the website of the Internet Safety Group of New Zealand
WiredSafety.org: the world’s largest Internet safety and help group
Cyberangels: World’s oldest and largest Internet safety organisation
GetNetwise: Educating parents and children about how to use the Internet safely
KidShield: Tools and information to create a safety net for your children online
ProtectKids.com: Protecting children in cyberspace
SafeKids.com: Making your family’s online experience fun and productive
WiredKids: Online safety for kids and teens
• Chatting with kids about being online (pdf) (From http://www.onguardonline.gov/)
Last updated: 27 November 2013
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