1.1 “agreement” means this subscriber agreement read together with the application form;
1.2 “Airband” means Airband High Speed Internet (Pty) Limited, Registration No. 2006/023838/07;
1.3 “application form” means the hardcopy or electronic document containing the customer’s request for provision of the services;
1.4 “connection charge” means the initial charge for connection to the network as set out in the application form;
1.5 “contract period” means the minimum duration of this agreement, being the period as set out in the application form;
1.6 “customer” means the individual, company, close corporation or trust described as such on the application form;
1.7 “equipment” means the wireless radio equipment of Airband;
1.8 “ICASA” means the Independent Communication Authority of South Africa or any other authority vested with the power and authority in respect of telecommunication in the Republic of South Africa;
2 PROVISIONS OF THE SERVICES
2.1 Airband agrees to supply the services to the customer and the customer agrees to accept same.
3.1 This agreement shall commence on the date specified in the application form and shall continue for the contract period and thereafter automatically renew month to month unless terminated by either party giving 3 (three) month’s prior to the end of the contract period written notice to the other of termination of this agreement.
3.2 During the first 30 days of this agreement, the customer may cancel the service and terminate the agreement for any reason.
4.1 The customer shall be invoiced monthly in advance for the subscription fees. All invoiced payments are due and payable without deduction or set-off, by direct debit order or in such other manner as Airband may allow in writing, on or before the 1st working day of each month to Airband.
4.2 Failure to make payment of any such amounts invoiced to the customer as set out in this agreement shall result in the suspension of services without any liability being incurred by Airband to the customer.
4.3 Any amount due by the customer to Airband which remains unpaid on the due date, shall bear interest at the maximum rate allowable in terms of the Usury Act, 1968, as amended, calculated from the date payment falls due to date of actual payment compounded monthly. Any amounts payable shall be allocated first to costs, collection commission, interest and then capital.
4.4 In the event of the customer’s services being reconnected after being discontinued, suspended or disconnected, for any reason whatsoever, a reconnection fee will be levied.
5 TERMS AND CONDITIONS OF SERVICES
5.1 Service quality and coverage available to the customer shall be limited to that provided by the network and the services may from time to time be adversely affected by physical features and atmospheric conditions and other causes of interference.
5.2 The customer shall not hold Airband, any of its employees, directors or agents liable for any non-availability or degradation of the services or for any other reason whatsoever.
5.3 Services are used at the customer’s own risk and Airband makes no warranty and or guarantee that the services will meet the customer’s requirements, be uninterrupted, complete, timely, secure or error free.
5.4 Airband may collect and use the customer’s personal information and or other data for the purposes of business communications, administration, transacting and any other reason permitted by law.
5.4 The antennas, radios and routers used to deliver the service are the property of Airband. Airband may add additional equipment to the customers site in order to strengthen network coverage.
6.1 Airband’s entire liability including liability for negligence, and in particular, but without limitation, all other statutory, express, implied or collateral terms, common law recourse, conditions or warranties which are excluded will not exceed the amounts set out in Clause 6.5.
6.2 Airband shall not be liable (including liability for negligence) and the customer accordingly indemnifies Airband and holds it harmless against all and any loss or damage or injury to the customer whatsoever, no matter when or how arising out of the provision of the services, including, without limitation, any loss and/or damage to the customer’s or any third person’s data, whether such loss, damage or injury is direct or indirect, consequential or contingent and whether foreseeable or not and in particular not be liable for financial loss or loss of profits.
6.3 The customer, further irrevocably indemnifies and hold Airband harmless against all and any actions (including direct, indirect, special or consequential damages), suits, proceedings, claims, demands, costs, loss of income and, expenses of whatsoever nature and howsoever incurred which may be taken or made against them or be incurred or become payable by the customer or any third party, arising out of this agreement including but not limited to the customer’s negligence or fraud.
6.4 This indemnity applies for Airband’s benefit and all companies directly or indirectly owned, wholly or partly owned or controlled by Airband, and all officers, employees, contractors, subcontractors, agents or anyone else to whom Airband or these parties are responsible for.
6.5 Under no circumstances whatsoever, will Airband’s liability, whether in contract or otherwise, exceed a sum equal to the subscription fee only, payable at the date of the claim.
7 ABUSE OF THE SERVICES
7.1 The customer acknowledges and agrees that it is aware of and shall at all times comply with all statutory or other regulatory provisions relating to wireless telegraphy and telecommunication services.
7.2 The customer shall not commit nor attempt to commit any act or omission which directly or indirectly which damages in any way Airband’s network or technical infrastructure or any part thereof, or which impairs or precludes Airband from being able to provide the services in a reasonable and businesslike manner.
8 SUSPENSION OF SERVICE
8.1 Airband may from time to time without notice and without any liability whatsoever, suspend the services :-
8.1.1 for modification or maintenance of the network; or
8.1.2 if the customer fails to make any payment of any amount due or payable to Airband on or before the due date of payment; or
8.1.3 if the customer fails to comply with any of the terms and conditions of this agreement and until the breach is remedied.
9.1 If the customer commits a breach of any of the terms and conditions of this agreement and fails to remedy such breach within a period of 7 (seven) days of having been given notice by Airband requiring such breach to be remedied, Airband may, without prejudice to any other rights it may have, whether to claim damages, specific performance or otherwise, cancel this agreement without further notice.
10 FORCE MAJEURE
10.1 Airband shall not be liable to the customer for any breach of these terms and conditions or failure on Airband’s part to perform any obligation as a result of the technical problems which it is unable to resolve, relating to the network, termination of any licence to operate or use of the network, act of God, Government control, restriction or prohibitions or any other, Government act or omission whether local or national, act or default of any supplier, agent, or sub-contractor, industrial disputes of any kind or any other similar or dissimilar cause beyond Airband’s control.
11 SUBSCRIPTION FEES
11.1 Airband may upon notice vary its subscription fees. Subscription fees will be adjusted annually on or before 1 January of each year.
11.2 Airband reserves the right to vary the terms and conditions of this agreement in its sole discretion, as a result of new legislation, statutory instruments, Government regulations or licences or any other reason by notice to the customer.
12.1 The customer chooses, as its domicilium citandi ex executandi, for the purpose of service of legal proceedings and notices, the address set out in the application form, or such other physical address in the Republic of South Africa of which the customer may notify Airband in writing.
13 GENERAL PROVISIONS
13.1 The customer shall not cede, assign, transfer, encumber or delegate any of its rights or obligations in terms of this agreement to any third party without Airband’s prior written consent.
13.2 This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties regarding the subject matter hereof other than those set out herein are binding on the parties unless in writing and save as otherwise provided for in the clauses above.
13.3 The customer hereby consents to the jurisdiction of the Magistrate’s court having jurisdiction over its person in respect of any action by Airband arising from this agreement or the cancellation thereof. Airband shall be entitled, in its discretion to institute action against the customer in any Court of competent jurisdiction.
13.4 No latitude, extension of time or other indulgence which may be given or allowed by Airband to the customer in respect of the performance of any obligations hereunder, and no delay in the enforcement of any right of Airband arising from this agreement, and no single or partial exercise of any right by Airband under this agreement, shall in any circumstances be construed to be an implied consent or election by Airband or operate as a waiver or a novation or otherwise affect any of Airband’s rights in terms of or arising form this agreement or stop or preclude any Airband from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term of this agreement.
13.5 This agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
13.6 The headings in this agreement are used for ease of reference only and will have no bearing on the interpretation of the terms of this agreement.