123NET STANDARD TERMS AND CONDITIONS
NOTICE OF CERTAIN TERMS AND CONDITIONS
BY MAKING USE OF THE SERVICES AND/OR PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
1. INTRODUCTION
1.1. The following terms and conditions form part of the Service Agreement entered into between the Service Provider and the Subscriber.
1.2. By signing the Service Agreement the Subscriber acknowledges that he:
1.2.1. has carefully read all the terms and conditions below;
1.2.2. fully understands and appreciates the meaning and effects thereof; and
1.2.3. accepts and is bound by the terms of the Agreement (which includes these Standard Terms and Conditions which form a part thereof).
1.3. The Subscriber’s attention has further been drawn to certain terms and conditions contained below which due to their nature, may be somewhat onerous on the part of the Subscriber. By signing the Agreement the Subscriber further acknowledges that he accepts all such terms and conditions.
2. MEANING OF CERTAIN WORDS AND PHRASES
2.1. In the Agreement and for the purposes of interpreting and understanding the Agreement:
2.1.1. words which make reference to the singular shall include a reference to the plural and vice versa;
2.1.2. words which make reference to one gender shall include the other gender; and
2.1.3. any reference to a person shall include a juristic person (which is a legal structure other than a natural person, such as for example, a company, body corporate, firm or association) and vice versa.
2.2. In the Agreement unless inconsistent with the context, the following words and expressions shall mean the following:
2.2.1. “the Agreement” - means these Standard Terms and Conditions, the face of the Agreement, as well as all schedules and/or annexures which are attached herewith as well as any other terms and conditions which 123NET may, from time to time, impose in respect of the services;
2.2.2. “Business Hours” – means 07H30 to 16H30 on each and every day of the week;
2.2.3. “Business Days” - means weekdays except for weekends and public holidays in the Republic of South Africa;
2.2.4. “CPA” - means the Consumer Protection Act No. 68 of 2008 as amended from time to time together with the Regulations promulgated thereby;
2.2.5. “Commencement Date” - means the date on which the services first commence which shall be on the day on which the Subscriber’s account has been activated and is connected to 123NET’s network infrastructure;
2.2.6. “Days” means ordinary calendar days;
2.2.7. “Equipment” - means all equipment provided and installed by 123NET on the premises as well as any other equipment in whatever format which is provided by 123NET to the Subscriber in order to enable 123NET to carry out its services in terms hereof;
2.2.8. “the Fixed Term Period” - means the period selected by the Subscriber on the face of the Agreement and which period is for a fixed and/or definite period, for example the six month or the twelve month or the twenty four months period;
2.2.9. “Holiday package” – means the package selected by the Subscriber on the face of the Agreement the duration of which is to operate on a weekly basis;
2.2.10. “Month-to-month Period” – means:
2.2.10.1. the period selected by the Subscriber on the face of the Agreement the duration of which is to operate on a monthly basis; or
2.2.10.2. the period following the expiry of the fixed term period (where applicable);
2.2.11. “Non-fixed term Period” – means the period selected by the Subscriber on the face of the Agreement, for example, the holiday package or the month-to-month agreement;
2.2.12. “the Parties” - means 123NET and the Subscriber, the details whereof appear on the face of the Agreement;
2.2.13. “the Services” - means the services which will be provided by 123NET at the premises as described in paragraph 4 below and elsewhere in the Agreement.
3. THE PREMISES
3.1. The Subscriber hereby acknowledges and understands that the Agreement has been entered into solely on the basis that the services to be provided by 123NET in terms of the Agreement are to be rendered solely at the premises which appear on the face of the Agreement.
3.2. In the event of the Subscriber moving to new premises after having entered into the Agreement the Subscriber shall give 123NET at least thirty (30) days’ notice of the Subscriber’s intention to move to new premises. In such written notice, the Subscriber must specify the full physical address of the new premises.
3.3. Should 123NET upon having received the written notice referred to in paragraph 3.2 above not be able to provide the services at the new premises, 123NET shall notify the Subscriber in writing that:
3.3.1. the Agreement shall terminate after a period of thirty (30) days from the date of 123NET’s written notice;
3.3.2. the Subscriber shall be liable to pay an early cancellation fee which shall be stipulated in such written notice; and
3.3.3. all equipment owned by 123NET and which has been installed on the existing premises by virtue of the Agreement shall be dealt with in terms of the provisions of paragraphs 5.2 and 5.3 below.
3.4. In the event of 123NET being able to provide the services at the new premises specified in the notice referred to in paragraph 3.2 above, a new written agreement shall be entered into between 123NET and the Subscriber.
3.5. In the event of the Subscriber moving to new premises without complying with any of the provisions contained in paragraphs 3.3 and 3.4 above, this shall be regarded by 123NET as a material breach of the terms of the Agreement which entitles 123NET to immediately cancel the Agreement and to exercise its rights to claim from the Subscriber all the amounts which 123NET may recover from the Subscriber by virtue of the Subscriber’s breach of the terms of the Agreement and the resulting premature cancellation thereof.
4. THE SERVICES TO BE PROVIDED BY 123NET
4.1. 123NET agrees to provide the Subscriber with internet access and fast network services at the premises by means of its optic fibre network infrastructure or other type of network delivery in accordance with the package chosen by the Subscriber on the face of the Agreement.
4.2. 123NET reserves the right to amend at any time any of the technical parameters or specifications relating to the services provided that the Subscriber shall be given reasonable notice of such amendment.
5. THE EQUIPMENT TO BE PROVIDED BY 123NET
5.1. The equipment which shall be provided and installed by 123NET at the premises in order to enable the Subscriber to be connected to 123NET’s network infrastructure shall consist of:
5.1.1. an Optic Fibre Network Unit (which in technical terms is referred to as “ONU”) if the installation is in the form of a fibre network installation. In such event 123NET shall at all times be the owner thereof;
5.1.2. the Wi-Fi equipment if the installation is in the form of a fixed Wi-Fi installation. In such event 123NET shall at all times be the owner thereof;
5.1.3. the Customer Premises Equipment (which in technical terms is referred to as “CPE” and is generally known as the router), 123NET being at all times herein the owner thereof unless the Subscriber has purchased and paid for the router.
5.2. Should the Agreement be terminated for whatever reason and unless otherwise expressly provided for in the Agreement, within a period of no longer than seven days from the date of the termination of the Agreement:
5.2.1. the Subscriber must return the ONU and its power supply to 123NET;
5.2.2. the Subscriber must return the router and its power supply to 123NET if the router is owned by 123NET; and
5.2.3. 123NET’s technicians shall remove the Wi-Fi equipment from the premises. Due to the sensitive nature of this equipment it can only be removed from the premises by a technician appointed by 123NET.
5.3. In the event of any of the equipment not being returned to 123NET within the aforesaid period of seven (7) days or should such equipment be found to be damaged upon being returned back to 123NET, the Subscriber shall in addition to any other amounts owing to 123NET in terms of the Agreement, be liable for paying the costs of replacing such equipment, due consideration being given to normal wear and tear.
6. THE DURATION OF THE AGREEMENT IN RESPECT OF NON-FIXED TERM PERIOD
6.1. The provisions of this paragraph 6 will only apply in the event of:
6.1.1. the Subscriber having chosen a non-fixed term period package; or
6.1.2. the expiry of the fixed term period unless otherwise expressly provided for in the Agreement and subject to any other applicable terms and conditions contained in the Agreement.
6.2. The Agreement will in such event commence on the commencement date and will endure for the period / package (being “the non-fixed term period”) selected by the Subscriber on the face of the Agreement, unless otherwise expressly provided for in the Agreement.
6.3. In the event of the non-fixed term period being in the form of a holiday package and unless otherwise expressly provided for in the Agreement, the Agreement will commence on the date of installation and thereafter the service can be activated on either a one, two or four-week prepaid period basis with a new commencement date selected by the Subscriber.
6.4. In the event of the non-fixed term period being in the form of a month-to-month package and unless otherwise expressly provided for in the Agreement, will continue to operate on a month-to-month basis commencing on the commencement date provided that either party to the Agreement may terminate the Agreement by giving to the other party not less than one calendar month’s written notice.
6.5. In the event of the Agreement being terminated prematurely due to a breach on the part of the Subscriber of any of its obligations in terms of the Agreement 123NET shall be entitled to claim damages from the Subscriber (in addition to any other amounts which may be due by the Subscriber in terms of the Agreement) which shall be calculated on the following basis:
6.5.1. all the remaining subscriptions due for the remainder of the non-fixed term period; plus
6.5.2. 123NET’s CPE cost (if applicable); plus
6.5.3. the once-off installation and/or activation charges (if applicable).
7. THE DURATION OF THE AGREEMENT IN RESPECT OF THE FIXED TERM PERIOD
7.1. The provisions of these paragraphs 7 shall only apply in the event of the Subscriber having selected a package on the face of the Agreement, the duration of which is to operate for a fixed term period.
7.2. The Agreement will in such event commence on the commencement date and will endure for the fixed term period relating to the package selected by the Subscriber on the face of the Agreement, unless otherwise expressly provided for in the Agreement.
7.3. If the Subscriber is a natural person and unless otherwise expressly provided for in the Agreement:
7.3.1. 123NET shall notify the Subscriber in writing thirty (30) days of the impending expiry date and in such written notice, 123NET shall state:
7.3.1.1. any material changes that would apply if the Agreement is to be renewed or may otherwise continue beyond the expiry date; and
7.3.1.2. the options available to the Subscriber should the Subscriber wish to extend the Agreement and/or enter into a new written agreement with 123NET.
7.3.2. On the expiry of the fixed term period, the Agreement will automatically continue on a month–to-month basis subject to any material changes of which 123NET has given in terms of the notice referred to in paragraph 7.3.1 above unless:
7.3.2.1. the Subscriber expressly notifies 123NET in writing at least one month prior to the expiry of the fixed term period of its intention to terminate the Agreement on the expiry date; or
7.3.2.2. the Subscriber agrees to a renewal of the Agreement for a further fixed term.
7.3.3. The Subscriber may cancel the Agreement provided that:
7.3.3.1. the Subscriber gives 123NET the written notice to terminate the Agreement in terms of paragraph 7.3.2.1 above; and
7.3.3.2. the Subscriber shall remain liable to 123NET for any amounts owed to 123NET in terms of the Agreement up to the date of cancellation.
7.3.4. The Subscriber (if a natural person) may at any other time cancel the Agreement by giving 123NET not less than thirty (30) days’ notice in writing provided that 123NET may impose a reasonable cancellation penalty which shall be the sum of the following amounts:
7.3.4.1. all the remaining subscriptions due till the end of the fixed term period; and
7.3.4.2. if applicable, the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement.
7.4. If the Subscriber is a juristic person and unless otherwise expressly provided for in the Agreement:
7.4.1. Upon the expiry of the fixed term period and provided that all amounts due to 123NET up to the date of the expiry of the fixed term period have been paid in full, the Agreement shall continue to operate on a month-to-month basis provided that the monthly fee to be paid by the Subscriber during this period shall be based on the current rate charged by 123NET at the expiry of the fixed term period in respect of the same package which was selected by the Subscriber when first entering into the Agreement.
7.4.2. In the event of the Agreement being terminated prematurely due to a breach on the part of the Subscriber of any of its obligations in terms of the Agreement 123NET shall be entitled to claim damages from the Subscriber (in addition to any other amounts which may be due by the Subscriber in terms of the Agreement) which shall be calculated on the following basis:
7.4.2.1. all the remaining subscriptions due for the remainder of the non-fixed term period; plus
7.4.2.2. if applicable, the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement; plus
7.4.2.3. 123NET’s CPE cost (if applicable); plus
7.4.2.4. the once-off installation and/or activation charges (if applicable).
7.5. Unless otherwise provided for in the Agreement, 123NET shall be entitled to terminate the Agreement at any time by giving three months written notice to the Subscriber provided that such notice shall not contravene any of the applicable provisions of the CPA.
8. DIRECT MARKETING – THE COOLING OFF PERIOD
8.1. If the Agreement resulted from any direct marketing and the provisions of the CPA are applicable, the Subscriber has the right to terminate the Agreement without reason or penalty by giving written notice to 123NET within five business days (“the cooling off period”) after:
8.1.1. the date on which the Agreement was concluded; or
8.1.2. the services or the equipment were delivered to the Subscriber at the premises, whichever event occurs the latest.
8.2. In the event of the Subscriber having given the written notice referred to in paragraph 8.1 above on time:
8.2.1. all the equipment which was delivered to the Subscriber in terms of the Agreement must be dealt with in terms of paragraphs 5.2 and 5.3 above respectively; and
8.2.2. 123NET shall be entitled to deduct from any reimbursement or refund due to the Subscriber in return, a reasonable amount for the use and/or depletion of the equipment, for example the cost of replacing the original packaging of the equipment should the packaging have been opened and/or tampered with.
9. FEES AND PAYMENT
9.1. All fees and/or charges and/or prices which appear on the face of the Agreement include Value Added Tax unless otherwise expressly stated.
9.2. The fees associated with the period/package which the Subscriber has selected on the face of the Agreement shall be paid by the Subscriber:
9.2.1. in the event of the Subscriber having chosen a holiday package the Subscriber shall pay in advance to 123NET:
9.2.1.1. one (1) week period: 50% of the standard monthly fee; or
9.2.1.2. two (2) week period: 75% of the standard monthly fee; or
9.2.1.3. four (4) week period: 100% of the standard monthly fee;
9.2.2. monthly in advance by no later than the 5th day of each month in the event of the Subscriber having chosen a month-to-month package; or
9.2.3. monthly in advance by no later than the 5th day of each month for the duration of the Agreement in the event of the Subscriber having chosen a fixed term period package.
9.3. The Subscriber agrees to pay the installation/construction fee based on the package which the Subscriber has chosen on the face of the Agreement. Such amount shall be paid by the Subscriber upon presentation of an invoice which shall be rendered by 123NET in respect of such installation/construction fee.
9.4. The additional fees which appear on the face of the Agreement shall be paid by the Subscriber upon presentation of an invoice which shall be rendered by 123NET in respect of such additional fees.
9.5. 123NET reserves the right to adjust and/or amend the services and pricing from time to time provided that 123NET gives the Subscriber at least one calendar month’s written notice of such adjustment and/or amendment.
9.6. All payments to be made by the Subscriber in terms of the Agreement shall be made without deduction by way of a debit order (in which event the Subscriber shall be required to fully complete 123NET’s debit order form and submit whatever other documentation which may be required in order to activate the debit order) or by electronic bank transfer (in which event the Subscriber must in making such payment use the correct beneficiary reference indicated on the monthly invoice) or in any other method which 123NET may from time to time require upon the Subscriber having received written notification of such alternative method of payment which 123NET may require.
9.7. Should 123NET not receive payment from the Subscriber of 123NET’s fee (whether on a weekly and/or monthly basis depending on the package selected by the Subscriber on the face of the Agreement) or any other amount due by the Subscriber on time as required in terms of the Agreement, 123NET shall in addition to any other rights which 123NET may have in law and/or in terms of the Agreement to immediately without notice, limit or suspend the Subscriber’s access to the services until such time as the outstanding amount has been paid in full.
9.8. In addition, the Subscriber shall pay 123NET:
9.8.1. all bank charges incurred by 123NET as a result of the Subscriber’s failure to honour any payment/payments made by the Subscriber in terms of the Agreement;
9.8.2. any reconnection fees; and
9.8.3. all legal costs incurred by 123NET on an attorney and client basis in recovering any outstanding amounts from the Subscriber.
10. INSTALLATION AND ACCESS TO THE PREMISES
10.1. Subject to reasonable prior notice and unless otherwise arranged between the parties, the Subscriber hereby agrees to accept the installation of 123NET’s fibre network as well as all the equipment associated therewith as provided for in the Agreement during Business Hours.
10.2. Should the Subscriber not afford 123Net’s employees or agents access to the premises at the time previously arranged between the parties for the installation of the equipment on the premises, 123NET shall be entitled to charge the Subscriber a reasonable call out fee which for the purposes hereof shall be regarded as being an “Additional Fee”.
10.3. The Subscriber acknowledges that the payment of the construction fee for the corresponding services chosen by the Subscriber must be paid in full prior to the installation, where applicable.
10.4. The Subscriber undertakes to ensure that 123NET’s employees or agents are afforded access to the premises throughout the duration of the Agreement subject to reasonable prior notice.
10.5. 123NET undertakes to ensure that its employees or agents are properly supervised and that they comply with all access policies as may be in place at the premises.
10.6. The Subscriber may require positive identification from 123NET’s employees, agents or contractors before having access to the premises.
10.7. The Subscriber warrants that:
10.7.1. where necessary he has obtained all necessary permissions from the owner of the premises and that such owner has consented to the installation of the equipment on the premises; and
10.7.2. 123NET has the right to install, locate and operate the equipment at the premises.
10.8. The Subscriber is required to provide a secure area or space in the premises which will facilitate the installation of the equipment, for example access points that may be installed on walls, the roof and other suitable places and routers, switches and UPS.
11. THE USE OF EQUIPMENT BY THE SUBSCRIBER
11.1. The Subscriber understands and accepts that he is solely responsible, thereby accepting the consequences thereof for:
11.1.1. all his own activities relating to the use of the equipment and/or the installation of 123NET’s fibre network; and
11.1.2. the security and the maintenance of any information stored or transmitted through the equipment and/or the services, which includes passwords and access codes.
11.2. Should the Subscriber send out any content or information which violates any law or regulation using 123NET’s fibre network and/or services; and/or
11.2.1. should the Subscriber resell and/or give access to 123NET’s fibre network and/or services to any other third party outside the premises, any such conduct will amount to an unlawful or illegal activity which is a serious offence and/or a material breach of the Subscriber’s obligations in terms of the Agreement, thereby entitling 123NET to immediately and without notice terminate and/or suspend the provision of services to the Subscriber in terms of the Agreement or to cancel the Agreement.
11.3. The Subscriber shall be responsible for maintaining the equipment installed by 123NET on the premises and must ensure that all such equipment be maintained in good working order.
11.4. The Subscriber may not move, alter or in any way interfere with the installation of the equipment without first notifying 123NET in writing who will then attend to moving and/or altering the installation, as the case may be, should 123NET consider it necessary to do so.
12. INTERNET SPEEDS AND SERVICE INTERRUPTION
12.1. The actual speed of the internet connection may vary based on factors such as hardware and software limitations of the Subscriber’s equipment and other factors which are beyond the control of 123NET. 123NET therefore does not guarantee the speeds of the actual internet services.
12.2. 123NET will endeavour to limit service interruption occurrences and the length thereof. 123NET does not therefore warrant an uninterrupted fibre service connection. In limiting any such service interruptions, 123NET will attempt to ensure that the Subscriber is warned in advance of any routine maintenance that needs to be done on the network. Any unforeseen maintenance or outages will be handled in such a way as to cause minimum disruption to the Subscriber. To the extent permitted by law, 123NET shall not be liable for any service interruption.
12.3. In the event of the Subscriber detecting a service interruption that is not related to the local (home or office) network, the Subscriber can notify 123NET using the official contact and support channels. The Subscriber can follow 123NET’s notification messages using the above mentioned support channels.
13. RISK
13.1. The risk of loss or damage to the equipment provided and/or installed by 123NET on the premises shall pass to the Subscriber upon its delivery to the premises.
13.2. 123NET has no obligation whatsoever to correct, repair or support any equipment or software or hardware that has not been supplied by 123NET in terms of the Agreement and 123NET shall have no responsibility whatsoever for such equipment.
13.3. The Subscriber further acknowledges that all equipment installed in the premises by 123NET does not form part of the immovable property of the Subscriber. In legal terms the equipment shall not accede to the Subscriber’s immovable property.
14. PERSONAL INFORMATION
14.1. Any personal information relating to the Subscriber (for example, email address, physical address, telephone number, location information or any other personal information which falls within the ambit of the Protection of Personal Information Act No. 4 of 2013) which may be disclosed by the Subscriber by virtue of the Agreement shall:
14.1.1. be used and processed by 123NET solely for the purposes of enabling 123NET to perform in terms of the Agreement, to improve and/or extend the services and to enforce its rights in law when necessary in terms of the Agreement; and
14.1.2. be relevant and necessary for the purposes for which it is intended to be used for as set out in the Agreement.
14.2. 123NET shall:
14.2.1. maintain the integrity and confidentiality of such personal information subject to the purposes contemplated in the Agreement; and
14.2.2. retain such personal information until required or prescribed by law whereafter the personal information shall be destroyed.
14.3. The Subscriber consents to and authorises 123NET to:
14.3.1. use and process any such personal information for the purposes contemplated in the Agreement; and
14.3.2. contact and obtain information at any time during the duration of the Agreement from any registered credit bureau or credit provider in order to assess the behaviour, profile, payment patterns and credit worthiness of the Subscriber provided that any such information shall be regarded by 123NET as being personal information.
15. COMPLIANCE
15.1. 123NET is the holder of an electronic communications network service and electronic communications services licences.
15.2. 123NET shall at its own cost and expense be responsible for obtaining and thereafter maintaining whatever regulatory consents and licences that may become necessary to enable it to render the services to the Subscriber in terms of the Agreement.
15.3. Should 123NET not be able to obtain any of the consents and/or licences or should any such consent or licence having been granted, be suspended or revoked by the relevant authority, either party shall be entitled by written notice to the other to terminate the Agreement upon thirty (30) days written notice to remedy the situation.
16. DOCUMENTS
16.1. Any specifications, drawings and other documents which may be furnished by 123NET to the Subscriber from time to time shall remain the property of 123NET and all copyright and/or any other rights which may arise therefrom shall always remain with 123NET. On demand, the Subscriber must immediately return such documents to 123NET.
17. LIMITATION OF LIABILITY
17.1. 123NET accepts no liability for any loss or damage (including, but not limited to costs, penalties, fines, expenses, loss of profits, whether directly and/or indirectly) to the premises or the equipment arising out of the provision, installation or maintenance of the equipment and/or 123NET’s fibre service, unless such loss or damage to the premises or equipment is caused due to the gross negligence of 123NET’s employees or its agents.
17.2. 123NET accepts no liability for any loss or damage to the equipment arising out of the Subscriber’s use of the equipment.
17.3. 123NET accepts no liability for any loss or damage arising out of the use of the equipment and/or 123NET’s fibre service, including any loss or damage due to using the internet and/or transferring files and contents.
18. CHANGE OF OWNERSHIP
18.1. In the event of the sale of the premises or portion thereof, the Subscriber shall notify the purchaser of the premises or any portion thereof of the 123NET infrastructure. The Agreement shall terminate in the event of such purchaser signing a new Agreement with 123NET and in such event the Subscriber shall not be liable for any of 123NET’s early cancellation fees.
19. CONFIDENTIAL INFORMATION
19.1. In addition to the provisions of paragraph 16 above, the Subscriber further acknowledges and agrees that the Agreement together with all schedules, drawings as well as any other documents which may have been exchanged with 123NET prior to the parties entering into the Agreement as well as the duration of the Agreement constitute “confidential information” unless such information is in the public domain.
19.2. Each party must:
19.2.1. protect the confidential information in the manner and with the endeavour of a reasonable person protecting his own confidential information;
19.2.2. use the confidential information only for the purposes of the Agreement and/or the parties carrying out their respective obligations in terms hereof;
19.2.3. not make any announcement whether in a written and/or electronic format using any form of media about the agreement and/or any aspect thereof without the approval of the other party.
19.3. The parties acknowledge and agree that for the purposes of Section 64(1) of the Promotion of Access Information Act No. 2 of 2000, the confidential information is provided in confidence by the parties.
20. INTELLECTUAL PROPERTY RIGHTS
20.1. Any intellectual property rights which 123NET may have in and to the services and/or any of the equipment whether by common law and/or otherwise will always remain with 123NET and the Subscriber agrees not to do anything or allow anything to be done that may infringe 123NET’s rights and the Subscriber hereby indemnifies 123NET against any claims, actions and proceedings that may arise as a result of the Subscriber infringing or violating 123NET's intellectual property rights.
21. BREACH
21.1. Should the duration of the Agreement operate on a fixed term basis and should the Subscriber be a natural person who breaches any of the provisions of the Agreement, 123NET may during the fixed term period, terminate the Agreement on twenty (20) days written notice after the Subscriber receives written notice to remedy the breach and the Subscriber fails to remedy such breach within the time period allowed to do so.
21.2. Subject to the provisions of paragraph 21.1 and unless otherwise expressly provided for in the Agreement, should either party breach any of the terms and conditions of the Agreement, then the aggrieved party shall give the other party (being the defaulting party) written notice to remedy such breach within a period of (7) seven days after receipt of the written notice. Should the defaulting party not comply with the said written notice within the said period of seven days, the aggrieved party shall be entitled to claim immediate payment and/or performance of all of the defaulting parties obligations without prejudice to the aggrieved parties right to claim damages or any rights as the aggrieved party may have whether in terms of the Agreement or at law.
22. CONSENT TO JURISDICTION OF THE MAGISTRATE’S COURT
22.1. The parties hereby consent to the jurisdiction of the Magistrate’s Court in respect of any claim which a party may have against the other arising directly or indirectly from the Agreement, whether or not the amount thereof would otherwise exceed such jurisdiction, provided that 123NET (at its option) may institute legal proceedings in the High Court of South Africa, in which event the parties consent to the jurisdiction of the Durban High Court or any other name/title which may subsequently be given thereto.
23. NOTICES
23.1. Any notice which any party may be required to give to the other party in terms of the Agreement as well as any other documents issue by any court of law and/or by any other authority shall be sent to the addresses which are set out on the face of the Agreement and which addresses are in legal terms known as “the domicilium citandi et executandi address” of each party.
23.2. Each party may be entitled from time to time by written notice to the other party to change its aforesaid address to any other address within the Republic of South Africa which is not a post office box.
23.3. Any notice which is given by either party to the other shall:
23.3.1. if delivered by hand during normal business hours of the addressee at the addressee’s aforesaid address shall be deemed/regarded to have been received by the addressee on the date of delivery;
23.3.2. if given by email shall be deemed to have been received by the addressee on the first working day following the day of the successful transmission thereof.
23.4. However, for the purposes of this paragraph a written notice which is actually received by the addressee shall be regarded as being adequate written notice even though such notice may not have been sent to the addressee’s aforesaid chosen address.
24. FORCE MAJEURE
24.1. A force majeure is an unforeseeable circumstance that may prevent one of the parties from carrying out his obligations in terms of the Agreement. Such unforeseeable circumstance may be in the form of fire, accident, government acts, explosion, industrial dispute, a pandemic or any other act, omission or event beyond the reasonable control of such party.
24.2. In the event of either party not being able to perform in terms of the Agreement by virtue of such force majeure, then such party shall not incur any liability by reason of any such failure to fulfil any of its obligations in terms of the Agreement provided that such party bears the responsibility of proving that such failure was occasioned by a force majeure.
25. AUTHORITY TO SIGN THE AGREEMENT
25.1. If the Subscriber is a juristic person, the person who signs the Agreement on behalf of the Subscriber warrants that he has the authority to enter into the Agreement and to sign the Agreement on behalf of the Subscriber.
26. APPLICABLE LAW
26.1. The Agreement shall at all times be interpreted and governed by the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with the South African law.
27. SEVERABILITY
27.1. Each of the provisions of the Agreement shall be considered as separate terms and conditions and in the event that the Agreement is effected by any law or legislation (or any changes to such law and/or legislation) or if any provisions contained in the Agreement are by virtue of the Law and/or legislation and/or otherwise, held to be illegal, invalid, prohibited or enforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, provision or unenforceability and each of the remaining provisions of the Agreement shall continue to remain in full force and effect as if the illegal, invalid, prohibited or unenforceability was not a part thereof.
28. CESSION
28.1. The Subscriber shall not be entitled to transfer any of his rights (which in legal terms is known as “cede”) or transfer any of his obligations (which in legal terms is known as “assign”) which he may have in terms of the Agreement to any third party unless 123NET has consented thereto in writing, which consent may not be unreasonably withheld.
29. AMENDMENTS
29.1. The Agreement constitutes the entire agreement between the parties.
29.2. However, in order to give effect to improving the services 123NET shall have the right to amend the Agreement and to modify any function or part of the service as it deems necessary provided that 123NET gives written notice to the Subscriber of such changes. Should the Subscriber continue to use the services after having received the written notice it shall be deemed that the Subscriber has accepted the amendment.
30. NON-VARIATION
30.1. Unless otherwise expressly provided for in the Agreement any changes and/or amendments to and/or variation of any terms of the Agreement shall only be binding if it is reduced to writing and signed by a duly authorised representative from both parties.
31. INDULGENCES
31.1. Any delay and/or hesitation on the part of any of the parties in exercising any rights in terms of the Agreement, shall not under any circumstances constitute an abandonment (which in legal terms is known as “a waiver”) of such right on the part of such party and such party shall be entitled to require the other party to strictly comply with the terms of the Agreement.
32. DUPLICATE AND SCANNED VERSION IN PLACE OF ORIGINAL AGREEMENT
32.1. The Subscriber agrees that the Agreement may be scanned and the paper version thereof destroyed and agrees to the scanned version and waives his right to dispute the authenticity of the scanned version.
123Net Website Terms And Conditions Of Use
Definitions
“website owner” and/or “we” and/or “the supplier” and/or “123Net” means 123 NET CPT (Pty) Ltd.
“consumer” means any natural person (including where such a natural person is acting is his/her capacity as a representative of a Company, Close Corporation, Trust or Partnership) 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 123Net website (https://123net.co.za) and its related pages, but does not include any third party websites accessible through this website.
“user” means any person or consumer accessing any part of the website.
Use of this Website
Use of this website constitutes acceptance of these Terms and Conditions of Use which hereafter constitute a binding agreement between 123Net and the user.
Use of this website is done so at the sole risk of the user. The user hereby indemnifies 123Net and its agents against damage of any nature and/or loss in general suffered as a result or arising from use of this website or services offered thereon.
123Net 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
123Net expressly reserves the right, in its sole discretion, to affect any amendment or alteration to the content and information, including pricing and rates, as may be set out in this website.
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: 123 NET CPT (Pty) Ltd
Registration Number: 2015/224882/07
Directors: Milen Raykovski
Phone: 031 828 2321
Fax: 086 585 1270
Email:
[email protected]
Website: https://123net.co.za
Physical Address: Suite 3A, Umhlanga Centre, 185 Ridge Road, Umhlanga
Postal Address: PO BOX 701097, OVERPORT, DURBAN 4067
VAT Number: 4740274198
No offer
Users should regard nothing contained in this website as an offer but rather as an invitation to do business.
Disclaimers
This entire website, including text, images, links, downloads and coding is provided "as is" and "as available". 123Net 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 therein.
Subject to Chapter 7 of the ECT Act, 123Net, 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.
Subject to Chapter 7 of the ECT Act, and to the fullest extent possible under the applicable law, 123Net 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.
123Net 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 the applicable law, 123Net disclaims any liability whatsoever for any loss or damage arising from the use of third party websites, content and/or features.
Indemnity
Notwithstanding the waivers detailed above, users hereby agree to indemnify and hold harmless 123net, its officers, employees, subcontractors, partners, subsidiaries and affiliates from any and all claims and demands, including those for attorney fees and related costs such as tracing fees, made by any third party and arising out of or in connection with your use of this website, third party websites accessed through our website 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
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 .
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).
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.
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.
Where a transaction has been so cancelled then:
The consumer must return the performance of the supplier and/or immediately cease using the services performed; and
The supplier must refund all payments made by the consumer less the direct cost of returning the goods, if any.
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.
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.
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.
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).
Receipt of Data Messages
Data messages, including email messages, sent by users to 123Net 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.
A data message sent by 123Net 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.
123Net 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
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
While 123Net 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.
The following acts in connection with this website are expressly prohibited:
Gaining or attempting to gain unauthorised access to any web page or part of this website;
Delivering or attempting to deliver any unauthorised or malicious code or content to this website; and/or,
Any amendment to or attempt to amend any of the content or any other part of this website by unauthorised persons; and/or,
Any other unlawful interference with the proper operation of this website.
123Net 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
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 123Net.
Unless otherwise indicated, Users wishing to utilise content for their own personal or commercial purposes may only doing so with 123Net’s prior written permission.
Any use of the content or any other part of this website must be clearly accompanied by the following: “©123Net [insert year in which content is copied]. All rights reserved.” or with any such terms as may be provided by 123Net in its written acceptance of a request for use by a user.
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 123Net at [client to provide], specifying the full details of the alleged infringement.
Privacy and Confidentiality of communications
Further information regarding the manner in which the website owner respects the privacy of users’ personal information is contained in the 123Net Website Privacy Policy.
123Net 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 123Net in terms of its Privacy Policy.
Advertising and sponsorship
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.
123Net 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.
Termination of this Agreement
123Net 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:
123Net regards the action or inaction of a user to constitute a breach of these Terms and Conditions of Use;
123Net regards the action or inaction of a user to constitute abuse of the services offered through this website; and/or,
Events beyond 123Net’s reasonable control, including technical failures, prevent the continuing provision of the website.
Governing Law
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.
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
The user consents to the jurisdiction of the Magistrate's Court having jurisdiction in terms of section 28(1)(e)(iv) 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.
Notwithstanding the above, 123Net may, in its sole 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.
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 123Net 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
Please note that, due to legal and other developments, 123Net may be required to amend these Terms and Conditions of Use from time to time. Please refer to the last revision date at the foot of this page.
123Net 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
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.
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.
These Terms and Conditions of Use contain the record of the entire agreement between the user and 123Net as regards the use of this website.
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.
Network Management Guide For 123NET Fibre Internet Services
123NET fibre is committed to providing an excellent user experience that supports any lawful product, service, or application that its subscribers choose to access through their 123NET fibre Internet service.
To do so, 123NET fibre engages in reasonable network management practices. Descriptions of these practices are provided below for informational purposes only and may be subject to change at any time.
Use of 123NET fibre’s Internet services is governed by various service terms and conditions that are available here (https://123net.co.za/en/front/legal). The information provided below does not change the rights or obligations under those terms and conditions of either 123NET fibre or the subscribers to 123NET fibre’s services.
Congestion Management
In the unlikely event that users' aggregate demand exceeds the available capacity of the network and creates acute congestion, 123NET fibre will employ various techniques to ensure that subscribers continue to have a positive experience. In times of acute congestion, 123NET fibre Internet service bandwidth will be fairly allocated among subscribers without regard to the subscribers’ online activities or the protocols or applications that the subscribers are using. While acute congestion is occurring, subscribers will still be able to use the lawful content, services, and applications of their choice, but this fair sharing of bandwidth may result in slower download and upload speeds and slower response times from websites and Internet-based applications and services. 123NET fibre will not engage in deep packet inspection (where the content of the data packet is inspected beyond its IP, TCP, and UDP headers) or drop specific types of end-user Internet traffic except as described herein to preserve the integrity of the network and protect against negative effects of Internet threats.
123NET fibre does not prevent or impede the use of any other product or service that its subscribers choose to access over their 123NET fibre Internet service as long as the use of that product or service does not violate the service terms and conditions. 123NET fibre also does not favor or inhibit any applications or classes of applications except as described herein.
Service Offering Characteristics
123NET fibre offers a selection of Internet access service offerings to meet subscribers’ budgetary and usage needs. Details about 123NET’s service offerings are available here (https://123net.co.za).
The advertised speed of the subscriber’s chosen 123NET fibre Internet offering is the maximum speed expected to be achievable for that service offering. Several factors may affect the actual speed of 123NET fibre’s service offerings at any particular point in time. These factors include, but are not limited to: the capability of the subscriber's device used to access 123NET fibre; the capability of the business network between the subscriber's device and 123NET fibre; the capability of websites or other Internet services accessed by the subscriber; the connectivity and capacity of Content Delivery Networks (CDNs); the subscriber’s use of 123NET fibre TV service (if applicable); and network congestion/other Internet traffic.
Detailed summaries of 123NET fibre’s Internet service performance, including information about speed and latency and optimizing your wireless network, can be found in the Support Centre. 123NET fibre also provides a speed test page for subscribers to test their connections themselves.
123NET fibre’s Internet services are priced on a flat-fee basis (plus taxes). 123NET fibre does not charge subscribers a usage-based fee for Internet access service and does not employ volume-based data caps. More information about the pricing of 123NET fibre’s service offerings and other fees is available in the Subscriber Agreement.
Bandwidth is provided on a per-subscriber basis. The subscriber's bandwidth is shared by all connected devices within the subscriber's premises.
Network Security
123NET fibre engages in network management practices intended to address threats to its network and subscribers. 123NET fibre reserves the right at any time to take action necessary to protect the integrity of its network and other parts of the Internet. This may include terminating or suspending service to subscribers who engage in activity that violates the 123NET fibre Terms and Conditions, including but not limited to activity that threatens to undermine the integrity of 123NET fibre’s network or services.
123NET fibre uses industry standard tools and generally accepted best practices and policies to prevent subscribers and other Internet users from experiencing the negative effects of Internet threats such as viruses, spam, denial of service attacks, and other unwanted or harmful online content and activities.
Please notify 123NET fibre of any perceived network security or other Internet threats.
Attachment Of Devices
123NET fibre’s subscribers may attach any device of their choice to the 123NET fibre Internet service that is compatible with the 123NET fibre network (i.e., supports IPv4 and/or IPv6 via Ethernet or Wi-Fi technologies), does not violate the 123NET fibre Terms and Conditions, and does not cause harm to the network, other users, or the provision of Internet access service. The performance a user experiences may vary depending on the capability and configuration of devices being used on the service.
Special Information Regarding Wi-Fi Routers
123NET fibre may provide each of its subscribers a Network Box, which excludes built-in Wi-Fi and includes a gigabit ethernet port. 123NET fibre highly recommends the use of encryption with your Wi-Fi router device. Encryption will help prevent unauthorized users from accessing a subscriber's business network.
123NET fibre subscribers are responsible for activity that occurs over their connections, including unlawful use by third parties. While Wi-Fi encryption does not encrypt traffic that a subscriber sends over the Internet, it does provide encryption for the Wi-Fi portion of the communications path between the subscriber’s wireless device and the subscriber’s Wi-Fi-enabled router and/or TV Box. In the Support Centre, 123NET fibre provides step-by-step instructions for activating the encryption setting.
For information on accessing and configuring features in 123NET fibre Wi-Fi enabled device(s), please visit the Support Centre.
Information About 123NET Fibre TV Services
123NET fibre’s Internet and TV service offerings share capacity on the fiber-optic connections to subscribers’ premises. To provide customers with a consistently high-quality video service, the capacity available for the 123NET fibre Internet service may be reduced if subscribers are utilizing 123NET fibre TV services and, in particular, if subscribers are watching or recording multiple 123NET fibre TV streams simultaneously.
Contact Information
123NET fibre’s contact page provides ways for subscribers to reach us by phone, email (preferably) or chat.
THE PROMOTION OF ACCESS TO INFORMATION ACT (PAIA)
Should you wish to request information or documentation from 123 NET CPT (Pty) Ltd (“123Net”), there are certain procedures which, by law, both 123Net and you will need to follow.
To make this process easier for you we have created a manual that you may download from this site. The manual may be amended from time to time and as soon as any amendments have been made the latest version of the manual will be made available on this site.
If you need any help in using the manual, please call the appointed person who will be happy to assist you.
Contact Details (Section 51(1)(a) of PAIA)
The Appointed Information Officer: Milen Raykovski
Physical Address: Suite 3A, Umhlanga Centre, 185 Ridge Rd, Umhlanga
Postal Address: PO BOX 701097, OVERPORT, DURBAN 4067
Telephone: 031 828 2321
Fax: 086 585 1270
Email:
[email protected]
Download 123Net’s PAIA Manual
Click here to download 123Net’s PAIA manual.
123Net Code of Conduct, Complaints and Billing Disputes Procedure
CODE OF CONDUCT
Introduction
In order to provide electronic communications services to its subscribers, 123 NET CPT (Pty) Ltd t/a 123Net (“123Net”) holds Electronic Communications Service and Electronic Communications Network Service licences issued by the Independent Communications Authority of South Africa (ICASA).
ICASA requires that all licence-holders comply with, inter alia, the:
ICASA Code of Conduct Regulations 2008, which sets out minimum standards of conduct when providing services to subscribers or dealing with potential subscribers; and
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.
123Net 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.
The ICASA Code of Conduct Regulations 2008 are available here.
The ICASA End-user and Subscriber Service Charter Regulations are available here.
Definitions
“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 08h00–17h00 on Business Days.
“Customer” means a subscriber or potential subscriber of 123Net.
Key Commitments
123Net makes the following key commitments and will endeavour to:
Act in a fair, reasonable and responsible manner in all dealings with Customers;
Ensure that all its services and products meet the specifications as contained in 123Net’s licences and all the relevant laws and regulations;
Not unfairly discriminate against or between Customers on the basis of race, gender, sex, age, religion, belief, disability, ethnic background or sexual orientation;
Display utmost courtesy and care when dealing with Customers;
Provide Customers with information regarding services and pricing;
Where requested to do, so provide Customers with guidance with regard to their service needs; and,
Keep the personal information of Customers confidential unless 123Net is:
In possession of written authorisation from the Customer to do so;
Required to release such information for the purpose of briefing 123Net’s auditors, lawyers, professional advisors or an accredited debt collection agency; and/or
Otherwise authorised or required by any law or an order of Court;
Customers have the right to refer Complaints to ICASA as more fully set out in the Complaints Procedure.
Consumer Rights
The ICASA Code of Conduct Regulations 2008 stipulate the following (non-exhaustive) list of consumer rights held by Consumers:
A right to be provided with the required service without unfair discrimination;
A right to choose the service provider of the Customer’s choice;
A right to receive information in the Customer’s preferred language (123Net will do its best to meet this request where reasonable);
A right to access and question records held by 123Net which relate to the Customer’s relationship with 123Net;
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 express permission;
A right to port a number in terms of applicable regulations;
A right to lodge a complaint; and,
A right to redress.
Availability of Information
The following information can be obtained from the 123Net’s website https://123net.co.za or by email request to
[email protected] (with no charge payable), and is available for inspection at 123Net’s offices during Business Hours:
123Net’s range of services/products on offer;
Tariff rates applicable to each service offered;
Terms and conditions applicable to such services/products;
Payment terms;
Billing, billing processes and the Billing Disputes Procedure;
General Complaints Procedure, and
Relevant contact details.
Billing
123Net 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.
Billing terms are also set out on 123Net’s invoices.
Defective Items
Where a product is provided to the Customer and is found to be defective, 123Net will investigate the issue and will replace it in accordance with the manufacturer’s warranty for that product.
Application/Credit Vetting
Where applicable, 123Net 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 explicitly consents to the use of all information supplied by the Customer for this purpose and for the purpose of compliance with the National Credit Act 34 of 2005, as amended.
Terms and Conditions of Service
123Net 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.
These written terms and conditions will contain clear provisions relating to the nature of the contract, the minimum duration of the contract, the manner and notice period for termination and any payments which may be applicable for early termination.
Where 123Net affects changes to the terms and conditions of its service, 123Net will inform the Customer of such changes within a fair and reasonable period.
Minimum Service Standards
123Net will, subject to events and conduct beyond its reasonable control:
provide a minimum of 95% network service availability measured over six (6) months;
provide a minimum of 95% service availability measured over six (6) months;
attain a 90% success rate in meeting requests for installation and activation of service for qualifying service applicants within thirty (30) Business Days of request, while meeting the balance of requests within forty (40) Business Days of request;
provide full reasons to the Customer where 123Net is not able to meet a request for service within these time periods within seven (7) Business Days of receipt of request for same;
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 of request, provided that the applicant is within 123Net’s specified coverage area;
provide full reasons to the Customer where 123Net is not able to meet a request for activation within these time periods within seven (7) Business Days of receipt of request for same;
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;
respond within three (3) minutes (averaged over twelve months) to any call directed to the 123Net call centre;
monitor its network 24 hours a day, 7 days a week, 364/5 days a year.
Customers acknowledge that 123Net 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 123Net 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.
COMPLAINTS PROCEDURES
Definitions
“Billing Dispute” means an instance where a Customer states in good faith that their bill contains incorrect charges, payments or adjustments. Billing Disputes are a specific form of Complaint dealt with only in terms of the Billing Disputes Procedure set out herein.
“Billing Dispute Notice” means a formal, written notice submitted to 123Net by the Customer in terms of this Procedure.
“Billing Disputes Procedure” mean the Billing Disputes Procedure set out herein for the initiation and resolution of Billing Disputes.
“Billing Enquiry” means the situation where the Customer seeks information or clarification relating to an invoice issued by 123Net. including without limitation seeking clarification of charges or sources of usage. For the avoidance of doubt, a Billing Enquiry 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 a formal, written expression of dissatisfaction or grievance made by a Customer in terms of the General Complaints Procedure, but does not include a request for information or a Billing Dispute. Complaints are dealt with only in terms of the General Complaints Procedure set out herein.
“Customer” means a 123Net subscriber or potential subscriber.
General Complaints Procedure
This Procedure applies to all Complaints other than Billing Disputes, which are dealt with in terms of the Billing Dispute Procedure set out below.
The Customer is required to direct a formal Complaint to
[email protected].
The Complaint is required to be accompanied by the following:
The Customer’s full particulars and contact details;
The Customer’s relationship with 123Net, together with any customer reference numbers or details which may be applicable;
A statement of the reasons for the Complaint, with enough detail to allow 123Net to assess these; and
Any relevant evidence or documentation the Customer wishes to submit in support of the Complaint.
Following the ICASA Code of Conduct Regulations, 123Net will:
Acknowledge receipt of the Complaint within three (3) Business Days of the Complaint and allocate a reference number; and
Determine an outcome for the Complaint and communicate this to the Customer in writing within fourteen (14) Business Days of receipt of the Complaint.
Billing Disputes Procedure
General
Billing Enquiries should be directed to
[email protected], and Complaints not related to Billing Disputes are dealt with under the General Complaints Procedure set out above.
The Customer expressly acknowledges and agreed that:
Any charge recorded on an invoice which is not submitted in accordance with this Billing Disputes Procedure is payable in full to 123Net by the due date of that invoice;
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”);
The Billing Disputes Procedure is only triggered when 123Net receives a Billing Dispute, and it is only after this that the Customer may withhold payments of the Disputed Amount only as set out in clause 17; and
Billing Enquiries, Complaints and requests for information are not considered to be Billing Disputes and do not trigger this Billing Disputes Procedure. Billing Enquiries should be directed to
[email protected], Complaints are dealt with under the General Complaints Procedure set out above, and requests for information can be sent to
[email protected].
Please note that 123Net will not entertain any Billing Dispute based on unauthorised use of the services or on unauthorised use of the services by a third party, as it is the Customer’s responsibility to safeguard access to the services received by the Customer and to use such services in the manner set out in the terms and conditions applicable thereto.
Customer Acknowledgements
The Customer expressly agrees to allow 123Net to attempt settlement of any Billing Dispute within fourteen (14) Business Days before raising a dispute with any third party, credit card company or bank. 123Net requires and Customer expressly agrees that 123Net will be the first option in Billing Disputes. Should 123Net receive a chargeback or other reversed charge from a third party, credit card company or bank on behalf of the Customer before 123Net has been given a chance to resolve the Billing Dispute, then 123Net has the right to collect on the rendered services and any fees associated with those charges.
Not all Billing Disputes may be settled to the Customer's satisfaction. Once this Billing Disputes Procedure has been exhausted, a Customer may use any third party, credit card company or bank in an attempt to settle the dispute. However, 123Net still retains the right to collect on any rendered services or fees that are due. Should 123Net be unable to reverse any disputed amounts with a third party, credit card company or bank, 123Net will submit the full delinquent amount for collection.
Withholding the Disputed Amount
The Customer may only withhold payment of a Disputed Amount where 123Net 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.
Initiating Billing Disputes
A Billing Dispute Notice may be lodged in the manner set out herein until the passing of thirty (30) calendar days from the date of the relevant invoice.
The Customer is required to direct a formal Billing Dispute Notice to
[email protected].
The Billing Dispute Notice is required to be accompanied by the following:
The Customer’s full particulars and contact details;
The Customer’s relationship with 123Net, together with any customer reference numbers or details which may be applicable;
Invoice number and date;
The amount in dispute (“the Disputed Amount”);
The amount not in dispute (“the Undisputed Amount”);
A statement of the reasons for the Billing Dispute, with enough detail to allow 123Net to assess these; and
Any relevant evidence or documentation the Customer wishes to submit in support of the Billing Dispute.
Response to Billing Dispute Notice
In terms of the ICASA Code of Conduct Regulations, 123Net will acknowledge receipt of the Billing Dispute Notice within three (3) Business Days and allocate a reference number.
123Net shall provide a formal response with its determination to the Billing Dispute Notice within fourteen (14) Business Days following receipt of the Billing Dispute Notice.
123Net may request additional information or documentation from the Customer lodging the Billing Dispute Notice, which information or documentation is reasonably required to assist 123Net 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 the requested information or documentation has been received by123Net.
123Net’s will assess the Billing Dispute, and send to the Customer its response (and reasons for such determination), which shall take one of the following forms:
A confirmation that the Billing Dispute is valid, and a statement indicating such adjustments as may be necessary;
A rejection of the Billing Dispute Notice on the basis that:
The Billing Dispute Notice was not received by 123Net within thirty (30) calendar days of the date of the relevant invoice, as required in clause 17;
The Billing Dispute Notice does not contain all of the information required, as set out in clause 20, or was not submitted in the required manner, as set out in clause 19;
The Customer has not made payment of any Undisputed Amounts, and does not have the right to withhold payment of any Disputed Amounts in accordance with clause 17.
123Net has confirmation from the Customer that the Billing Dispute which is the subject of the Billing Dispute Notice has been resolved;
The Customer is disputing any charges on the basis of unauthorised use of the services or on unauthorised use of the services by a third party; or
123Net reasonably believes that the Customer does not have a bona fide dispute in relation to Billing Dispute submitted.
Any alternate resolution that 123Net deems appropriate.
Response Implications
If stipulated in 123Net’s response in terms of clause 24 that the Customer must make payment of the Disputed Amount or a portion thereof, the Customer must pay the Disputed Amount or such indicated portion within five (5) Business Days of the date of the 123Net’s response.
If stipulated in 123Net’s response in terms of clause 24 that 123Net must withdraw the Disputed Amount or refund a fee already paid, 123Net must as soon as practicable:
Provide the Customer with a statement reflecting the adjustment to their account. It is intended that this adjustment will be contained on the next invoice issued to the Customer, but the parties acknowledge that this may be delayed due to timing issues with the response and123Net’s standard billing terms; or
Credit any Disputed Amount already paid by the Customer.
Continued Service Provision
123Net will not disconnect a service provided to the Customer which is the subject of a Billing Dispute Notice, or take adverse collection procedures or impose late payment penalties or charges, while attempting to resolve a Billing Dispute lodged in terms of the Billing Disputes Procedure and until such time as 123Net has reached a determination and communicated this to the Customer, provided that Undisputed Amounts are paid timeously.
123Net reserves the right, however, to take such measures mentioned in clause 27 immediately:
Where a determination of the Billing Dispute has been made and communicated to the Customer; or
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.
Subject only to the above, the rights and obligations of each party under the Billing Disputes Procedure continue pending resolution of a Billing Dispute invoked under this Billing Disputes Procedure. For the avoidance of doubt, this includes that 123Net shall continue to have the right to terminate or suspend the service in accordance with 123Net’s rights under the agreement that the Customer has with 123Net.
Confidentiality
Neither party shall use any information obtained from the other party during the course of any process invoked under the Billing Disputes Procedure for any purpose other than the resolution of the particular Billing Dispute.
Referral of Complaints to ICASA
If the Customer is not happy about the outcome of a Complaint or a Billing Dispute, 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.
Please note that in terms of the ICASA Code of Conduct Regulations 2008, the Customer must give 123Net an opportunity to resolve the matter within the period specified in this Complaints Procedure before the Customer may escalate the Complaint or Billing Dispute to ICASA.
ICASA can be contacted in the following ways:
telephone: 011 566 3000;
fax: 011 444 1919; and/or
email:
[email protected] 123Net Website Privacy Policy
1. 123 NET CPT (Pty) Ltd (“123Net”) will always seek to protect the confidentiality of its subscribers' information, and will only use its subscribers' information for the purpose/s permitted or required by law.
2. 123Net will only release subscriber information to a third party under the following circumstances:
2.1. when directed to do so on the written instruction of the subscriber or a prospective subscriber;
2.2. when directed to do so in terms of an order of Court;
2.3. when directed to do so by the Independent Communications Authority of South Africa for the purpose of compiling, verifying or auditing any reports, accounts or other information required under 123Net 's service licences or in terms of the Electronic Communications Act, 2005 and the regulations made pursuant to that Act;
2.4. where it is necessary to properly deal with and comply with any legislative enactment or regulation in respect of any complaint lodged in terms of 123Net’s complaints handling procedure;
2.5. during the process of debt collection;
2.6. to 123Net’s attorneys in connection with any potential, threatened or actual litigation; and,
2.7. to 123Net’s auditors for the purpose of auditing their accounts.
In addition to the above, please note that:
3.1. Whilst you can browse the web without revealing any of your personal information, we automatically collect specific, non-identifying information such as the IP address from which our services or websites are accessed, the IP address of any websites you may visit and any such other information as may be required for us to perform trend and statistical analysis of our service provision, the efficacy of this website and our quality of service.
3.2. Some of our web pages utilise cookies so that we can provide you with more tailored information when you return to our site. Cookies are used to enhance your interactive experience and generally improve the service which we offer you. You can set your browser to notify you when you receive a cookie and decide whether or not to accept it.
3.3. We may from time to time disclose aggregate information to third parties to identify the user population in general terms, e.g. 52% males visit a particular site. Your identity and/or personal information will under no circumstances be disclosed.
3.4. We are not responsible for the privacy practices of or the content on sites linking out of the 123Net network or accessed through our service. You hereby expressly agree to exclude and indemnify 123Net against any liability arising from your access to sites other than those on the 123Net network.
