South Africa Terms and Conditions
South Africa Terms and Conditions
AVOXI SA (PTY) LTD
CUSTOMER SERVICES AGREEMENT
General Terms and Conditions of Service
1.1. “AVOXI” – AVOXI SA (Pty) Ltd registration number Company Reg. No. 2005/013915/07
1.2. “AVOXI” – AVOXI
1.3. AVOXI – Is a an umbrella brand for AVOXI’s voice products
1.4. “Services” – the Voice and Data Services which are selected and agreed upon on the face hereof and on the attached Product Addendum/s and any ancillary services related thereto.
1.5. “Subscriber” – the Company, Close Corporation, Firm, Partnership or Persons contracting to receive the Services from AVOXI in terms of this Agreement.
1.6. “Agreement” – these terms and conditions as read together with the schedule on the face hereof and the applicable attached Product Addendum/s
1.7. “Connection Date” – the date on which AVOXI accepts the contract commences.
1.8. “Duration of the Contract” – the number of months the Service specified upon on the face hereof and or the applicable attached Product Addendum/s is contracted for.
1.9. ”Network Operator” – refers to VoxTelecom, Telkom and or all other data and voice carriers that AVOXI interconnects with.
1.10. “Product Addendum/s’ – each service offered by AVOXI has its own standard terms and conditions stipulating contract duration and package information. The Subscriber Agreement is not deemed complete without the relevant product addendum/s attached and signed by the subscriber. The Subscriber Agreement and the relevant product addendum/s are deemed as one legally binding
2. APPOINTMENT AND TERM.
2.1. With effect from the date of acceptance hereof by AVOXI the subscriber identified on the face hereof and on the Product Addendum/s or any other document as agreed in writing between the parties appoints AVOXI to provide to and/or on behalf of the subscriber in accordance with the provisions hereof.
2.2. This agreement will go into effect from the date of installation and, or activation of services, signed and ordered from AVOXI SA ( PTY) Ltd. The subscriber agrees to be bound by the provisions contained in the notice, directive, or applicable tariff plan issued or derived by AVOXI and/or the service provider from time to time.
2.3. The subscriber acknowledges that this document or such other document as agreed in writing between the parties constitutes an offer by the subscriber, which may be accepted or refused by AVOXI in its sole discretion. The offer will be considered once received by AVOXI at AVOXI’s premises. Connection of the subscriber shall be deemed to constitute acceptance of the offer, by AVOXI and commencement of this agreement. This agreement shall become binding between AVOXI and the subscriber whether or not the subscriber was notified of the acceptance of the offer.
2.4. This Agreement shall continue for successive periods of 2 (two) years after the Initial Term at the then prevailing monthly subscription fee of AVOXI, unless either party serves written notice of termination on the other not less than 3 (three) months prior to the end of the Initial Term or such successive 2 (two) year period..
2.5. Termination of the agreement does not relieve the subscriber from the liability to pay charges for all calls and data usage used by the subscriber up until the service is disconnected by AVOXI.
3.1. Either party may terminate the Service. Notice period for termination of service with AVOXI: One Calendar month written notice.
3.2. Termination of the agreement does not relieve the subscriber from the liability to pay charges for all calls and data usage used by the subscriber up until the service is disconnected by AVOXI.
3.3. AVOXI shall be entitled in its sole discretion to suspend, cancel, vary or terminate this agreement or any part thereof, without AVOXI incurring any liability whatsoever in the event of non availability of the service or if any agreement giving AVOXI access to anything relating to the service, is suspended, cancelled, varied or terminated
4. THE AVOXI SERVICES.
4.1. The services are to include the routing of voice traffic over the AVOXI network.
4.2. Voice constitutes all local, national, international and mobile voice or data calls routed through the AVOXI communications network.
4.3. The subscriber shall allow AVOXI access to the subscriber’s premises, with prior notification to the subscriber, at all reasonable times in order to install, maintain, monitor, inspect, replace or remove the services.
4.4. AVOXI endeavors that the services rendered will be provided and maintained during the contract period.
4.5. Because of the need to conduct repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time without notice by AVOXI, and AVOXI, is exempted from all liability for any loss or damage (whether direct or consequential) and/or for any costs, claims or demands of any nature to the Subscriber and/or any third party arising from such suspension.
4.6. The subscriber shall have no claim of whatsoever nature and howsoever rising against AVOXI including no right to cancel this agreement or to withhold payment of any monies due in terms hereof should the network temporarily or otherwise fail, malfunction, provide no or poor coverage or should any of the services or facilities provided by the network operator or AVOXI be temporarily unavailable.
4.7. The subscriber shall not be entitled to set off or deduct any monies in respect of ‘dropped’ or discontinued calls and/or connections or temporarily unavailable services including facsimile and other services. AVOXI does not make any representations nor, give any warranty or guarantee of any nature whatsoever in respect of the Service.
4.8. AVOXI does not warrant or guarantee that the information transmitted by the use of the Service will be preserved or sustained in its entirety, will be suitable for any intended purpose, will be free of inaccuracies or defects or bugs or viruses of any kind, and will not contravene the laws of a particular country.
4.9. AVOXI shall be entitled in its sole discretion to alter the telephone number or any other code or number, which has been allocated to the subscriber for the subscriber equipment.
4.10. AVOXI shall be entitled in its sole discretion to suspend, cancel, vary or terminate this agreement or any part thereof, without AVOXI incurring any liability whatsoever in the event of non availability of the service or if any agreement giving AVOXI access to anything relating to the service, is suspended, cancelled, varied or terminated.
4.11. AVOXI at its discretion will credit vet prospective customers.
4.12. The subscriber agrees that if for any reason any of the agreements between the network operators and AVOXI are terminated so as to have the effect of AVOXI not being entitled to render the services, all of the rights and obligations of AVOXI in terms of this agreement may be assigned to any third party service provider as may be approved of in writing by the relevant network operator, which approval will not be unreasonably withheld or delayed forthwith upon the termination for whatever reason.
4.13. Any migration from one package to another will be subject to the discretion of AVOXI and any migration charges where applicable will be as per the applicable AVOXI tariff plan.
5.1. The subscriber shall pay to AVOXI:
5.1.1. Upon commencement hereof, the initial connection charge and all other introductory or
5.1.2. Commencement charges stipulated on the attached product addemdum/sÍ¾ and
5.1.3. Monthly in arrears or as and when billing is passed on by the network operator, the total call charges used and/or generated by the subscriber during each billing period and any other charges payable in respect of the services requested by the subscriber or other charges levied by AVOXI from time to time: and
5.1.4. Value added tax at the applicable rate on all VATable charges and services. All charges, unless otherwise stated, exclude value added tax.
5.1.5. All equipment, phones, gateways, router and licenses etc. are payable in full on order, before delivery will take place.
5.2. The charges payable by the subscriber to AVOXI for the provision or facilitation of the services shall be stipulated in any notice, directive, promotion or applicable tariff plan issued or derived by AVOXI from time to time and the contents of such notice, directive promotion or tariff plan including the charges stipulated therein shall be deemed to be incorporated in this agreement as if specifically set out herein.
5.3. The subscriber agrees that AVOXI shall be entitled from time to time to increase or vary the charges payable (as dictated by the networks or by extreme currency fluctuations) by the subscriber to AVOXI for the services. AVOXI shall endeavor to give the subscriber prior notice of any such increase or variation but gives no undertaking in this regard.
5.4. AVOXI’s Tax Invoice/Statement of charges shall be prima facie proof of the amounts owed by the subscriber to AVOXI in terms hereof and of the other facts stated therein and should the subscriber dispute the number, duration or amount charged in respect of any call made or services rendered by AVOXI, then the subscriber shall bear the onus of proving that AVOXI’s statement is incorrect in such respect.
5.5. If the subscriber wishes to dispute any invoice or part of an invoice falling due in accordance with Clause 5.4, the subscriber shall, before the invoice is due, obtain a dispute form from AVOXI’s billing department, complete and deliver the notice in writing to AVOXI setting out the nature of its dispute, including: (i) date and numbers of the disputed invoice (ii) amount in dispute (iii) reason for dispute; and (iv) supporting documents or Call Detail Record (CDR’s), as appropriate and clearly marked. Any undisputed part of a disputed invoice shall be paid by the subscriber before the due date. (Clause 5.4)
5.6. The Parties shall use reasonable endeavours to resolve such payment disputes as soon as is reasonable practicable.
5.7. Tax Invoice/Statements for monthly billing subscriber are sent via email in the beginning of each month and weekly billing subscriber will receive the Tax Invoice/Statement every Monday.
5.8. AVOXI will charge a reconnection fee if services was suspended for none payment and the account will be reviewed before reconnection, that can lead to a request for AVOXI for a security deposit or an additional deposit payment, that will be used to secure the “last payment” on the account, after cancellation or termination of services. The balance of the deposit the subscriber paid to AVOXI, will only be refunded after all payable charges are deducted.
5.9. AVOXI SA (PTY) Ltd will require a request in writing, with banking details and contact numbers for an additional name in the finance department, who can confirm banking details for all deposit refund, from the customer accompanied by a cancelled cheque or a bank letter confirming the Customers banking details. AVOXI SA (PTY) Ltd has strict protocol in place, regarding our refunds to customers, to avoid payments into wrong bank accounts.
6.1. Should the subscriber send any monies, cheques by means of the postal services, then the postal authority shall be deemed to be the agent of the subscriber and the subscriber shall bear all risk of loss, theft and delay in an to any such monies, cheques sent by post and without derogating from what is stated herein, the subscriber shall draw all cheques payable to AVOXI SA (Pty) Limited and marked "not transferable".
6.2. The subscriber agrees that payment shall only have been made to AVOXI when the monies remitted by the subscriber have been received into AVOXI’s bank account.
6.3. Should payment be returned unpaid or stopped or should any charge card account or credit card account of the subscriber be rejected for whatsoever reason or should AVOXI exercise its right to suspend the provision of the services due to late or nonpayment of any monies due in terms hereof by the subscriber, then the subscriber shall pay an administration charge as may be levied by AVOXI from time to time for each such nonpayment, suspension or any other breach of this agreement which amount shall be liable upon demand and recoverable by AVOXI.
6.4. Payment shall be made by the subscriber, within the agreed terms, which is within seven days from the invoice date, or unless otherwise agreed in writing.
6.5 Non receipt of invoices by the subscriber will not be considered as a valid basis for late or nonpayment. Please refer to Clause 4.8 for account disputes
6.6 All rates and charges are billed in RAND.
6.7 Interest shall accrue on any overdue invoice from the due date until payment (whether before or after judgment) at twenty (20) percent per annum.
6.8 The subscriber / customer will be fully responsible for all collection commission and legal fees and interest payable.
7. EQUIPMENT – Leased and Loaned
7.1. At all times remain the property of AVOXI
7.2. The Customer acknowledges that the equipment was received in working order.
7.3. Customer agrees to return any and all equipment in working order within 7 days after termination of the rental or service agreement.
7.4. If the equipment is not returned within the stated period, customer agrees to pay AVOXI the full fair market value of the equipment.
7.5. Customer shall be liable to AVOXI for the cost of repair or replacement of equipment that is lost, stolen or damaged as a result of Customer’s negligence.
8. LIMITATION OF LIABILITY.
8.1. The Subscriber hereby indemnifies AVOXI and holds AVOXI harmless against any claim by any third party arising directly or indirectly out of the Subscriber’s access to or use of the Service or information obtained through the use of it, including without limitation of any claim due to the use of the Services for unlawful purposes.
8.2. AVOXI shall not be liable for any loss or damages arising out of mistakes, omissions, interruptions, delays, errors or defects in the service, the transmission of the service, or failures or defects in facilities furnished by AVOXI, occurring in the course of furnishing service shall in no event exceed an amount equivalent to the proportionate fixed monthly charge to AVOXI for service, during the period of time in which such mistakes, omissions, interruptions, delays, errors or defects in the service, its transmission or failure or defect in facilities furnished by AVOXI occurred, unless the Commission orders otherwise.
8.3. The Subscriber must pay AVOXI for the replacement or repair of damage to AVOXI’s equipment or facilities cause by the negligence or willful act of the customer or usersÍ¾ improper use of serviceÍ¾ or any use of equipment or service provided by others.
8.4. The Subscriber must insure AVOXI’s equipment or facilities installed at the subscriber’s premises for the theft or mishandling of equipment, or the subscriber shall be liable for the replacement equipment.
8.5. The equipment installed at the Subscribers premises remains the property of AVOXI’s unless the subscriber has purchased the equipment.
8.6. The Subscriber is liable for all calls made, once the solution has been installed and activated.
9. BREACH. If the Subscriber:
9.1. Fails to pay any amount under this Agreement on due date, then AVOXI shall be entitled without prejudice to any of its other rights arising out of this agreement forthwith and without any liability towards the subscriber to suspend its provision to the subscriber of the services in whole or in part and/or disconnect the subscriber from the network and/or to render the equipment inoperable by whatever means.
9.2. Commits, suffers or permits a breach of any term of this AgreementÍ¾ or
9.3. Termination of the contract by the Subscriber before the specified date of termination for breach of contract will result in the Subscriber being liable for the full payment of the remaining subscription fee for the applicable term signed upon in the terms of this Agreement and the terms stipulated and signed upon in the Product Addendum/s.
10. DOMICILIUM AND NOTICES.
10.1. The Subscriber and AVOXI hereby choose domicilium citandi et executandi for all purposes of and in connection with this Agreement at the physical address and telefax as set forth on the face hereof. AVOXI shall be entitled to give any notice in terms of this Agreement by telefax.
11.1. This Agreement in conjunction with the signed Product Addendum/s constitutes the sole record of the Agreement between the parties in regard to the subject matter thereof. Neither party shall be bound by any representation, express or implied term, promise or the like not recorded herein and in the Product Addendum/s or reduced to writing and signed by the parties or their representatives. No addition or variation of this Agreement and the attached Product Addendum/s shall be of any force or effect unless in writing and signed by or on behalf of the parties. No indulgence that AVOXI may grant to the Subscriber shall constitute a waiver of any of AVOXI’s rights. In this agreement the singular shall include the plural.
11.2. This Agreement and the signed Product Addendum/s shall in all respects be governed by and construed in accordance with the law of the Republic of South Africa, and all disputes, actions and other matters in connection with this Agreement and the signed Product Addendum/s shall be determined in accordance with such laws.
11.3. Should any provision of this Agreement and the signed Product Addendum/s be rendered unlawful then that unlawful provision only shall be invalid, without effecting or invalidating any of the remaining provisions of this Agreement and the signed Product Addendum/s, which shall continue to be of full force effect.
11.4. AVOXI is entitled to cede its rights and / or to delegate its obligations arising from this agreement and/or assign this agreement, wholly or partly, to any third party. The subscriber shall not be entitled to cede or delegate his rights and/or obligations arising out of this contract, unless accepted in writing by the credit control manager or a director of AVOXI.
11.5. The Subscriber warrants the accuracy of all information furnished by or on behalf of the Subscriber in terms of or pursuant to this Agreement and the signed Product Addendum/s. The Subscriber shall forthwith notify AVOXI in writing of any changes from time to time in the information set out in the schedule on the face hereof and on the signed Product Addendum/s.
11.6. The parties hereby consent to the jurisdiction of any Magistrates Court which may exercise jurisdiction over any of the parties in terms of Section 28 of the Magistrates Courts' Act 32 of 1944 in respect of any dispute arising from or concerning this Agreement, provided that should the Service Provider elect to proceed in the Supreme Court it shall be entitled to do so in the Witwatersrand Local Division, to which jurisdiction the Subscriber hereby submits.
11.7. The Subscriber under takes to abide by AVOXI’s acceptable use policy.
11.8. AVOXI undertakes to treat all subscribers’ information as confidential
11.9. The Subscriber shall not be entitled to migrate to a lower tariff plan as offered by the Network Operators during the stipulated contract stated on the face hereof and or on the Product Addendum/as unless recommended by AVOXI.
11.10 AVOXI reserves the right in its sole discretion to vary or amend these terms and conditions from time to time and any such amended or varied terms and conditions shall be binding on the customer from the time that the amended or varied terms are published by AVOXI on our website. A notification will be sent out to the subscriber if changed.
11.11 The Subscriber undertakes to notify AVOXI within seven (7) days of any change of address or change in member, director, shareholder, address or the information as set out on the Company details section on our Customer Service Agreement document.
11.12 The Subscriber undertakes to inform AVOXI in writing at least thirty (30) days prior to the intended selling or alienating of the whole of or any part of the subscriber’s business and failure to do so will constitute a breach of this agreement entitling AVOXI to cancel the agreement without further notice to the customer. Subscriber also undertakes to notify AVOXI in advance about liquidations and or sequestrations and also provide the details of the appointed curator.
12. FORCE MAJEURE.
12.1. If AVOXI is prevented from or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement and the signed Product Addendum/s due to any reason or cause beyond the control of AVOXI or by reason of force majeure, AVOXI shall be relieved of its obligations in terms of this Agreement and the relevant signed Product Addendum/s during such period.
13 CREDIT FACILITIES
13.1 AVOXI SA (PTY) Ltd decision to grant credit facilities to the customer and the nature and extent thereof is at the sole discretion of AVOXI SA (PTY) Ltd.
13.2 AVOXI SA (PTY) Ltd reserves the right to withdraw, increase or decrease any credit facilities at any time without prior notice.
13.3 In the event that credit/account facilities being granted that it will be on the basis of and subject to the terms/ information and conditions set out on this application form.
13.4 Whether or not the information made available by the customer in this document is true and correct, it shall nevertheless be deemed to be true and correct.
13.5 In the event of any information made available in this document proving to be inaccurate or incorrect, no further facilities will be allowed and AVOXI SA (PTY) Ltd will forthwith and without further reference to the customer be entitled to institute recovery proceedings for any and all sums then owing by the customer to AVOXI SA (PTY) Ltd.
13.6 AVOXI SA (PTY) Ltd may perform a credit search on the customers’ records with one or more registered Credit Bureau when assessing the customers’ application form.
13.7 Monitor the customers payment behaviour by researching his/her record at one or more of the registered Credit Bureau.
13.8 Use new information and data obtained from other Credit Bureau in respect of the customers future applications.
13.9 Record the existence of the customer’s account with Credit Bureau.
13.10 Record and transmit details of how the customer has performed, and how the account is conducted by the customer in meeting his/her obligations on the account.
13.11 AVOXI SA (PTY) Ltd undertakes to give the customer 28 days written notice prior to the forwarding of the details to the Credit Bureau.
14 DEED OF SURETYSHIP
14.1 I, by my signature hereto do, in addition to the above, hereby bind myself in my private and individual capacity as surety for and co-principal debtor in solidum with the customer in favour of AVOXI SA (PTY) Ltd for the due performance of any obligation of the customer and for the payment to AVOXI SA (PTY) Ltd by the customer of any amounts which may at anytime become owing to AVOXI SA (PTY) Ltd by the customer from whatsoever cause arising and including, but without limiting the generality of the aforegoing, any claims for damages and actions against the customer. This suretyship shall be a continuing covering guarantee/surety which may only be cancelled, in writing, by AVOXI SA (PTY) Ltd and then only, provided that all sums then owing by the applicant (whether due or not) to AVOXI SA (PTY) Ltd have been paid in full.
14.2 I furthermore record that if more than one person has appended his signature hereto, there shall come into existence a separate distinct and independent contract of suretyship/guarantee which is brought into existence by each signatory hereto. If for any reason this suretyship/guarantee is not binding (for whatever reason) on any one signatory then the obligations of the remaining signatories shall nevertheless be and remain of full force and effect.
15. BREACH OF CONTRACT
15.1 In the event of a breach by the customer, should the customer fail to remedy such breach within 48 (forty eight) hours after receipt of notice to that effect from AVOXI SA (PTY) Ltd, or should the customer repeatedly breach this agreement in such manner that the customer’s conduct is inconsistent with the intention or ability of the customer to carry out the terms of the agreement, or if the customer is sequestrated or placed under liquidation or enters into judicial management or any act if insolvency or enters into a compromise with its creditors or fails to satisfy a judgement granted against it within 7 (seven) days of the date of judgement or changes the structure of its ownership, AVOXI SA (PTY) Ltd shall be entitled without prejudice to its rights in law or in terms of this agreement to take possession of the goods and is hereby irrevocably authorised to enter upon the customer’s premises to take delivery of such goods without Court order.