STANDARD TERMS AND CONDITIONS OF USE – RESIDENTIAL FIBRE
PLEASE FAMILIARISE YOURSELF WITH THE FOLLOWING TERMS AND CONDITIONS, INITIALLING WHERE INDICATED
PLEASE ALSO NOTE THE LINE PROVISIONING ON OUR NETWORK click here
In this Agreement:
1.0. All fibre references in this agreement is understood to be all & any interim Wireless network installation.
1.1. Clause headings are for convenience and shan’t be used in interpretation;
1.2. Unless the context clearly indicates a contrary intention, an expression which denotes any gender includes the other gender, a natural person includes an juristic person and vice versa and the singular includes the plural and vice versa;
1.3. In circumstances when the CPA applies to the Agreement, the provisions of the CPA will prevail in the event of a conflict between any provision of the Agreement and the provisions of the CPA.
1.4. In circumstances where there may be a conflict between specific and general terms, the specific terms shall take precedence.
1.5. the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings: –
1.5.1. “Agreement” means these terms and conditions of use, including all Schedules and Annexures hereto together with all other terms and conditions which ECF might, from time to time, impose in respect of the Service, as amended and updated from time to time;
1.5.2. “Business Day” means weekdays other than public holidays in South Africa;
1.5.3. “Business Hours” means 08h30 to 20h30 on Monday to Friday, and 10h00 to 18h00 on Saturdays, Sundays and public holidays;
1.5.4. “Confidential Information” means any information or data in whatever form or medium whether tangible or intangible, oral or in writing including, but not limited to, documents, materials or data which by its nature or content is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence or is designated as confidential information by the Disclosing Party whether or not owned or developed by the Disclosing Party, which is not generally known to the Receiving Party, to Receiving Party’s personnel and representatives, and of which the Receiving Party may obtain knowledge through or as a result of the relationship established hereunder with the Disclosing Party, access to the Disclosing Party, access to the Disclosing Party’s premises, or communications with the Disclosing Party’s employees, representatives or independent contractors. Without limiting the generality of the foregoing, “Confidential Information” shall include but is not limited to ideas, concepts, business plans, strategies, financial statements, pricing data, operations, inventions, discoveries, formulae, processes, designs, specifications, drawings, prototypes, sample, improvements, developments, applications, marketing data, customer names, projections, trademarks, trade names, and trade secrets, any commercial, financial, technical or strategic information, whether or not the same are or may be patented, registered, or otherwise publicly protected;
1.5.5. "CPA" means the Consumer Protection Act, 2008;
1.5.6. "CPA Regulations" means regulations promulgated under the CPA from time to time;
1.5.7. “Days” means calendar days;
1.5.8. “Commencement Date” means the date when the Service first commences;
1.5.9. “Equipment” means – inter alia and without limiting the generality thereof – both ECF’s customer premises equipment as issued to Subscribers and any other electronic equipment installed and/or provided by ECF to enable the operation of its Fibre Network and the provision of its Service there over;
1.5.10. “Fibre Network” means the optical fibre cable network deployed, operated and owned by ECF, which infrastructure is used as the connection medium over which ECF provides its Service;
1.5.11. “ICASA” means the Independent Communications Authority of South Africa;
1.5.12. "Initial period" means the period of the first agreement signed by the Subscriber in respect of the Service, as specified in the Service Schedule. The period will commence on the Commencement Date.
1.5.13. “Owner” means any commercial land and/or property owner in the Premises;
1.5.14. “Parties” means ECF and the Subscriber, and “Party” shall mean either ECF or the Subscriber;
1.5.15. "Renewal Period" means, unless otherwise specified in the product-specific terms of the Service Schedule:
188.8.131.52. if the Subscriber is a juristic person, a period ending on the day immediately after the expiration of the Initial Period or any subsequent renewal period;
184.108.40.206. if the Subscriber is a natural person, the period more fully specified in clause 3;
1.5.16. “Service” means the service as described in clause 2 below and elsewhere in this Agreement, as provided by ECF and available at the Premises;
1.5.17. “Premises” means the area, building, address and/or surrounding areas detailed on the face of this Agreement, the extent of which may be expanded by written agreement between the Parties;
1.5.18 “ECF” means East Coast Fibre (Pty) Ltd and where applicable their partner company.
1. DESCRIPTION OF SERVICE TO BE PROVIDED
1.1. ECF hereby agrees to provide the Subscriber with internet access and last-mile network services at the Premises by means of its Fibre Network in accordance with the parameters of the Service chosen by the Subscriber, as specified in the Service Schedule to which this Agreement is attached.
1.2. ECF reserves the right to amend, at any time, the technical parameters or specifications relating to the provision of the Service specified in the Service Schedule, but undertakes to provide the Subscriber with reasonable notice of such amendment.
2. TERM OF AGREEMENT AND TERMINATION
2.1. ECF undertakes to provide the Service to the Subscriber, subject to the further provisions of this Agreement, for the duration of the Initial Period and any Renewal Period as applicable.
2.2. The Initial Period of this Agreement is subject to the specific terms of the Service selected by the Subscriber, but shall persist from the Commencement Date for a period of 12 (twelve) months in duration.
2.3. In the event that the Subscriber upgrades the Service during the initial term or any period thereafter, then the Commencement Date in respect of the Service as upgraded shall then be the date when provision of the upgraded Service first commenced.
2.4. In the event that the Subscriber upgrades from a Service package with a higher construction fee to one with a lower construction fee, the difference in construction fees shall be offset against the monthly Service fees payable by the Subscriber for the upgraded Service package.
2.5. If the Subscriber is a juristic person, at the expiration of the Initial Period, unless otherwise notified in writing to the Subscriber, the Service and the Agreement will automatically continue on the terms of this Agreement for an unlimited number of Renewal Periods, unless terminated by the Subscriber, at the expiration of the Initial Period or any Renewal Period, as the case may be, by giving ECF written notice of termination not less than 30 and not more than 90 Days before the expiration of the Initial period or Renewal period, as the case may be.
2.6. Unless the CPA applies to this Agreement, ECF shall be entitled to terminate this Agreement at any time by giving 3 (three) months written notice to the Subscriber.
2.7. Either party may terminate a duly executed Schedule to this Agreement under the terms and conditions specific to such Schedule.
2.8. If the Subscriber is a natural person:
2.8.1. S/he may terminate the Agreement:
220.127.116.11. on the expiry of the Initial Period, by notice in writing to ECF,
18.104.22.168. during the Initial Period, on 20 Days written notice to ECF, subject to the provisions of clause 3.8.
2.8.2. ECF can, during the Initial Period, terminate the Agreement on 20 (twenty) Days’ notice after the Subscriber receives written notice to remedy a material breach and the Subscriber fails to remedy such breach within the time period allowed to do so.
2.8.3. If the Agreement is not terminated during the Initial Period by either Party in accordance with the provisions of this clause 3 and where the Subscriber has not agreed to a renewal of the Agreement for a further fixed term, the Agreement will continue, after the expiry of the Initial Period, on a month-to-month basis (terminable by either ECF or the Sub-scriber on one month's written notice to the other), subject to any material changes of which ECF has given written notice given under clause 3.3.4.
2.8.4. Not more than 80 nor less than 40 Days before the expiry of the Initial Period, ECF will notify the Subscriber in writing of the impending expiry of the Agreement, which notice will include any significant changes that would apply if the Agreement were to be renewed and will include the Subscriber's right to terminate or continue with the Agreement on the expiry of the Initial Period.
2.9. If the Subscriber terminates this Agreement prior to the expiration of the Initial Period or any Renewal Period for any purpose other than expressly provided for in this Agreement, the Subscriber will be liable for all amounts due to ECF until the date of termination and ECF shall be entitled (unless the Subscriber is entitled to terminate the Agreement without penalty in accordance with the provisions of the CPA, if applicable), to a cancellation / early settlement fee, provided that where the Subscriber is a natural person, ECF shall restrict such cancellation/early settlement fee to a reasonable fee determined to be in accordance with the guidelines set out in the CPA and, if applicable, the CPA Regulations.
2.10. ECF shall be entitled to request, prior to the conclusion of this agreement, and prior to the Commencement Date, information related to the Subscriber’s creditworthiness. For the avoidance of doubt the Parties agree that ECF is authorised to conduct all reasonable credit checks and searches and the Subscriber herewith expressly consents to ECF conducting the aforesaid credit searches in as much as it may be a requirement to obtain such consent in terms of relevant legislation.
2.11. If the conclusion of the Agreement is a result of direct marketing and the provisions of the CPA are applicable, the Subscriber has the right to terminate the Agreement without reason or penalty to ECF within 5 Days after the later of the date on which the Agreement was entered into or the Services or Equipment were delivered to the Subscriber. If the Subscriber has the original packaging of the Products opened for the return of the same to ECF on cancellation of this Agreement, ECF is entitled to deduct from any reimbursement or refund to the Subscriber in return, a reasonable amount for the use and/or depletion of the Products and/or Services.
3. PAYMENT AND PAYMENT TERMS
3.1. The Subscriber agrees to pay the installation and monthly fees associated with the Service chosen by the Subscriber, with payment of the Subscriber’s account being due upon presentation of invoice monthly in advance or by debit order, as the case may be.
3.2. Should the Subscriber fail to pay any amount on the due date for payment, then, without prejudice to any other rights ECF may have in law:
3.2.1. ECF shall be entitled to take all such further steps as may be necessary to recover the outstanding amount from the Subscriber, in which event the Subscriber agrees to pay all costs associated with such recovery on an attorney and own client basis;
3.2.2. ECF shall be entitled to, without notice, limit or suspend the Subscriber’s access to the Service until such time as the outstanding amount has been paid in full; and/or,
3.2.3. ECF shall be entitled to terminate this agreement with immediate effect.
3.3. Any change to the pricing of the Service is subject to prior written agreement between the parties of at least 1 (one) calendar month prior to the effective date of such change. In the event that no agreement can be reached in this regard then ECF reserves the right to unilaterally increase it pricing by an amount in line with reasonable industry standards, alternatively the Subscriber is entitled to provide 30 (thirty) Days written notice of its intention to terminate this Agreement.
3.4. All prices in this Agreement, together with any Schedules thereto, are quoted in ZAR and are exclusive of VAT.
3.5. ECF VAT registration is pending and will be a registered vendor.
3.6. Pro-rata billing will be implemented in the first month of the Initial Period following the Commencement Date.
3.7. Subject to ECF’s sole discretion, ECF shall be entitled to insist that payment of all amounts payable by the Subscriber is effected by debit order on the terms and conditions specified in this Agreement, and the Subscriber will be required to execute and deliver such further instruments, contracts, forms and other documents ("additional documentation") or perform such further acts as may be required by ECF for the purpose of obtaining such debit/s in favour of ECF, copies of which additional documentation has been made available to the Subscriber before the date of signature. Where payment is made by the Subscriber by means of a debit order, other electronic or any other intermediary, the Subscriber’s bankers or other intermediaries will act as Subscriber’s agents and the Subscriber will have discharged its obligations only upon payment being received by ECF at ECF’s premises or by the bankers of ECF.
3.8. In terms of the debit order, the Subscriber is aware of a non-refundable setup fee, outright purchases and pro-rata amounts applicable to the services applied for, and accepts that these amounts will be debited be from their account immediately when the service is activated.
3.9. Any cancellation of such a debit order without the prior written consent of ECF constitutes a contravention by the Subscriber of this Agreement.
4. INSTALLATION AND ACCESS TO THE PREMISES
4.1. Subject to reasonable prior notice, the Subscriber hereby agrees to accept installation of ECF’s Fibre Network during Business Hours, whenever such installation might be tendered.
4.2. The Subscriber acknowledges that installation is subject to the prior payment of the construction fee corresponding to the Service chosen by the Subscriber.
4.3. The Subscriber undertakes to ensure that ECF’s employees or agents are afforded reasonable access to the Premises throughout the term of this Agreement, provided that such access shall only take place during Business Hours.
4.4. ECF undertakes to ensure that its employees or agents comply in all respects with the such access policies as may be in place at the Premises and that they at all times conduct themselves in accordance with the applicable rules of the Premises.
4.5. The Subscriber is entitled to require positive identification from ECF’s employees, agents or contractors before affording them access to the Premises.
4.6. ECF will neither do nor permit anything to be done which may endanger, obstruct or prejudice the employees or Premises or the common property or Owners and Tenants.
5. AUTHORITY AND ACKNOWLEDGEMENTS
5.1. Each Party warrants that it has the necessary legal powers and authority to enter into this Agreement.
5.2. The signature and/or digital acceptance of a Party representative warrants that he/she is authorized to act for that Party.
5.3. The Subscriber specifically acknowledges that:
5.3.1. it has been given sufficient opportunity to read and has read and understand the Agreement including but not limited to ECF’s product-specific terms and conditions, where applicable;
5.3.2. has read and is aware of all terms and conditions contained herein that are printed in bold and initialled by the Subscriber as confirmation of this; and,
5.3.3. this Agreement together with all annexures and schedules thereto hereby supersedes, nullifies and/or voids any and all agreements previously entered into between the Parties.
5.4. Where the physical installation of Equipment is needed, and notwithstanding any other clause in this regard contained elsewhere in this Agreement, the Subscriber warrants that it has obtained all necessary permissions from the owner, as the case may be.
6. GRANT OF RIGHTS
6.1. In addition to any rights afforded to ECF in terms of any prior agreement between the Parties, the Subscriber hereby confirms ECF’s right to install, locate and otherwise operate its Equipment at the Premises.
7. ACCEPTABLE USE
7.1. The Subscriber irrevocably accepts all consequences of its own activities and the activities of all employees, independent contractors, directors and others under the control of the Subscriber when using the Service.
7.2. The Subscriber irrevocably accepts that it is solely responsible for security and the maintenance of the security of any confidential information stored on or transmitted through the Service and including passwords and access codes.
7.3. The use of the Service by the Subscriber or any party accessing the Service through the Subscriber for the accessing or transmission of any content or material which violates any law or regulation and/or which use constitutes an unlawful or illegal activity, is prohibited.
8. SERVICE INTERRUPTION
8.1. ECF will attempt to ensure that the Subscriber is warned well 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 as this is a best effort service.
9.1. Any Equipment provided to the Subscriber for use at the Premises by ECF will remain the property of ECF. ECF shall remove the Equipment upon termination of this Agreement.
9.2. The Subscriber is required to provide a secure area or space for the situation of the Equipment to be deployed in the Premises, including access points that may be installed on walls, the roof and other suitable places and routers, switches, and UPSs.
9.3. The Subscriber shall take reasonable care of the Equipment so situated, and is expected to return the Equipment in good condition to ECF on termination of this Agreement, fair wear and tear excepted.
9.4. Where the Subscriber has any equipment or software or hardware that has not been supplied by ECF in terms of this Agreement, then ECF will have no obligation to correct, repair or support such equipment, software or hardware, and will otherwise have no responsibility for such equipment, software or hardware.
10. NON-ACCESSION OF MOVABLES
10.1. The Subscriber acknowledges that all Equipment installed in the Premises by ECF, whether a mast, antenna, fibre, electronic equipment or other, shall be deemed to be moveable property, and shall remain as the property of ECF, and that all such property does not and shall not accede to the immovable property of the Subscriber, unless otherwise expressly provided for in this Agreement.
11.1. ECF shall at its own costs and expense, be responsible for obtaining and thereafter maintaining whatever regulatory consents and licences that may become necessary to enable it to use, occupy and have access to the facilities and Premises for the purposes envisaged in this Agreement.
11.2. Should ECF fail to obtain any of the consents and or licences referred to in clause 11.1 above, or should any such consent or licence, having been granted, be suspended or revoked by the relevant authority, either Party shall be entitled, by notice in writing to the other to terminate this Agreement upon 30 (thirty) Days’ written notice to remedy the situation.
11.3. ECF shall at all times comply with all applicable laws, by-laws, ordinances, proclamations and regulations relating to its occupation of the Premises.
11.4. In the event that the regulatory environment changes to the extent that either of the Parties is not able to comply with the terms of this Agreement, the Parties shall meet promptly to negotiate in good faith in order to amend this Agreement to enable the Parties to comply with such changes in the regulatory environment. Where the Parties are not able, within a reasonable period, to amend this Agreement due to the required changes being technically or financially not feasible, either Party shall be entitled to terminate this Agreement forthwith without attracting any liability.
12.1. Any specifications, descriptive matter, drawings and other documents which may be furnished by ECF to the Subscriber from time to time:
12.1.1. Does not form part of this Agreement and may not be relied upon, unless agreed upon in writing by both Parties hereto;
12.1.2. Shall remain the property of ECF and shall be deemed to be been imparted by it in trust to the Subscriber for the sole use of the Subscriber. All copyright in such documents vests in ECF. Such documents shall be returned to ECF upon demand.
13.1. ECF warrants that:
13.1.1. The Subscriber warrants that: –
13.2.1. it is the registered owner and/or lawful occupier, with all the necessary authority and powers to enter into this Agreement, and to grant to ECF the rights provided for in this Agreement;
13.2.2. in the event of a dispute between the parties, it shall not for any reason prohibit or prevent access to the Premises by ECF or its employees or agents;
14. LIMITATION OF LIABILITY
14.1. Under no circumstances shall one Party be liable to the other Party or any other person for any delay, failure, crash, breakdown or loss of data, nor for any damages, loss, costs, claim, penalty, fine, expense, loss of profits or for indirect, incidental, special or consequential damages arising from or as a result of the intentional or negligent act or omission of any person not being an employee, contractor, sub-contractor or agent of the indemnifying Party or any third party not authorised to act on its behalf in terms of this Agreement; or the actions, omissions or service interruptions of any utilities provider including a telecommunications or electrical services authority or a supplier of telecommunications or electrical services.
15.1. Should either Party breach any of the terms and conditions of this Agreement, then the aggrieved Party shall be entitled forthwith, if the defaulting Party has failed to remedy such breach within a period of 7 (seven) Days after receipt of written notice by the aggrieved Party requiring it to do so, to claim immediate payment and/or performance of all the defaulting Party’s obligations, whether or not the due date for payment and/or performance shall have arrived, in either event without prejudice to the aggrieved Party’s right to claim damages or any other rights as the aggrieved Party may have in law. Notwithstanding anything to the contrary, neither Party shall be liable to the other for any indirect or consequential losses.
15.2. Either Party may terminate this Agreement immediately by written notice to the other Party where such other Party:
15.2.1. Enters into any compromise or attempt to compromise the debts owing by it to its creditors generally; or
15.2.2. Is subject to an order placing such Party under judicial management or for its final or provisional liquidation is granted or the proposing of any resolution for voluntary winding-up, other than for reasons of a bona fide restructuring.
16. CHANGE OF OWNERSHIP & ASSIGNMENT
16.1. Where the Subscriber is the Owner of the Premises, the Subscriber shall notify any prospective buyer of the Premises or any portion thereof of the existence of this Agreement.
16.2. In the event of the sale of the Premises or portion thereof, the Subscriber shall furnish ECF with the full name(s), address, telephone, cellular and fax number of the purchaser.
16.3. Notwithstanding any provision of this Agreement, it is hereby agreed that in the event of a sale of the Premises or any portion thereof by the Subscriber, this Agreement will continue uninterrupted in respect of the Premises or such portion until the expiration thereof, including any renewal periods as contemplated above.
16.4. The Subscriber warrants that it shall do all such things as may be necessary to be effect to this clause and to ensure that the rights accorded to ECF in terms of this Agreement are valid and enforceable against any transferee as set out in this clause. The Subscriber indemnifies ECF against any loss occasioned by its failure to abide by the terms of this warranty.
16.5. ECF shall not cede nor assign its rights and/or obligations in terms of this Agreement without the prior written consent of the Subscriber or the relevant party, which consent shall not be unreasonably withheld.
17.1. The Subscriber agrees that the existence and contents of this Agreement, together with the contents of all schedules, annexures and terms and conditions thereto are, for the purposes of this clause, deemed to be Confidential Information.
17.2. Subject to clauses 19.2 to 19.4, each Party must:
17.2.1. Protect the Confidential Information in the manner, and with the endeavour of a reasonable person protecting his own Confidential Information;
17.2.2. Use the Disclosing Party's Confidential Information only for the purposes of this Agreement;
17.2.3. Take all practical steps, both before and after disclosure, to impress upon its employees who are given access to the Confidential Information the secret and confidential nature thereof; and
17.2.4. Not make any Announcement or issue press releases about the Agreement or the transactions related to it without the approval of the other Party.
17.3. Clause 19.1.1 does not apply to Confidential Information that is in the public domain other than such Confidential Information that has entered the public domain as a result of a breach of this Agreement or any other obligation of confidence.
17.4. A Receiving Party may disclose the Confidential Information of the Disclosing Party if that disclosure is to the employees, contractors or professional advisers of the Receiving Party or its affiliates who have a need to know that information in relation to provision of Interconnection services and who have agreed to keep it confidential.
17.5. A Party may disclose Confidential Information of the Disclosing Party or make an Announcement that is required in accordance with any applicable law provided that the Receiving Party has consulted with the Disclosing Party prior to making such disclosure and provided that the disclosure is confined to that which is absolutely necessary in terms of such legal duty and/or order.
17.6. The Parties acknowledge and agree that, for the purposes of Section 64(1) of the Promotion of Access to Information Act, No. 2 of 2000, the Confidential Information is provided in confidence by the Parties.
18. INTELLECTUAL PROPERTY RIGHTS
18.1. Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
18.2. Each Party indemnifies the other Party against all claims, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement, passing-off and/or unlawful competition in relation to any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the unlawful and/or unauthorised use by a Party of the Intellectual Property Rights of the other Party.
19. DISPUTE RESOLUTION
19.1. In the event that any dispute of whatever nature arises under this Agreement or its implementation then the Parties must refer the dispute for resolution, first, by way of negotiation and failing that, by way of mediation, and failing that, by way of arbitration. The dispute may not be referred to arbitration unless the negotiation and mediation processes have been completed.
19.2. A dispute shall arise on the date on which one Party gives the other Party written notice of the details regarding any matter in dispute by the Parties in relation to this Agreement.
19.3. Negotiation. Within 3 (three) Days of the dispute arising, the Parties shall seek an amicable resolution by referring the dispute to representatives of each of the Parties, who must have authority to resolve the dispute, and who must negotiate in good faith in an endeavour to resolve the dispute. The referral period may be varied by written agreement between the Parties.
19.4. If the dispute is not settled by negotiation, the Parties' representatives shall, in writing, record the reason for the failure and the issues that remain in dispute (“failed negotiation record”) for the purpose of referring the dispute to mediation.
19.5. Mediation. In the event of the negotiation failing for any reason whatsoever, the Parties must, within 14 (fourteen) Days of the date of the failed negotiation record, refer the issues that remain in dispute for resolution by way of mediation. A neutral mediator with experience in communications-related mediation will be appointed by one of the parties with consent from both parties within 10 (ten) Days. The referral period may be varied by written agreement between the Parties.
19.6. If the dispute is not settled by mediation, the mediator shall, in writing, record the reason for the failure and the issues that remain in dispute (“failed mediation record”) for the purpose of referring the dispute to arbitration.
19.7. Arbitration. In the event of the mediation failing for any reason whatsoever, the Parties must, within 14 (fourteen) Days of the date of the failed mediation record, refer the issues that remain in dispute to arbitration in accordance with the following provisions:
19.7.1. the arbitration will be held and finalised in Durban in accordance with the expedited arbitration rules of the Arbitration Foundation of Southern Africa (“AFSA”);
19.7.2. one arbitrator will be appointed by agreement between the Parties;
19.7.3. if the Parties cannot agree on the arbitrator within a period of 5 (five) Days after the dispute was referred to arbitration, the arbitrator shall be appointed by the Secretariat of AFSA.
19.8. General (relating to the dispute resolution). The provisions of this dispute resolution clause shall not preclude any Party from approaching any High Court of competent jurisdiction for an interdict or other injunctive relief of an urgent nature during the dispute resolution process.
19.9. The references to:
19.9.1. AFSA shall include any institution or body that replaces or succeeds them or that they may nominate in writing to act in their stead if they are for any reason unable to act; and
19.9.2. the rules of AFSA mean the rules that are in operation at the time when the dispute is referred for resolution.
19.10. The agreement contained in this dispute resolution clause is separate and divisible from the other provisions of this Agreement and shall remain in
effect even if the Agreement is cancelled or terminated for any reason whatsoever.
20. LEGAL NOTICES
20.1. The Parties choose the addresses set out on the face of this Agreement as their respective addresses (“domicilia”) for the purposes of giving any notice, the payment of any sum (unless otherwise specified), the serving of any process and for any other purpose arising from this Agreement.
20.2. Each of the Parties shall be entitled from time to time by written notice to the other, to vary its domicile to any other street address within the Republic of South Africa, which change will take effect on the date on which the notice is deemed to be received by the other Party in terms of clause 19.4 below.
20.3. Any notice required to be given in terms of this Agreement shall be valid and effective only if in writing.
20.4. Any notice given by one Party to the other (“the addressee”) which:
20.4.1. is delivered by hand during normal business hours at the addressee’s domicile shall be deemed to have been received by the addressee at the time of delivery;
20.4.2. is given by fax or e-mail shall be deemed to have been received by the addressee on the first working day following the day of successful transmission of the fax or e-mail as the case may be;
20.4.3. is given by pre-paid registered post shall be deemed to have been received by the addressee 10 (ten) Days after the day of posting.
21. FORCE MAJEURE
21.1. Neither Party shall incur any liability by reason of any failure to fulfil any obligation in terms of this Agreement if such failure is occasioned by a Force Majeure consisting of acts of God, fire, accident, government acts, explosion, industrial dispute or any other act, omission or event beyond the reasonable control of such party. The onus of proving that such failure was occasioned by a Force Majeure shall rest on the Party alleging same.
22. APPLICABLE LAW AND JURISDICTION
22.1. This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African Court having jurisdiction.
23.1. Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
24.1. The Subscriber shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by ECF, which consent may not be unreasonably withheld.
25. AMENDMENTS TO THE GENERAL TERMS AND CONDITIONS
25.1. This Agreement constitutes the whole Agreement between the parties relating to the subject matter hereof.
25.2. Subject always to the right of the Subscriber to terminate this Agreement in accordance with the provisions of clause 3, ECF – in order to give effect to improvements in the Service it offers – may occasionally be required to amend this Agreement. ECF shall in its sole discretion, have the right to amend this Agreement and to modify and/or discontinue any function or component of the Service, as it deems necessary. Any use by the Subscriber of the Service after any such amendment implemented and notified to the Subscriber in writing by ECF shall be deemed to be acceptance to the Subscriber of such amendment.
26.1. No amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorised representative from both ECF and the Subscriber.
27.1. No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against either parties hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.