The Applicant must take note of the details set out under this Foreword. If you cannot understand these general provisions, which are preconditions to the standard CloudWize Terms and Conditions, please contact your CloudWize. Please note that the Standard Terms and Conditions are attached for you to read and consider. They will become binding and apply to you once CloudWize has agreed to provide you with the service or device, which you have requested under the Application Form.
EXCLUSION OR LIMITATION OF LIABILITY CLAUSES
In terms of section 49 of the Consumer Protection Act 68 of 2008, a term or notice that purports to limit in any way the risk or liability of the supplier or any other person constitutes an assumption of risk or liability by the Consumer. This imposes an obligation on the Consumer to indemnify the supplier or any other person for any cause that constitutes the acknowledgement of any fact by the Consumer, it must be written in plain language and the fact, nature and effect of such provision must be drawn to the attention of the Consumer before the Consumer concludes the transaction or is required to offer consideration under it. This must be done in a conspicuous manner and form likely to attract the attention of the ordinarily “alert” Consumer having regard to the circumstances and the Consumer must be given adequate opportunity to comprehend the notice or provision.
CloudWize has housed certain clauses, which contain certain limitations, under its Standard Terms and Conditions and the Agreement. These clauses are highlighted and include the following:
1.1 Migration – Any request by you to migrate will be subject to certain conditions, including the payment of any additional Migration charges, levied by CloudWize, which charges are detailed under the Service and Charges or as advised by CloudWize upon the signature of a new Agreement.
1.2 Charges and payment – CloudWize will levy certain charges in respect of the use by you of the Mobile Services and Mobile Goods. CloudWize also has the right to ask for a deposit and set credit limits and levy interest on unpaid charges and ask for legal costs in the case of a matter that has been handed to attorneys.
1.3 Change in number due to reasons beyond CloudWize’s control– CloudWize may be forced to change your number by a regulator, and if this occurs CloudWize will not be liable to you or to any other person for any loss, damage or costs (direct, consequential or otherwise) that may be incurred in consequence of any change to the number.
1.4 Limited liability and indemnity – CloudWize, under certain circumstances, will not be responsible for certain damages or losses that may be incurred as a result of the purchase and/or use of the Mobile Services and/or Mobile Goods. The Applicant must before conclusion of the Application, carefully consider the CloudWize Standard Terms and Conditions housed under the Agreement, that is applicable to the CloudWize Mobile Goods and/or Mobile Services, which purport to limit the risk or liability of CloudWize or other third parties acting on behalf of CloudWize.
APPLICATION OF STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions which may be amended by CloudWize from time to time in accordance with the provisions of CloudWize’s license. The Consumer Protection Act 68 of 2008 or any other applicable legislation, are applicable to the provision and use of all electronic communications services and products provided by CloudWize Subscribers.
The Subscriber accepts and agrees that these terms and conditions become binding once CloudWize has processed the Subscriber’s Application and agreed to provide the Subscriber with the CloudWize Selected Mobile Services and/or Selected Mobile Goods.
CloudWize will notify the Subscriber of its acceptance or non-acceptance and where applicable the deposit, which it may require in order to secure the Selected Mobile Services and/or selected goods.
APPLICATION FOR MOBILE SERVICES AND MOBILE GOODS AND CONDITIONS APPLICABLE TO SUCH APPLICATION
Persons wishing to obtain CloudWize Mobile Services or Mobile Goods must apply for the Mobile Services by completing and signing the standard CloudWize Application Form, If:
- the Applicant is unable to either afford the goods or services applied for, or is in arrears on existing or closed CloudWize fixed line or CloudWize accounts;
- the Applicant has not paid a deposit where required;
- the Applicant has been blacklisted or has an adverse credit rating as per the National Credit Act 34 of 2005;
- the Applicant is under some form of legal disability, for example, is under the age of 18, is insolvent or has been sequestrated or is insane;
- the Applicant has not provided the required or correct information;
- CloudWize is unable to provide the required services or goods due to unavailability of infrastructure or infrastructure limitations; or
- there is an unavailability of coverage in a specific area,
CloudWize has the right to decline and/or reject the Application and the offer to contract, provided that such rejection is not discriminatory as per Section 9 of the Constitution, 1996.
AMENDMENT OF CLOUDWIZE STANDARD TERMS AND CONDITIONS
CloudWize reserves the right to amend its Standard Terms and Conditions from time to time, subject to the provisions of the Consumer Protection Act 68 of 2008, in so far as these amendments may relate to a Consumer, as defined.
The Applicant and Subscriber give CloudWize permission to carry out general and specific credit reference enquiries about the Applicant who has applied for any Mobile Goods or Mobile Services. In addition, the Applicant and Subscriber expressly give CloudWize permission to check the correctness of any of the information supplied by the Applicant when applying for any Mobile Goods or Mobile Service.
WARRANTY BY APPLICANT
The Applicant warrants and represents that all information supplied in applying for the CloudWize Goods or Mobile Service is true, correct, complete and indemnifies and holds CloudWize harmless against all claims, of whatsoever nature, that arise, directly or indirectly, as a result of the Applicant or its agent providing CloudWize with any incorrect information.
CloudWize will use the Applicant/Subscriber’s information strictly in accordance with the Regulations promulgated in terms of Section 69 of the Act, being Regulation 1740 headed: Code of Conduct for electronic communications and electronic communications network services licenses (Government Gazette No. 30553) and in particular Regulation 3.8, which states as follows:
Licensees must protect the confidentiality of Consumer information, and in particular, must (a) use the information only for the purpose permitted or required, (b) report or release that information only to the Consumer or prospective Consumer, (c) only release that information to another person:
(i)When directed by the written instruction of the Consumer or prospective Consumer;
(ii) When directed by an order of a court;
(iii) during the process of collection of debts owed to the licensees to accredited debt collection agencies; (iv ) by the licensees’ auditors for the purpose of auditing their accounts; or
(v)In terms of any applicable law.
- MEANINGS OF CERTAIN WORDS AND PHRASES
To enable the Subscriber to read and understand the terms of this Agreement, which it is to be concluded with Tricho Holdings T/A CloudWize (Pty) Ltd (LEGAL) operating through its mobile division, hereinafter referred to as “CloudWize”, the Subscriber must understand the meanings of certain words and phrases which are referred to throughout the Agreement.
1.1 The words and phrases listed below must have the meaning set out next to the corresponding word or phrase unless the context indicates otherwise:
“Act” means the Electronic Communications Act 36 of 2005, as amended from time to time, which Act, amongst other things, regulates the telecommunications industry and related sectors and the provision by them of certain electronic communications network services and electronic communication services
“Activates” means the connection of the Subscriber SIM card or Mobile Number to the Network;
“Agreement” means the Application Form, the CloudWize Services & Charges , and these terms and conditions, which apply to the Subscriber, in respect of the Selected Mobile Services and Selected Mobile
Goods, together with any Renewal Addendum, where applicable;
“Applicant” means the person whose details are reflected on the Application Form whether captured on paper, or via electronic means such as voice recordings, computer generated and captured data or similar means;
“Applicable Law” means any of the following, to the extent it applies to CloudWize, the Subscriber or the Goods and Services:
(i) Any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;
(ii) The common law and the law of equity;
(iii) Any binding court order, judgement or decree;
(iv) Any applicable industry code, policy or standard enforceable by law; and
(v) Any applicable direction, rule, pronouncement, policy or order that is given by a regulator.
“Application Form” means the document completed by the Applicant, whether completed in writing, electronically or telephonically, which houses the Applicant’s details and the
Subscriber’s request that CloudWize provide it with certain Selected Mobile Services and/or Selected Mobile Goods;
“Authority” means the Independent Communications Authority of South Africa (ICASA) established in terms of section 3 of the Independent Communications Authority of South
Africa Act of 2000 and its successors who govern and oversee the telecommunications and electronic communications industry;
“Business Day” means Monday to Friday, excluding Saturday and Sunday and excluding any public holidays defined under the Public Holiday Act, 36 of 1994;
“Charges” means the amounts charged by CloudWize respect of the Selected Mobile Services and Selected Mobile Goods, used by the Subscriber during the previous month, such as the cost of the Selected Mobile devices and ancillary goods, connection fees, call and bundled data charges, levies, taxes and interest, which charges are set out under the CloudWize Service & Charges, and which Charges will be set out under the invoice, which will be submitted to the Subscriber in terms of the Agreement;
“Commencement Date” means the date when CloudWize has processed the Application and notified the Subscriber that it has agreed to provide the Subscriber with the
Selected Mobile Services, and where applicable, the Selected Mobile Goods;
“Connection Date” means the date when CloudWize activates the Subscriber’s SIM card or Mobile Number to the Network, allowing the Subscriber to utilise the Selected
Mobile Services and Selected Mobile Goods;
“Consumer” means an Applicant/Subscriber who is a “Consumer “as defined under section 1, section 6 and Regulation GN 294 of 2011 of the CPA;
“CPA” means the Consumer Protection Act 68 of 2008, as amended, from time to time, together with its regulations, as amended or replaced from time to time;
“Credit Referencing Procedure” means the procedure set up by CloudWize determine the creditworthiness of an Applicant;
“Due Date” means the date on which any amounts owed by the Subscriber to CloudWize in respect of the Selected Mobile Services and the Selected Mobile Goods become due and payable, which date is printed on the Monthly Invoice;
“ECTA” means the Electronic Communications and Transactions Act 25 of 2002, as amended from time to time;
“Fixed-term Agreement” concluded by CloudWize with subscriber to a maximum period of (3) three years.
“Individual Consumer” means a Consumer who is a natural person;
“Initial Period” means the number of months for which the Agreement will endure, which the Subscriber has selected under the Application Form under the line item “contract period “which period will commence/start running on the Commencement Date;
“Interest Rate” means the interest rate determined by CloudWize from time to time levied on any outstanding amounts due to CloudWize which will not exceed the maximum rate allowed
“International Roaming” means the ability to make use of the Mobile Device and/or Mobile Services while in another country using the services of a foreign network outside of the geographic locale of CloudWize ‘coverage but always subject to clause 5.8 of the Agreement;
“Migration” means the Subscriber’s election to change the Selected Mobile Services received under the Agreement to another, which, if accepted by CloudWize, will give rise to a change to the Usage Charges;
“Minimum Service Standards” means the minimum service standards for end users and Subscribers set by the Authority (ICASA), housed under the Act, titled Regulations Setting out the Minimum Standards for End User and Subscriber Service Charters, GNR. 774 of 24 July 2009, Government Gazette No. 32431, as amended or replaced from time to time;
“Mobile Device(s)” means a mobile terminal, including, without generalising, a cellular phone or handset, data device, module, computer or PC, and accessories that can be used by the Subscriber to make and/or receive Mobile Device calls, and/or to send and/or receive Mobile Device messages (SMS) and/or the use of data services that are carried via the Network and/or to access the Network for the purpose of using the Selected Mobile Goods and/or the Selected Mobile Services;
“Mobile Goods” means the Mobile Devices, which are offered for sale or rental by CloudWize from time to time, as set out under the CloudWize Service & Charges;
“Monthly Invoice” means the detailed notification of charges sent on a monthly basis to the Subscriber in a computerised format setting out all amounts due and owing to CloudWize
Mobile by the Subscriber in respect of the Selected Mobile Services and/or the Selected Mobile Goods;
“Mobile Number” means the Mobile Subscriber Integrated Services Digital Network (MSISDN) mobile or cellular phone number, which is associated with the SIM card at the time of Activation;
“Mobile Number Portability” means the Subscriber’s ability to move its Mobile Number from one mobile network operator to another without having to change its Mobile Number;
“Mobile Services” means the Mobile Services made available through the Network by CloudWize from time to time, as set out under the CloudWize Service & Charges;
“Network” means the electronic communications network, which is operated by CloudWize; make its Mobile Services available to the Subscriber and its other customers and Subscribers;
“Non-Core Services” means Value Added Services, which a Subscriber may opt to add on to an existing package or CloudWize Services & Charges to enhance the Selected Mobile Services and/or the selected Mobile Goods used by the Subscriber;
“Office Hours” means CloudWize’s normal business hours, as determined by CloudWize from time to time, currently being, 08h00 to 16h30 on Business Days;
“Parties” means collectively, CloudWize the Subscriber;
“Personal Data” means all personal details conveyed to CloudWize the Applicant/Subscriber such as his/her identity, whereabouts, credit levels, financial status, earning capabilities, family members, likes, preferences and dislikes, which are required in order to process the Application and required to determine current and future Subscriber requirements;
“Post-Paid Account” means a Fixed Term Agreement concluded between CloudWize the Subscriber where the Subscriber is charged rental for the use of the Selected Mobile Goods in advance and Usage Charges in arrears for the Selected Mobile Services, known as the bundle of Mobile Goods and Services, which could include, without generalizing, service charges and/or fixed charges for the phone number and account, Usage Charges (for a voice service, per text/pic/multimedia message sent or received and per megabyte of data service used), alternatively a flat fee for Unlimited Voice, Messaging and Data services;
“Pre-Paid Account” means an agreement concluded between CloudWize and the Subscriber where the Subscriber is allowed from time to time to purchase in advance a predetermined value of airtime, enabling the Subscriber to utilize the Selected Mobile Services until such airtime is depleted or expired. If there is no available airtime then access to the requested service is denied by CloudWize. Subscribers are able to top-up their airtime at any time using a variety of payment mechanisms;
“Regulations” means any regulations promulgated in terms of section 95 of the Act;
“Renewal Addendum” means the renewal agreement concluded by the Parties, which sets out the additional terms applicable to the Renewal Period;
“Renewal Period” means the additional number of months which the Parties have renewed the Agreement for, as set out under the Renewal Addendum/Application Form, which period will start on the day following the last day of the Initial Period;
“RICA” means the Regulation of Interception of Communication and Provision of Communication Regulated Information Act 70 of 2002, together with the regulations as amended/replaced from time to time;
“Selected Mobile Goods” means the Mobile Device(s) which the Subscriber has asked CloudWize to provide it with in terms of this Agreement, where applicable in order that the Subscriber may make use of the Selected Mobile Services;
“Selected Mobile Services” means the Mobile Services that the Subscriber has asked CloudWize to provide it with, which forms the subject matter of this Agreement and which is accessed using the SIM card and the Selected Mobile Goods, Mobile Number and/or the Mobile Device(s);
“SIM card” means the Subscriber Identity Module card incorporating the allocated Mobile Number, allocated to the Subscriber by CloudWize enable the Subscriber to gain access to the Network and make use of the Selected Mobile Goods and the Selected Mobile Services;
“Subscriber” means the person who CloudWize has agreed to provide the Selected Mobile Services and/or the Selected Mobile Goods to, as listed in the Application Form and who will be liable for the payment of the Charges and compliance with the Agreement;
“CloudWize Service & Charges” means the document setting out the various Mobile Services and Mobile Goods and associated CloudWize Services & Charges, offered and made available by CloudWize the public, from time to time; and also the charges levied by CloudWize respect of the Selected Mobile Goods and the Selected Mobile Services, as amended from time to time, and payable to CloudWize the Subscriber, which is housed under the CloudWize Service & Charges
“CloudWize” means a public company duly incorporated under the company laws of South Africa with its registered office at CloudWize,
7 Langeberg Avenue, Van Riebeeck Park, Kempton Park, Guateng, South Africa with Registration Number (2012/219733/07);
“Usage Charges” means the monthly charges levied either monthly in advance or in arrears by CloudWize, in respect of the use by Subscriber of the Selected Mobile Services and/or the Selected Mobile Goods;
“VAS” means certain noncore but value-added Mobile Services offered by CloudWize, as listed under the CloudWize Service & Charges, which services are at CloudWize’s discretion, and will vary from time to time.
1.2 The Subscriber is to note that where applicable, and depending on the context:
1.2.1 Words which make reference to the singular shall include a reference to the plural and vice versa;
1.2.2 Words which make reference to one gender shall include the other gender; and
1.2.3 Any reference to a person shall include a company, body corporate, firm or association and vice versa.
1.3 The Subscriber acknowledges that the provisions of ECTA apply to the Agreement, the Parties expressly agreeing:
1.3.1 that where a provision of the Agreement requires that a document must be signed or initialled, that signing or initialling may be affected in any manner recognised by law, including the use of an electronic signature, as defined in ECTA. CloudWize in this regard will take reasonable measures to prevent the use of the Consumer’s electronic signature for any purpose other than the signing or initialling of the particular document that the Consumer intended to sign or initial; and
1.3.2 that where anything is required to be in writing, unless expressly stipulated to the contrary by CloudWize, any electronic communication, including an SMS, voicemail, telephonic call or electronic message such as an e-mail, exchanged between the Parties, will meet this requirement.
1.4 The Subscriber is to note that when a particular number of days is provided for between the happening of one event and another, the number of days must be calculated by:
1.4.1 Excluding the day on which the first such event occurs;
1.4.2 Including the day on, or by, which the second event is to occur; and
1.4.3 Excluding any public holiday, Saturday or Sunday that falls on or between the days contemplated in clauses 1.4.1 and 1.4.2, respectively.
- AGREEMENT TO CONTRACT AND APPLICATION OF THESE TERMS AND CONDITIONS
This clause confirms that you, the Subscriber, have asked CloudWize to provide you with certain Mobile Services and/or Mobile Goods which you selected when you completed the Application Form, which services and goods are described on the CloudWize Service & Charges and must be provided at the prices set out under the CloudWize Services & Charges, and that CloudWize has agreed to provide you with the selected services and goods, on condition that you comply with the terms and conditions set out under this Agreement.
2.1 The Subscriber accepts and agrees that these terms and conditions will become binding on the Commencement Date, that is, once CloudWize has processed the Application Form and agreed to provide the Subscriber with the Selected Mobile Services and/or the Selected Mobile Goods, which is known as the Commencement Date. In other words, the Agreement will commence on the Commencement Date.
- PROCESSING OF PERSONAL INFORMATION, RIGHTS TO PRIVACY AND RICA
Although CloudWize respects you, the Subscriber’s, privacy and to this end your right not to have your personal data misused or distributed to other persons, you, the Subscriber have to comply with the provisions of RICA, which is a law that requires that bodies such as CloudWize verify your details before they are able to provide you with a cellphone, mobile data device or communication service. This clause sets out CloudWize’s undertaking to protect and respect your personal data and not to misuse it. It also sets out your undertaking to comply with RICA.
3.1 CloudWize undertakes to process and use Subscriber Personal Data only for the purpose for which it has been collected and undertakes that this processing must be carried out in accordance with any notice, consent or other requirements which may be required by any applicable law in force in South Africa from time to time.
3.2 The Subscriber accepts that RICA applies to the Selected Mobile Goods and/or Selected Mobile Services, which the Subscriber has requested CloudWize to provide it with under this Agreement, and agrees that it must, where applicable, comply with the relevant requirements of RICA, including, without generalising:
3.2.1 To provide CloudWize with all required Personal Data and other details that CloudWize requires to obtain from the Subscriber, in terms of section 40 of RICA.
3.2.2 to immediately report any loss, theft or destruction of the SIM card and/or the Mobile Device used in connection with the Selected Mobile Services to the police; and
3.2.3 not to transfer the SIM card to another person, other than a family member or dependent without providing CloudWize with the Personal Data and other details of the person who is taking over the SIM card
3.3 The Subscriber acknowledges and accepts that where it does not comply with these provisions set out under clause 3.2, that this will amount to a material breach by the subscriber of this agreement, which will allow CloudWize to cancel the agreement and to claim damages as a result of the cancellation.
3.4 The Subscriber also acknowledges and accepts that where it does not comply with these provisions set out under clause 3.2, that this will be a breach of RICA and this will give rise to a possible criminal charge and sanction being imposed against the Subscriber as per the requirements of RICA.
- DURATION, RENEWAL AND TERMINATION FOR NO CAUSE
The clause sets out how long the Agreement will run for and your rights to cancel the Agreement.
4.1 Duration of the Agreement and renewal rights
4.1.1 Notwithstanding the Connection Date, the Agreement will start on the Commencement Date and will carry on for the contract Period, as selected by the Subscriber under the Application Form and for any Renewal Period, where renewed by the Subscriber, save for where the Agreement is terminated by the Consumer in terms of its right to terminate as set out under clause 4.2 and/or by either of the Parties as per their respective rights to terminate in accordance with clause 11 of the Agreement.
4.1.2 On expiration of the Initial Period, the Subscriber will have the right to either confirm the termination of the Agreement by giving CloudWize written notice of its election to terminate the Agreement or agree to enter into a Renewal Addendum or complete a new Application Form, which the Renewal Addendum or Application Form will set out the Renewal Period, and the applicable terms and conditions pertaining to such renewal.
4.1.3 Should the Subscriber fail to notify CloudWize its election to terminate or renew the Agreement, and more in particular where a Consumer fails to notify CloudWize its election to either terminate or renew the Agreement as permitted under section 14 of the CPA, then the Agreement will continue on a Month to Month basis on the same terms and conditions as contained under the Agreement and subject always to any variations in accordance with the Tariff List.
4.2 Termination of a Fixed-term Agreement by a Consumer for no cause
4.2.1 By the subscriber, on expiration of the Initial period or a Renewal Period, as the case may be, by giving to CloudWize a written notice of termination not less than 30 days and not more than 90 days before the expiration of the Initial Period as the case may be;
4.2.2 By the subscriber, within a period of 7 days from the effective date, should the subscriber not find the service fit for use, subject to a written explanation accepted by the management of the CloudWize Department?
- PROVISION OF NET WORK SERVICES
This clause sets out the type and quality of services which CloudWize has agreed to provide, you, the Subscriber with, who bears the risk of any misuse of the services or SIM card, and what must happen when these services are interrupted by incidents/events that are beyond CloudWize’s control. It also covers your right to change the service, known as a Migration, and your right to request an International Roaming service, and CloudWize’s right to vary your number or the Selected Mobile Services where required by ICASA, (the Authority) which is beyond CloudWize’s control and which it is forced to comply with.
5.1 Use of the Services
5.1.1 The Subscriber agrees to only use the Selected Mobile Services and Selected Mobile Goods or Mobile Devices approved by the Authority and to comply with all relevant legislation applicable to the use of the Selected Mobile Services, Selected Mobile Goods and/or Mobile Devices, including the Act, its Regulations and any notices or directives issued by the Authority from time to time.
5.1.2 The Subscriber must ensure and warrants that the Network, the Selected Mobile Goods, the Selected Mobile Services and/or the Mobile Devices must not be used for improper, immoral or unlawful purposes.
5.2 Dropped calls and unavailability of networks and condition of the Selected Mobile Goods
5.2.1 Whilst CloudWize Mobile operates the network, the Subscriber is aware and acknowledges that CloudWize does not operate in isolation but instead relies on functionalities that are provided by a number of service providers who provide separate but interrelated and connected services, which as a whole, allows the network, the mobile services, the Mobile Goods, selected Mobile Goods, selected Mobile Services and/or Mobile Devices to function. These service providers operate as independent service providers who are not necessarily controlled and/or contracted by CloudWize.
5.2.2 Whilst CloudWize will comply with and meet the minimum service standards and use its best endeavours to ensure that the selected Mobile Services are operational at all times, CloudWize does not warrant that the selected Mobile Services will be operational on a 24 (twenty-four) hour, 365 (three hundred and sixty-five) days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on a number of independent service providers whom CloudWize has no direct control over.
5.2.3 The Subscriber acknowledges and accepts that the selected Mobile Goods are not manufactured by CloudWize, but are manufactured by third parties. In most cases, due to the provisions of the act read together with the authority code of practice and guidelines, CloudWize Mobile will not be in a position to open the selected Mobile Goods or to test or operate the selected Mobile Goods before they are handed to the Subscriber in order to ensure that they are fit for purpose and/or are intact.
5.2.4 In light of the disclosures housed under clauses 5.2.1 to 5.2.3, and subject always to the provisions housed under the minimum service standards, CloudWize expressly stipulates and the Subscriber acknowledges that CloudWize cannot warrant or guarantee that the selected Mobile Services and the selected Mobile Goods will:
188.8.131.52 At all times be free of errors or interruptions;
184.108.40.206 Always be available;
220.127.116.11 be fit for any purpose;
18.104.22.168 Not infringe on any third-party rights; and
22.214.171.124 be secure and reliable;
Save where the Selected Mobile Goods or Selected Mobile Services are found to be defective and such defect has been solely caused by CloudWize’s anticipated under sections 54(1), 55(2) and 56(3) of the CPA, where applicable.
1 54. Consumer’s rights to demand quality service
(1) When a supplier undertakes to perform any services for or on behalf of a Consumer, the Consumer has a right to —
(a) The timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;
(b) The performance of the services in a manner and quality that persons are generally entitled to expect;
(c) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and
(d) the return of any property or control over any property of the Consumer in at least as good a condition as it was when the Consumer made it available to the supplier for the purpose of performing such services, having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the Consumer before or during the performance of the services.
(2) If a supplier fails to perform a service to the standards contemplated in subsection (1), the Consumer may require the supplier to either —
(a) Remedy any defect in the quality of the services performed or goods supplied; or
(b) refund to the Consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.
5.3 Suspension or withdrawal of services by CloudWize due to reasons beyond its control
5.3.1 CloudWize advises and the Subscriber acknowledges and accepts that CloudWize may from time to time, due to reasons beyond its control, have to suspend or withdraw certain of the Mobile Services including any VAS.
5.3.2 CloudWize, however, undertakes to give reasonable notice to the Subscriber of any such withdrawal or suspension and the reasons therefore as well as any anticipated downtime where applicable.
5.3.3 Some of the reasons for a withdrawal or suspension must include, without generalizing:
126.96.36.199 Suspension or discontinuation of the services by third parties due to problems on their infrastructure;
188.8.131.52 Where certain VAS are being abused by the Subscriber or by Subscribers in general;
184.108.40.206 Where the Mobile Services are found to contain a defect, which enables a Subscriber to exploit the service to the detriment of CloudWize;
220.127.116.11 Where the Mobile Service or VAS has reached the end of its lifespan and is uneconomical to maintain or continue;
18.104.22.168 Where there has been an insignificant interest in the use of the Mobile Service or VAS; and/or
22.214.171.124 In response to an instruction from the Authority or in terms of the Act or some other law or body the Mobile Service or VAS is discontinued.
5.3.4 Where any Mobile Service or VAS is withdrawn or discontinued by CloudWize, then in such an event, and where applicable, CloudWize shall stop levying the fee or Charge in respect of the discontinued Mobile Service and the Subscriber’s Monthly Invoice and selected Tariff must be adjusted accordingly.
5.3.5 Where a Mobile Service or VAS is discontinued or suspended, as per clause 5.3, then the Subscriber accepts and agrees that it must not:
126.96.36.199 Withhold any amounts that are owed to, or which may become due and owing, to CloudWize;
188.8.131.52 Deduct any monies from the Usage Charges, save for the amounts that CloudWize may agree to as per the provisions of clause 5.3.4 above; and/or
184.108.40.206 Demand any refund, or bring any action for damages or otherwise against CloudWize, in respect of any discontinued service.
5.4 Change in Mobile Numbers due to reasons beyond CloudWize ‘control
5.4.1 Notwithstanding anything to the contrary contained in this Agreement, the Subscriber acknowledges that it does not own the Mobile Number that is allocated to the SIM card which Mobile Number is owned by the Authority and which has been allocated to CloudWize as per the provisions of the Act.
5.4.2 CloudWize will be entitled to alter any code or Mobile Number that has been allocated to the Subscriber for the Mobile Goods or Mobile Device and/or the SIM card, which change has been necessitated by the Authority who owns the number range and/or where CloudWize may have to change the aforementioned numbers if it changes its technology and this necessitates a change to the numbering scheme. Adequate notice where possible will be provided to the Subscriber of the number change, the reasons therefore and the new number.
5.5 Subscriber’s right to a Migration of Mobile Goods and Mobile Services
5.5.1 The Subscriber has the right to request an amendment and/or variation to the Mobile Goods and Mobile Services, which he or she is receiving under the Agreement, which election, where accepted by CloudWize, is known as a Migration.
5.5.2 Any request by a Subscriber to Migrate, must be subject to the following conditions:
220.127.116.11 Any Migration will be at CloudWize’s sole discretion and where such Migration has been permitted, this will be subject to the payment by the Subscriber of any applicable Migration charges, levied by CloudWize, which charges are detailed under the CloudWize Service & Charges;
18.104.22.168 Any Migration will not have the effect of creating a new agreement, save that the Parties will conclude an amendment to the Agreement, which details the revised Mobile goods and Mobile Services and the associated CloudWize Services & Charges, selected by the Subscriber; and
22.214.171.124 any Migration will take effect at the end of the calendar month following the conclusion of the required amendment to the Agreement and payment of the Migration charges, whichever comes later.
5.6 Bundled service offerings
5.6.1 Should the Selected Mobile Services and associated CloudWize Services & Charges incorporate bundled elements, as selected by the Subscriber, including, but not limited to, voice minutes/seconds, data capacity (Megabytes/Gigabytes), messaging (SMS/MMS) as well as bonus elements such as bonus voice minutes/seconds, bonus data capacity (Megabytes/Gigabytes), bonus messaging (SMS/MMS), the following conditions will apply to such bundled elements:
126.96.36.199 All elements used after the depletion of the bundled elements will be charged at the current out-of-bundle rate as set out in the CloudWize Services & Charges
5.7 SIM card and associated costs
5.7.1 The Subscriber acknowledges that whilst CloudWize will provide the Subscriber with the Selected Mobile Services and the Selected Mobile Goods it will not have any control over the use of the Selected Mobile Services and the Selected Mobile Goods. Therefore, the risk and related liability in respect of the availability and use of the Selected Mobile Services and the Selected Mobile Goods will pass to the Subscriber on delivery of the Selected Mobile Services and the Selected Mobile Goods. Accordingly, the Subscriber will be liable for all Charges in respect of the use of the Selected Mobile Goods and Selected Mobile Services, including all costs and charges associated with the SIM card used in the Selected Mobile Goods or Mobile Device, as the case may be including all Usage Charges generated by the SIM card:
188.8.131.52 irrespective of whether or not such SIM card has been used by the Subscriber or another user, with or without the permission of the Subscriber;
184.108.40.206 irrespective of the place or area where the Selected Mobile Goods or Mobile Device or SIM card, as the case may be, is used including all calls made or received, SMSs and MMSs sent, or data connections established, as the case may be using the SIM card within or to and/or from or, roaming within international destinations or networks; and
220.127.116.11 regardless of any call barring/alerting services (with or without a limit) which have been requested by the Subscriber and form part of the Selected Mobile Services and the selected Mobile Goods and associated CloudWize Services & Charges, the Subscriber acknowledging that the transfer of such risk is fair under the circumstances.
5.7.2 Whenever a Mobile Device and the associated SIM card is lost, stolen or destroyed:
18.104.22.168 the Subscriber must immediately notify CloudWize and Police officials at any Police station in writing that the Selected Mobile Goods or Mobile Device and SIM card have been lost, stolen, misplaced or destroyed as per section 41 of RICA; and
22.214.171.124 The Subscriber is liable for the cost to replace the Selected Mobile Goods, the Mobile Device and SIM card, regardless of the cause of any such loss or destruction.
5.8 International Roaming
The following conditions apply to International Roaming services provided by CloudWize:
5.8.1 International Roaming is an optional feature available on request by the Subscriber;
5.8.2 International Roaming is only available in certain countries;
5.8.3 International Roaming will be permitted at CloudWize’s sole discretion and may be subject to the payment of a deposit, which will be determined at CloudWize’s sole discretion, for the activation of the feature;
5.8.4 Bundled services as described in clause 5.6.1 cannot be utilized as deductible elements by Post-paid Accounts while utilizing services during International Roaming;
5.8.5 Notwithstanding clause 5.8.4, holders of any Hybrid and Pre-paid Accounts will be permitted to utilize accumulated airtime in the form of monetary value (Rand and cent) as deductible elements while utilizing services during International Roaming;
5.8.6 Loyalty awards and bonus minutes/SMSs and/or data are not deductible elements for use when roaming internationally; and
5.8.7 While roaming, Charges will be levied and will apply in respect of the following scenarios:
(i) Receiving calls while abroad; (ii) making calls while abroad; (iii) receiving SMSs (Short Message Services) while abroad; (iv) sending SMSs (Short Message Services) while abroad; (v) receiving MMSs (Multimedia Message Services) while abroad; (vi) sending MMSs (Multimedia Message Services) while abroad; (vii) use of data services including, without limitation, features like BlackBerry®, CSD, GPRS, EDGE, 3G, HSDPA, HSUPA or HSPA+; and (viii) Any other usage of the Network of the foreign operator, which rates can be obtained from CloudWize.
- CHARGES AND PAYMENT
This clause sets out the charges that CloudWize is entitled to levy in respect of the use of the Selected Mobile Services which you, the Subscriber, have asked CloudWize to provide you with. It is CloudWize’s right to ask for a deposit and set credit limits and how the monthly account will be paid by yourself once you receive it.
6.1 In return for the supply of and access to the Selected Mobile Services, and where applicable the Selected Mobile Goods, the Subscriber agrees and undertakes to pay to CloudWize the Charges levied by CloudWize as per the CloudWize Services & Charges, on receipt of the Monthly Invoice.
6.2 For avoidance of doubt the Monthly Invoice, which must be submitted to the Subscriber, must set out and detail the following Charges, where applicable:
6.2.1 Connection Charge: The Connection Charge, the SIM card charge, and any other introductory charges that will be charged during the first month of the Agreement and levied as a once-off initial charge in respect of the Selected Mobile Services;
6.2.2 Reconnection Charge: levied, where the Subscriber’s right to use the Selected Mobile Services and Selected Mobile Goods is suspended due to non-payment, and which fee is in respect of any restoration of the disconnected Selected Mobile Service;
6.2.3 Usage Charge: The Usage Charges as per the CloudWize Services & Charges, which Charges are due and payable monthly in advance in respect of the subscription by the Subscriber or any of his or her agents, of the Selected Mobile Services, with additional Usage Charges billable in arrears with respect to usage;
6.2.4 Maintenance Charges: levied periodically, usually on a monthly basis, or on performance, depending on the type of maintenance contract, for maintenance of the Selected Mobile Goods that CloudWize has agreed to provide to the Subscriber that are not covered by the Usage Charge, which amounts are payable in advance for the first and any subsequent maintenance period, as from the date on which the maintenance contract is signed, or as performed, as the case may be;
6.2.5 Cancellation Fee: levied to recover any costs incurred by CloudWize in respect of the Subscriber electing to terminate the Agreement before the expiration of the Initial Period or any subsequent Renewal Period as per the provisions of clause 4.2, where applicable;
6.2.6 Migration Costs: levied in respect of any agreement reached by the Parties in respect of the Migration by the Subscriber from one CloudWize Services & Charges to another, where applicable;
6.2.7 VAT: Value Added Tax levied on the Charges as required under the Value-Added Act 89 of 1991; and
6.2.8 VAS: any charges for VAS as selected under the Application Form and CloudWize Services & Charges.
6.3 Deposits, set-off and unpaid accounts
6.3.1CloudWize will be entitled to levy and collect from any Applicant the payment of a deposit, as determined by CloudWize in its sole discretion, as a precondition for providing the Selected Mobile Services and/or the Selected Mobile Goods. The deposit is to serve as security for payment of any amounts set out under the Monthly Invoice which are due to CloudWize by the Subscriber, but not paid on the Due Date.
6.3.2 Where any amounts due to CloudWize by the Subscriber, are not paid by the Due Date, CloudWize will have the right, without prejudice to any of its rights, to:
126.96.36.199 Suspend the Selected Mobile Services and/or use of the Selected Mobile Goods;
188.8.131.52 use the deposit (where one has been paid) to settle any amount due together with interest thereon at the Interest Rate levied by CloudWize the Subscriber; and
184.108.40.206 Demand from the Subscriber:
220.127.116.11.1 The payment of a deposit where none has been paid;
18.104.22.168.2 Payment of an additional or an increased deposit; and/or
22.214.171.124.3 Payment of a reconnection charge,
As determined by CloudWize’s precondition for restoring the Selected Mobile Services and/or Selected Mobile Goods.
6.4.1 CloudWize must provide the Subscriber on a monthly basis, with a computerized Monthly Invoice, which constitutes a VAT invoice and/or sales record in respect of all and any Charges due and owing in terms of the Agreement by the Subscriber to CloudWize. The invoice will, at the Subscriber’s election, be sent by e-mail or by mail and at no charge to the Subscriber.
6.4.2 Detailed billing is available to the Subscriber under the VAS offerings and will be provided on request against the payment of the applicable service charge, as set out under the CloudWize Service & Charges.
6.4.3 CloudWize reserves the right to round a fraction of 1c (one cent) off to the nearest cent.
6.5.1 The Subscriber is liable for the payment of all Charges as reflected in the Monthly Invoice.
6.5.2 All monies payable by the Subscriber to CloudWize must be paid by way of monthly debit order, timeously on the Due Date, free of deduction or set-off to CloudWize at its principal place of business or to CloudWize’s bankers, which details are stated under the Monthly Invoice. Non-receipt of an invoice by the Subscriber must not be considered as a valid reason for late or non-payment.
6.5.3 The Subscriber is liable and responsible for payment until payment has been received into CloudWize’s bank account.
6.5.4 The Subscriber is in breach of this Agreement by cancelling the debit order without the prior written consent of CloudWize.
6.5.5 Should any debit order be returned unpaid, stopped or rejected, CloudWize will have the right to suspend the Subscriber’s account until such arrears amounts have been received and paid in full.
6.6 Changes to Charges
6.6.1 CloudWize will be entitled to increase and/or reduce any of the amounts reflected under the CloudWize Services & Charges, as a result of any increase or decrease that is imposed on it in terms of the Act.
6.7 Credit Limit and extraordinary billing
6.7.1 CloudWize reserves the right to impose a monetary limit on the maximum value of Charges incurred by the Subscriber during each billing period and CloudWize will be entitled to suspend the Selected Mobile Services and Selected Mobile Goods should the Subscriber exceed the maximum amount set.
6.7.2 Where CloudWize notices that there is a significant increase in Usage Charges since the Subscriber’s last Invoice, CloudWize may, at its own discretion, issue to the Subscriber an Invoice outside the normal billing cycle, and/or demand immediate payment of any amounts due by the Subscriber in respect of such Invoice, and CloudWize will be entitled to suspend the Selected Mobile Services and use of the Selected Mobile Goods, until the Subscriber has paid the invoice in full.
- DELIVERY, RISK AND OWNERSHIP
This section sets out how the Selected Mobile Services and/or Selected Mobile Goods will be delivered to you, the Subscriber. It also details when risk and ownership of the goods and services will pass to you.
7.1 CloudWize shall deliver the Selected Mobile Services and where applicable the Selected Mobile Goods to the Subscriber, within a reasonable period and by no later than the periods set out under the Minimum Service Standards once it has processed the Application Form and agreed to provide the Subscriber with the Selected Mobile Services and where applicable, the Selected Mobile Goods.
7.2 Delivery of the Selected Mobile Goods will be made by CloudWize, at its election and as communicated to the Subscriber, at either;
7.2.1 The CloudWize offices set out on the Application Form;
7.2.2 The offices of an authorized and appointed reseller or dealer of CloudWize/or the respective branches and/or retail outlets of the said reseller or dealer; or
7.2.3 The Subscriber’s premises set out under the Application Form using the services of a CloudWize appointed courier.
7.3 The risk of loss or damage in and to the Selected Mobile Goods will pass to the Subscriber on delivery thereof to the Subscriber, including without limitation the risk of loss, theft, destruction or damage. Notwithstanding the passing of risk, ownership in the Selected Mobile Goods will pass to the Subscriber on delivery to the Subscriber, save where any Selected Mobile Goods are leased or rented from CloudWize, where ownership in such Mobile Goods will remain vested in CloudWize the duration of the lease period.
7.4 For the avoidance of doubt, and notwithstanding that the Subscriber has purchased or leased the Selected Mobile Goods from CloudWize, where as part of the Selected Mobile Goods, the Subscriber has purchased a Mobile Device at a discounted price from CloudWize, or alternatively has received Mobile Goods, free of charge from CloudWize, risk of loss, theft, destruction or damage to the Selected Mobile Goods referred to above, will pass immediately to the Subscriber upon delivery thereof to the Subscriber.
7.5 Notwithstanding that the Subscriber has purchased or leased the Selected Mobile Goods from CloudWize any Mobile Device from any third party, should the Selected Mobile Goods or Mobile Devices and/or the SIM card be damaged, lost, stolen, be or become non-operational or undergo repair, the Subscriber agrees that this Agreement is not conditional upon the availability or operation of the aforementioned Selected Mobile Goods, Mobile Devices and/or SIM card and this Agreement will continue in full force and effect and the Subscriber must continue to pay all amounts due in terms of this Agreement as per the applicable CloudWize Services & Charges as reflected in the Monthly Invoice.
- DEFECTS, LIABILITY, WARRANTIES, REPAIRS AND SUSPENSION OF THE CLOUDWIZE SERVICE
The section details what you need to do if the Selected Mobile Goods are defective and how they have to be returned to CloudWize, the circumstances when CloudWize will replace them and/or when you will receive a refund, or the Selected Mobile Goods will be sent in for repairs.
8.1 Seven (7) day out-of-box failure
8.1.1 Where the Selected Mobile Goods are returned by the Subscriber within seven (7) days after delivery, because they allegedly are defective or faulty, then CloudWize, once it has concluded that the Selected Mobile Goods are in fact faulty or defective, will replace on behalf of the manufacturer or supplier whatever the case may be, the Selected Mobile Goods with equivalent goods, provided such goods are accompanied with proof of purchase indicating that such goods have in fact been purchased from CloudWize .
8.2 Consumer’s implied warranty on Selected Mobile Goods
8.2.1 Where the Selected Mobile Goods are not replaced under a seven (7) day out-of-box failure contemplated under clause 8.1 above and in light of the disclosures housed under clause 5 and more in particular clause 5.2, CloudWize stipulates and the Subscriber acknowledges that CloudWize provides the Selected Mobile Goods as available, when available and as is. In other words, because CloudWize is not the manufacturer of the goods and because it is unable to open the sealed package and inspect the goods, CloudWize cannot warrant or guarantee that the Selected Mobile Goods will at all times be suitable for the intended purpose, are of good quality, in good working order and free of defects, free of errors or interruptions, will always be available, are fit for any purpose, do not infringe on any third party rights, or that they are secure and reliable.
8.2.2 Notwithstanding the above disclaimer, should the Selected Mobile Goods including the software and battery used in connection with the Selected Mobile Goods, fall short of the standards set out under section 55(2) of the CPA, and such defect or fault becomes apparent within six (6) months of delivery of the Selected Mobile Goods, the Consumer (whose right is not available to the Subscriber/Customer) must immediately notify CloudWize the defect and/or failure and bring the Selected Mobile Goods to a nominated CloudWize repair center together with the Consumer’s proof of purchase.
8.2.3 No return will be accepted by CloudWize unless the Consumer:
126.96.36.199 Can provide proof of purchase, which must be in the form of a sales record or Invoice; and
188.8.131.52 Returns the complete unit of the Selected Mobile Goods including packaging, accessories (including but not limited to CDs containing software, manuals, AC Adapter [charger] and any other inclusive part of the Selected Mobile Goods).
8.2.4 On return of the Selected Mobile Goods, the Consumer must:
184.108.40.206 Describe what caused the Selected Mobile Goods to malfunction or to stop functioning; and
220.127.116.11 Allow the CloudWize representative to inspect the Selected Mobile Goods for physical damage and/or signs of liquid damage.
8.2.5 In addition to clause 8.1.3, the acceptance of any returned Selected Mobile Goods by CloudWize from a Consumer is subject to the addendum following terms and conditions:
18.104.22.168 the Selected Mobile Goods will be sent to the CloudWize technical centre for further examination and analysis, which will take no longer than 3 (three) weeks or such longer period as notified by CloudWize, subject always to the provisions housed under the Minimum Service Standards;
22.214.171.124 acceptance of the Selected Mobile Goods is on behalf of the manufacturer and is not an admission of liability by CloudWize, or CloudWize acting on behalf of its suppliers or manufacturers, that the Selected Mobile Goods are defective or that it is not in accordance with the standards as set out in section 55(2) of the CPA;
126.96.36.199 CloudWize will notify the Consumer as soon as is reasonably possible and within the prescribed period set out under sub clause 8.1.5 of the results of any inspection and/or analysis and the cause of the defect and/or failure and whether the manufacturer accepts responsibility or not for such defect and/or failure.
8.2.6 Where on inspection it has been found that the Selected Mobile Goods are not in accordance with the standards set out in section 55(2) of the CPA as the case may be, and CloudWize has discussed the matter with the manufacturer or supplier who has then agreed to accept responsibility for the ascertained defect, then CloudWize, on behalf of the supplier and/or manufacturer will either, at the option of the Consumer:
188.8.131.52 Repair or replace the failed, unsafe or defective part of the Selected Mobile Goods; or
184.108.40.206 At the election of the Consumer, refund to the Consumer the price paid by the Consumer, for the returned Selected Mobile Goods, less any reasonable Usage Charges, as defined under clause 1 of the Agreement.
8.2.7 Where any returned Selected Mobile Goods are found to fall outside of the minimum warranty period set out under section 55(2) of the CPA, or where such warranty set out under section 55(2) of the CPA is not applicable, then the supplier, manufacturer and in particular CloudWize will have no further responsibility or liability in relation to the returned Selected Mobile Goods, save that it has the right to offer to repair, at the Consumer’s cost, the Selected Mobile Goods and subject further to the following conditions:
220.127.116.11 Any acceptance of the Selected Mobile Goods for repairs and maintenance will be done on or under the condition that CloudWize is acting as an agent on behalf of the manufacturer or local supplier of the Selected Mobile Goods; and
18.104.22.168 CloudWize will not be liable for any loss, damage, destruction, theft or negligent workmanship howsoever, or by whomsoever, caused to the Selected Mobile Goods whilst under the manufacturer or local supplier’s control who is performing the repair or maintenance work; and
22.214.171.124 the costs of any such maintenance or repair work, which will be quoted for before commencement of the service and/or repair work, will once accepted by the Consumer/ Subscriber, be for the Subscriber/Consumer’s account.
- LIMITED LIABILITY AND INDEMNITY
This section sets out CloudWize’s liability in respect of the Selected Mobile Services and Selected Mobile Goods, which you, the Subscriber, should take careful note of.
9.1 Subject to the provisions of clause 9.2 below, CloudWize shall not be liable to the Subscriber or any other person whomsoever, under any circumstances whatsoever, or incur any liability for any loss or damages to the Subscriber or any other person or user of the Mobile Services or Mobile Goods, which arises or occurs as a result of the use of, or arising out of the provision of, the Mobile Goods or the Mobile Services and whether such claim, action or damage is direct or indirect, consequential or contingent incurred by the Subscriber, user or any other person who may be using or holding the Mobile Goods or Mobile Services, howsoever arising, and the Subscriber indemnifies CloudWize against any claim or action, as described above, which may be brought by any person in this regard.
9.2 CloudWize assumes no responsibility for the integrity, correctness, retention or content of information transported via the network and its Dealers;
9.3 The limitation of liability set out above is in addition to any limitation of liability set out elsewhere under this agreement
- SUBSCRIBER ASSISTANCE, COMPLAINTS AND DISPUTES
This section sets out how you the Subscriber can contact CloudWize for assistance and how you must lodge a complaint, should one arise.
10.1 CloudWize provides customer care to all Subscribers at all times, on a 24/7/365 basis, excluding times when it is unable to assist due to reasons beyond its reasonable control.
10.2 The Subscriber must, once it experiences any trouble with any of the Selected Mobile Goods and/or Selected Mobile Services bring the suspected problem to CloudWize ‘attention by contacting the relevant customer care office at the number listed on the CloudWize Monthly Invoice and website. The suspected problem will then be logged and detailed, and the Subscriber will be provided with a reference number.
10.3 CloudWize will use its best endeavours to attend to the complaint as soon as it is possible, which will depend on the complexity and nature of the suspected problem, as logged.
- BREACH AND TERMINATION
This section sets out what will happen when one of the Parties to the Agreement fails to comply with the terms and conditions, which is known as a “breach of the agreement”, which will allow the party who has not breached the agreement to cancel the Agreement and claim damages.
11.1 Should the Subscriber breach any term of this Agreement including any failure to pay CloudWize any monies on the Due Date, then CloudWize must give the Subscriber 20 (twenty) Business Days’ notice to rectify the breach. Should the Subscriber neglect or fail to rectify the breach within the 20 (twenty) Business Days’ notice period, then CloudWize will have the right to cancel the Agreement, without prejudice (meaning to preserve your respective rights and positions) to CloudWize‘s rights to claim all and any damages which CloudWize has incurred in consequence of such breach.
11.2 Should CloudWize breach any material term of this Agreement, then the Subscriber will have the right to provide CloudWize with a letter requiring CloudWize rectify the breach? Should CloudWize neglect or fail to rectify such breach within the 20 (twenty) Business Days’ notice period, then the Subscriber may cancel the Agreement, which will without prejudice (meaning to preserve your respective rights and positions) to the Subscriber’s rights to claim any damages which it may have incurred in consequence of CloudWize’s breach.
11.3 Without contradicting the provisions of clause 10.5 above, both Parties agree to the jurisdiction of the Magistrate’s Court in relation to any court proceedings that may be brought and arise in consequence of the Agreement.
11.4 Should the Subscriber be sequestrated, liquidated or placed under judicial management, CloudWize will be entitled to immediately cancel this Agreement upon notice to the subscriber.
11.5 The Subscriber agrees that CloudWize may register the details of the manner in which payments have been conducted by the Subscriber and/or its agent, with any registered credit bureau.
11.6 CloudWize will be liable for all costs on an attorney and own client scale that the Consumer incurs as a result of CloudWize’s breach of any of the terms and conditions of this Agreement.
11.7 The Subscriber shall be liable for all costs, including legal costs on an attorney and own client scale, and tracing cost and collection commission incurred by CloudWize in respect of the enforcement of any obligations of the Customer in terms of this Agreement and in the case of a Consumer, subject to the provisions housed under Regulation 44(3) of the CPA.
- UNDERTAKING AS A SURETY AND CO -PRINCIPAL DEBTOR
This section states that where the Subscriber is a company or legal entity, that in such case, the person who signs the Agreement on behalf of the legal entity must be held responsible for the payment of all amounts due to CloudWize, should the Subscriber fail to pay these amounts. This is known as a surety undertaking.
If the Subscriber is a company, close corporation, trust or a division or any other entity with juristic personality, then the signatory who signs on behalf of the Subscriber warrants that he or she is duly authorized to enter into this Agreement on behalf of the Subscriber and, if applicable, to sign the debit authorization on the Subscriber’s bank account. By his or her signature, the signatory also agrees to bind himself or herself as co-principal debtor for the Subscriber in favour of CloudWize for the fulfilment of all of the Subscriber’s obligations to CloudWize arising out of this Agreement including the payment of all charges, fees, and penalties and liquidated damages.
The details below are all general in content and should be read and considered carefully.
14.1 Consumer status
In consequence of the released CPA, certain rights have been granted to a Subscriber who is a Consumer, as defined under the CPA. CloudWize reserves the right to withhold any of these rights and/or resultant benefits until such time as the Subscriber, in the case where it claims it is a Consumer, is able to prove to CloudWize, which proof may be in the form of a set of financial statements or an identity document, that it is a Consumer, and/or in the case of a right which it wants to exercise under section 14 of the CPA, that it is an Individual Consumer.
Where the Subscriber is unable to show that it is a Consumer or Individual Consumer, in such an event CloudWize reserves the right to reverse or call for restitution (a refund) of any rights or benefits permitted under the CPA, which the Subscriber has unlawfully taken advantage of and which are not applicable to the Subscriber.
14.2 Subscriber details and changes thereto
The Subscriber agrees to supply CloudWize with such information, documentation and signatures that CloudWize may reasonably require at the time that this Agreement is concluded, in order to give effect to the payment arrangements of this Agreement. Any subsequent changes that affect the information supplied to CloudWize such as a bank account, legal service address referred to under clause 12 and credit card details must be brought by the Subscriber in writing to the immediate attention of CloudWize.
CloudWize will be 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, but it must give the Subscriber reasonable notice of this fact. The Subscriber is not allowed to cede, assign, encumber or delegate his or her obligations arising out of this Agreement without receiving the prior written consent of CloudWize, which may not be unreasonably withheld.
14.4 Variation and amendment
Subject to, and save where, the right to amend the Agreement has been specifically mentioned under the Agreement, neither party may vary the terms of the Agreement unless the other party agrees to such variation and the variation is reduced to writing and signed by both Parties.
14.5 Whole Agreement
This document, read with the relevant Application Form (which is deemed incorporated herein by reference), contains the sole and entire record of the Agreement between the Parties. No party is bound by any express or implied term, representation, warranty, promise or the like not recorded in this Agreement, save where it is created by operation of law and no indulgence, leniency or extension of time that either party (the grantor) may grant or show to the other, or any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
Where CloudWize is represented by any duly authorised representative, CloudWize’s authority needs not be proved.
14.7 Duplicate and scanned version in place of original
The Subscriber agrees that this Agreement may be scanned and the paper version destroyed, and agrees to the scanned version and waives his or her right to dispute the authenticity of the scanned version.
14.8 Events outside control of CloudWize
Except as specifically provided under this Agreement, CloudWize will not be liable to the Subscriber for any breach of these conditions or failure to perform any obligation as a result of any force majeure (event beyond its control) event, including but not limited to technical problems relating to the Network, acts of God, Government controls, restrictions or prohibitions or any other Government act or omission, whether local or national, any act or default of any supplier, agent or subcontractor, industrial disputes, strikes or work stoppages of any kind or any other similar or dissimilar cause.
14.9 Intellectual property rights
Any intellectual property rights vesting in CloudWize, whether by statute or common law, will remain vested in CloudWize the Subscriber agrees not to do anything or allow anything to be done that may infringe CloudWize ‘rights and the Subscriber hereby indemnifies CloudWize against any claims, actions and proceeding that may arise as a result of the Subscriber infringing or violating the CloudWize intellectual property rights.