Terms & Conditions – South Africa

1. INTERPRETATION AND PRELIMINARY 

1.1 The following terms shall have the meanings assigned to them  hereunder and cognate expressions shall have corresponding  meanings, namely – 

1.1.1 “the/this Agreement” 

means the agreement contained in this document together with the Subscriber Application Form and all schedules and addenda to this agreement from time to time; 

1.1.2 “Authority” 

means the Independent Communications Authority of South Africa or its successor in title; 

1.1.3 “Call Charge” 

means the charge for each call registered and recorded on  the System as having emanated from the Equipment  

calculated at the cost per unit of time utilised by the  

Subscriber, as set out in the Subscriber Application Form  and the applicable international organisation rate in respect  of international calls. For the avoidance of doubt, Call  

Charges includes charges for unauthorised or fraudulent  calls.  

1.1.4 “Charges” 

means Connection Charges, Monthly Access Charges, Call  Charges and all other charges payable for the provision of  the Services or Interim Services; 

1.1.5 “Commencement Date” 

means the date of activation of the Services; 

1.1.6 “Connection Charge” 

means the charge payable by the Subscriber to UBS for 

connecting the Equipment to the System, or the charge for registering the Subscriber for use of the Services or Interim Services; 

1.1.7 “Deposit” 

means the deposit payable by the Subscriber to UBS as set out in the Subscriber Application Form; 

1.1.8 “UBS” 

means UBS Telecoms (Pty) Ltd, registration number  

2010/013806/07; 

1.1.9 “Equipment” 

means electronic communications connections or any other facility or equipment that provides the Subscriber with 

access to the Services or Interim Services and includes the HPBX switch; 

1.1.10 “Initial Period” 

means the initial period of the Services set out in the 

Subscriber Application Form or, in relation to any additional service, upgrade or relocation requested by the Subscriber after the commencement Date, the Initial Period in respect thereof referred to in clause 2.3, provided that, unless 

otherwise specified in the Subscriber Application Form, the Initial Period is a period of 24 months calculated from the Commencement Date or the Deemed Commencement  

Date; 

1.1.11 “Interim Services” 

means pending activation of the Services, the temporary provision of electronic communication services or electronic communication network services through a temporary 

solution as set out in the Subscriber Application Form; 

1.1.12 “Interim Services Commencement Date” 

means the date of activation of the Interim Services; 

1.1.13 “Interim Services Period” 

means the period from the Interim Services  

Commencement date until the Commencement Date; 

1.1.14 “Monthly Access Charge” 

means the monthly charge payable by the Subscriber to 

UBS to provide the Subscriber with access to the Services  or Interim Services; 

1.1.15 “Payment Terms” 

means either Pre-Paid or Post-Paid, as set out in the 

Subscriber Application Form; 

1.1.16 “Post-paid” 

means payment is made in arrears; 

1.1.17 “Pre-paid”  

means payment is made in advance; 

1.1.18 “RICA”  

means the Regulation of Interception of Communications 

and Provision of Communication-related Information Act 70 of 2002; 

1.1.19 “Services” 

means the provision of electronic communication services  or electronic communication network services as set out in  the Subscriber Application Form by means of the final  

solution, together with such additional and ancillary  

services as may be made available by UBS to the  

Subscriber from time to time; 

1.1.20 “Signature Date” 

means the date of signature of this Agreement by the Party signing last in time; 

1.1.21 “Subscriber” 

means the subscriber whose particulars are set out in the Subscriber Application Form; 

1.1.22 “Subscriber Application Form” 

means the Subscriber Application Form which forms part of this Agreement; 

1.1.23 “Subscriber Premises” 

will mean the premises of the Subscriber where the 

Equipment must be installed where applicable; and 

1.1.24 “System” 

means the electronic communications system operated by UBS through which the Services or Interim Services are 

made available by UBS to the Subscriber. 

1.2 When any number of days is prescribed in this Agreement, same  shall be reckoned exclusively of the first and inclusively of the last  day unless the last day falls on a Saturday, Sunday or public  holiday, in which case the last day shall be the next succeeding day  which is not a Saturday, Sunday or public holiday; 

1.3 Expressions defined in this Agreement shall bear the same  meanings in schedules, addenda or annexures to this Agreement  which do not themselves contain their own definitions. 

1.4 The expiration or termination of this Agreement shall not affect  such of the provisions of this Agreement as expressly provide that  they will operate after any such expiration or termination or which  of necessity must continue to have effect after such expiration or  termination, notwithstanding that the clauses themselves do not  expressly provide for this. 

1.5 The rule of construction that this Agreement shall be interpreted  against the Party responsible for the drafting or preparation of this  Agreement, shall not apply. 

1.6 The headings of the clauses in this Agreement are for the purpose  of convenience and reference only and shall not be used in the  interpretation of, nor modify nor amplify the terms of this  Agreement nor any clause hereof. 

1.7 An expression which denotes: 

1.7.1 any gender includes the other genders; 

1.7.2 a natural person includes a juristic person and vice  versa; 

1.7.3 the singular includes the plural and vice versa; 

1.7.4 a Party includes a reference to that Party’s  

successors in title and assigns allowed at law. 

 

 

2. DURATION 

2.1 In the event that the Subscriber subscribes for Interim Services,  this Agreement shall commence on the Signature Date, and, unless  terminated in accordance with any other provision of this  Agreement, shall endure:

 

2.1.1 from the Interim Services Period until the  

Commencement Date; and 

2.1.2 after the Commencement Date this agreement shall  endure for the Initial Period and thereafter  

indefinitely until terminated by either Party by giving  the other Party 90 days’ written notice of  

termination. 

2.2 In the event that the Subscriber does not subscribe for Interim  Services this Agreement shall commence on the Signature Date,  and, unless terminated in accordance with any other provision of  this Agreement, shall endure: 

2.2.1 from the Signature Date until the Commencement  Date; and 

2.2.2 after the Commencement Date this agreement shall  endure for the Initial Period and thereafter  

indefinitely until terminated by either Party by giving  the other Party 90 days’ written notice of  

termination. 

2.3 Subject to any written notice by UBS to the contrary, each  additional service, upgrade or relocation (if any) provisioned to the  Subscriber after the Commencement Date shall be subject to the  provisions of this Agreement, save that in respect of each such service, the Initial Period shall commence on the date of activation  of such service (the “Deemed Commencement Date”) and subject  to any other lawful termination thereof, this Agreement shall  remain binding on the Parties in respect of such service until terminated by either Party in terms of clause 2.1 or 2.2, after the  expiry of the Initial Period as calculated from the Deemed  Commencement Date. 

 

 

3. PROVISION OF THE SERVICES OR INTERIM  SERVICES 

3.1 UBS undertakes to provide the Services or Interim Services to the  Subscriber upon the terms and conditions set out in this  

Agreement. The Services or Interim Services may include the  installation and activation of one or more service (as specified in  the Subscriber Application Form or in any subsequent addenda,  schedules or purchase orders) on behalf of the Subscriber and the  connection of the Equipment to the System, and/or may include  solely connection of the Equipment to the System. 

3.2 The Subscriber shall be responsible for obtaining all necessary  approvals and consents that may be necessary for provisioning of  the Services or Interim Services at the Subscriber Premises. 

3.3 The Subscriber acknowledges and accepts that the  availability and/or quality of the Services or Interim  Services may be affected by factors including, but not limited to, the System, the Equipment and accessories used  with the Equipment, atmospheric conditions, radio frequency  disturbances and other factors beyond the control of UBS. 

3.4 Whilst UBS will take all reasonable steps to ensure that the  Services or Interim Services are provided in accordance with  this Agreement, UBS cannot and does not guarantee or  undertake that the provision of the Services or Interim  Services will be provided at all times and accordingly, UBS  will, to the fullest extent permissible in law, not be liable for  any direct or indirect loss or damage of any nature  

whatsoever or howsoever arising that may be sustained by  the Subscriber as a result of any faults or interruptions in  the provision of the Services or Interim Services. 

3.5 The Services or Interim Services are to be provided on the basis  that the Subscriber – 

3.5.1 will use the Services or Interim Services in  

accordance with the terms and conditions of this  

Agreement; 

3.5.2 will use the Services or Interim Services in  

accordance with UBS’s Acceptable Use Policies as  

may be applicable from time to time; 

3.5.3 will not utilise the Services or Interim Services, or  allow others to do so, for any improper, immoral, or  unlawful purpose; 

3.5.4 will only use the Equipment in accordance with the  manufacturer’s instructions and for the purposes and  in the manner for which it is intended; 

3.5.5 will comply with all relevant legislation and  

regulations and all instructions issued by any  

governmental authority or by UBS regarding the use  of the Services or Interim Services; and 

3.5.6 will not act or omit to act, or allow others to do so, in  any way likely to damage, disrupt or interfere with  

the System or to injure or damage any person or  

property or to cause the quality of the Services or  

Interim Services to be impaired or interrupted in any  manner whatsoever. 

3.6 UBS shall have the right to remove any content hosted by the  Subscriber on the UBS Network, in the event that UBS considers  such content illegal, or in respect of which UBS was served with  takedown notice. 

3.7 The Subscriber agrees to defend, indemnify and hold UBS,  its directors, employees, agents and other members of its  group of companies, as that term is defined in the  

Companies Act 71 of 2008, (each an “indemnified Party”)  harmless from any use of the Services or Interim Services by  the Subscriber, that is not in accordance with the terms and conditions of this Agreement. 

3.8 The Subscriber shall remain fully liable for payment of all Charges  for Services or Interim Services to UBS incurred through the use of  the Services or Interim Services regardless of whether such use is  by the Subscriber or whether such use is with or without the  authority, knowledge or consent of the Subscriber. 

3.9 The Subscriber acknowledges that UBS will not be required to  commence the provision of the Services or Interim Services until  UBS is satisfied that the Subscriber has met the requirements set  forth under RICA. The Subscriber agrees that it will provide UBS with the necessary documentation and information required by UBS  to verify that the Subscriber has complied with RICA. 

 

 

4. CHARGES 

4.1 By its signature to the Subscriber Application Form, the Subscriber  acknowledges that it is aware of and has agreed to be bound by all  the terms of this Agreement and to effect payment of the Charges  relating to the Services or Interim Services selected by the  Subscriber in the Subscriber Application Form, which Charges shall  be payable to UBS as follows – 

4.1.1 if the Subscriber’s Payment Terms are Post-paid: 

4.1.1.1 the Connection Charge, Monthly Access Charge  and all other charges excluding Call Charges and  

usage based charges referred to in 4.1.1.2, shall  

be paid in advance within 14 days from the date  

of UBS’s invoice; 

4.1.1.2 Call Charges and all other usage based charges  shall be paid, within 14 days after the date of  

UBS’s invoice in respect thereof. 

4.1.2 If the Subscriber’s Payment Terms are Pre-paid, the  Connection Charge, Monthly Access Charge, Call  

Charges and all other charges shall be paid in  

advance. 

4.2 The timing, format and details of invoices shall be in the sole  discretion of UBS. 

4.3 All Charges, unless otherwise stated in the Schedule of Charges,  are exclusive of value added tax, which shall be borne and paid for  by the Subscriber together with the Charges in question. 

4.4 The Monthly Access Charge is a charge for permitting the  Subscriber continued access to the Services or Interim Services and  the Subscriber will be liable for each and every Monthly Access  Charge irrespective of the use made the Services or Interim  Services. 

4.5 Any call and/or connection registered and recorded on the System  as having emanated from the Equipment shall, until the contrary is  proved, be deemed to have been made by or by means of, the  Equipment. 

4.6 For the purpose of calculating Call Charges payable by the  Subscriber, the duration of each call and/or connection as recorded  and registered on the applicable metering system used by UBS  shall be final and binding on the Subscriber. 

4.7 UBS may at any time by written notice require the Subscriber to  furnish such security as UBS may deem appropriate for the  payment of the Charges, and any failure by the Subscriber to  furnish such security to UBS within 14 days after the date of such  notice shall constitute a material breach of this Agreement by the  Subscriber. 

4.8 UBS shall be entitled to adjust the Charges on an annual basis. The  adjustment shall be in line with any change in the Consumer Price  Index (“CPI for services”) as published by Statistics South Africa in  publication P0141 or its replacement from time to time.

4.9 United Telecoms shall be entitled to charge a deposit fee prior to  reactivating an account if a debit order is returned and the  Subscriber’s account has been suspended as a result. This deposit  will be determined at United Telecoms’ discretion and must be paid  in full before any services are reinstated or the account is  reactivated. 

 

 

5. PAYMENT 

5.1 All Charges shall be paid by means of direct debit order, free of  exchange and bank charges. The Subscriber shall not for any  reason whatsoever withhold payment of any Charges and the  Subscriber accepts responsibility to ensure that the banking details provided to UBS are at all times current and correct. 

5.2 Should any payment not be made on due date, UBS shall be  entitled, without detracting from its other rights, to charge the  Subscriber interest on such arrear payments from due date of such  payments to date of actual payment thereof, at a rate equal to 4% above the annual prime bank overdraft rate charged by Nedbank  Limited, from time to time. 

5.3 All payments made by the Subscriber shall be appropriated firstly  towards the payment of legal costs incurred in the recovery thereof,  thereafter towards the payment of interest accruing thereon and  lastly in reduction of the capital sum due. 

5.4 UBS will submit statements to the Subscriber monthly. The  Subscriber accepts responsibility to ensure that the statement is  received and checked. 

 

 

6. EQUIPMENT 

6.1 Ownership in the Equipment will remain vested in UBS. 

6.2 All risk in and to the Equipment shall pass to the Subscriber  upon delivery thereof to the Subscriber and the Subscriber  shall take reasonable steps to avoid damage to Equipment  and the Subscriber Premises where the Equipment is installed. 

6.3 The Equipment provided to the Subscriber, including the software  incorporated in the Equipment and all intellectual property rights in  and to the Equipment, will not become the property of the  Subscriber and the Equipment will be returned to UBS on 

termination of this Agreement for any reason whatsoever, unless  the Subscriber has purchased the Equipment from UBS. 

6.4 The Subscriber will not be entitled to give up possession of the  Equipment, in whole or in part to any third party and will not be  entitled to remove and re-install the Equipment at a different  location. 

6.5 The Subscriber shall notify UBS immediately in the event of the  Equipment being stolen or damaged. 

6.6 UBS will instruct contractors to install the Equipment at the  Subscriber’s premises and further instruct contractors to maintain  the Equipment for the duration of this Agreement. UBS’s  

representatives, employees, agents and contractors may at all reasonable times, without giving rise to any claim or right of action  on the part of the Subscriber, enter the Subscriber’s premises to  inspect the Equipment, carry out necessary repairs, replacement of  Equipment, or to perform any other lawful function in the bona fide  interest of UBS in respect of the Equipment. 

6.7 The Subscriber acknowledges and agrees that the Equipment is  movable property and that it will not be installed with the intention  that it remains or accedes to whatever housing it may be installed  with or to. 

6.8 The Subscriber may not make any alteration or modification to the  Equipment. 

6.9 The Subscriber must ensure that all electronic equipment that is  not provided by UBS and that is installed at the Subscriber  Premises has been type approved by the Authority (to the extent  necessary). 

6.10 The Subscriber must ensure that any equipment installed at the  Subscriber Premises, which has not been leased, purchased from  and/or installed by UBS, does not interfere with or degrade the  System. 

6.11 The Subscriber will advise the landlord of the Subscriber’s premises  that ownership of the Equipment vests in UBS. The Subscriber will  advise UBS of the full name and address of its landlord. 

6.12 Upon cancellation or termination of this Agreement, the Subscriber  undertakes to return any router(s) and/or equipment provided by  

UBS within 10 days from date of termination. Should the Subscriber  fail to do so, the Subscriber will be liable for the total value of the  router and/or equipment. UBS will be entitled to charge the  Subscriber of such value and collect the funds via debit order or  electronic transfer. 

 

 

7. UNAUTHORISED TRAFFIC 

7.1 The Subscriber is responsible for the security of its network  and the Equipment and for taking the necessary steps to  prevent unauthorized or fraudulent use of the Services or  Interim Services perpetrated using the Subscriber’s  equipment and network or the Equipment including, but not  limited to, keeping all username and passwords used to  access the System secret. 

7.2 UBS will use its best commercial endeavours to monitor  traffic and will suspend the Services or Interim Services if it  appears, in the reasonable opinion of UBS, that the Services  or Interim Services are being used improperly. 

7.3 Notwithstanding the provisions of clause 7.2, UBS disclaims  all liability and the Subscriber indemnifies UBS against all  liability for unauthorised or fraudulent use of the Services or  Interim Services that takes place outside of the System. 

8. INSURANCE 

8.1 The Subscriber shall at its own costs comprehensively insure  all Equipment installed at the Subscriber Premises against  all insurable risks (and at all times maintain such insurance  policies). 

8.2 Should the Subscriber on request from UBS fail to provide  proof of such insurance and payment of the premiums  thereof, UBS shall be entitled to effect the insurance and  recover all premiums from the Subscriber. 

 

 

9. EARLY TERMINATION 

9.1 Without prejudice to any rights that UBS may have in terms of this  Agreement, in the event that the Subscriber terminates this  Agreement for any reason, other than the reasons for termination  contemplated in clauses 2.1 and 10.2, or breach by UBS, the Subscriber shall pay to UBS any arrear Call Charges, Monthly  Access Charges and other charges that may be in arrears at that  time. In addition the Subscriber shall be liable for and shall pay the  Monthly Access Charges applicable for the remainder of the Initial  Period if the Agreement is terminated by the Subscriber during the  Initial Period. Such Monthly Access Charges shall be paid to UBS on  demand. 

9.2 Should the Subscriber terminate this Agreement after the Signature  date, but before the Commencement Date, the Subscriber shall be  liable for the payment of the Monthly Access Charges for the Initial  Period and the Connection Charge, the Monthly Access Charges and  Call Charges for the Interim Services Period (if applicable). 

 

 

10. SUSPENSION OF SERVICES OR INTERIM SERVICES 

10.1 UBS may at any time suspend the Services or Interim  Services, in whole or in part and without incurring any  liability whatsoever – 

10.1.1 should UBS be unable to provide the Services or  Interim Services, in whole or in part, whether due  

to vis major or otherwise through no fault of its  

own; or 

10.1.2 should UBS suspect that the Services or Interim  Services are being used improperly under  

circumstances as detailed in clause 7.2; or 

10.1.3 should an agreement in terms of which UBS derives  its rights to provide the Services or Interim  

Services, be suspended, cancelled or terminated; or 

10.1.4 should such suspension of the Services or Interim  Services be necessary in order to facilitate any  

repairs, modification, maintenance, improvements  

or remedial works in respect of the System; or 

10.1.5 should the Subscriber not comply with UBS’s  acceptable or fair use policies; or 

10.1.6 should the Subscriber fail to comply with any term  of this Agreement;

10.2 UBS shall have the right to suspend Services in the event that the  Subscriber does not comply with UBS’s acceptable or fair use  policies. 

10.3 Should the Services or Interim Services be suspended pursuant to  10.1.1,10.1.3 or 10.1.4, UBS shall use its reasonable endeavours to  provide an alternative service to the Subscriber, whether through  another electronic communications network operator or service  provider or otherwise, all in UBS’s discretion. Should UBS fail to  provide an alternative service within 14 days after the  

commencement of the suspension, either Party shall be entitled by  written notice to the other, to terminate this Agreement with immediate effect. In such event, the Subscriber shall remain liable  for all Charges accrued up to date of such termination, which  Charges shall be payable on demand. 

10.4 Should the Services or Interim Services be suspended by reason of  default of the Subscriber, the Subscriber shall be liable to UBS: 

10.4.1 for its then applicable Connection Charges, payable  on cessation of the suspension; and 

10.4.2 for the duration of the suspension, all Call Charges,  Monthly Access Charges and any other charges  

which would have been payable to UBS,  

notwithstanding the suspension of the Services or  

Interim Services. 

 

 

11. BREACH 

11.1 Should the Subscriber breach any term of this Agreement and fail  to remedy such breach notwithstanding 10 (ten) days’ notice of  breach, or should the Subscriber be provisionally or finally  liquidated or declared insolvent or die, or attempt to compromise with any of its creditors, or allow any judgement against it to  remain unsatisfied for a period of 14 (fourteen) days after the date  of such judgement, UBS shall be entitled, but not obliged, and  without detracting from any other rights that it may have in law or in terms of this Agreement to – 

11.1.1 terminate this Agreement with or without claiming  any damages it may have suffered; or 

11.1.2 terminate this Agreement and recover from the  Subscriber as liquidated damages, the aggregate of  the Monthly Access Charges for the unexpired  

portion (if any) of the Initial Period plus all amounts payable under any Agreement between UBS and a  

third party provider in order to offer the Services or  Interim Services in terms of this Agreement; or 

11.1.3 without terminating this Agreement, claim  

immediate payment of all Call Charges, Connection  

Charges, Monthly Access Charges and any other  

charges which are due and/or which would have  

fallen due for the remainder of the Initial Period in  

terms of this agreement, all of which shall be  

immediately due and payable. UBS will, pending 

payment of these amounts be entitled to suspend  

the Services or Interim Services, in whole or in part  to the Subscriber and without notice be possessed  

of the Equipment and to retain possession thereof 

until all amounts due to UBS has been paid in full; or 

11.1.4 claim specific performance with our without  claiming damages. 

11.2 In the event of termination of this Agreement for any reason  whatsoever UBS shall be entitled to disconnect and retake  possession of the Equipment. 

 

 

12. DATA PROTECTION 

12.1 In performing its obligations under this Agreement, UBS shall: – 

12.1.1 Comply with the provisions of prevailing privacy and  data protection legislation governing the collection,  use and processing of personal information as  

defined in the relevant legislation (hereinafter  

“Personal Information”); 

12.1.2 Not process Personal Information for any purpose  other than to perform its obligations under this  

Agreement; 

12.1.3 Only act on the instructions of the Subscriber in  collecting, processing and utilising the Personal  

Information (and for avoidance of doubt, this 

Agreement shall constitute such instructions); 

12.1.4 Not disclose or otherwise make available the  Personal Information to any third party other than  

authorised staff or sub-contractors who require  

access to such Personal Information strictly on a  

need to know basis, in order for UBS to carry out its  obligations pursuant to this Agreement and ensure  

that such staff and any other persons that have 

access to the Personal Information are bound by  

appropriate and legally binding confidentiality and  

non-use obligations in relation to the Personal  

Information; 

12.1.5 Take appropriate, reasonable technical and  organisational measures to ensure that the integrity  and confidentiality of the Personal Information in its  possession or under its control is secure and that  

such Personal Information is protected against  

accidental loss, destruction, damage, unlawful  

access or processing; 

12.1.6 Immediately notify the Subscriber in case of  possible infringement of the applicable data  

protection legislation, the terms of this clause or 

other irregularities by UBS, its staff or any other  

party acting on behalf of UBS in relation to the  

Subscriber’s Personal Information; and 

12.1.7 At the Subscriber’s option, return or destroy the  Personal Information once it is no longer required  

for the purposes of performing obligations under  

this Agreement or any directly related purpose. 

12.1.8 Protection of Personal Information Act  (POPIA) Consent Clause: 

In accordance with the Protection of Personal Information  Act 4 of 2013 (“POPIA”), United Telecoms (Pty) Ltd is  

required to obtain consent from the Applicant to process  

the Applicant’s personal information as defined under  

POPIA (“Personal Information”). By agreeing to these  

terms, the Applicant expressly consents to United  

Telecoms (Pty) Ltd conducting any necessary inquiries  

with third parties, including but not limited to credit  

bureaus, to confirm and verify any Personal Information  

provided by the Applicant. 

 

 

13. VIS MAJOR 

13.1 Failure by a Party to comply with any of the terms and conditions of  the Agreement if occasioned by or resulting from an act of nature  or public enemy, lightning, fire, explosion, earthquake, perils of the  sea, flood, storm or other adverse weather conditions, war declared  or undeclared, civil war, revolution, civil commotion, riot, strikes,  blockade, embargo, sanctions, epidemics, act of any government or  other authority, compliance with government orders, demands or  regulations, as well as shortages, interruptions, fluctuations or the  unavailability of electrical power, water supply or means of  communication or any circumstances of like or different nature beyond the reasonable control of the Party so failing (“vis major”),  will not be deemed to be a breach of this Agreement, nor will it  subject either Party to any liability to the other. 

13.2 Should a Party’s performance of an obligation become temporarily  impossible owing to vis major, that Party shall: 

13.2.1 as soon as reasonably possible after the vis major  sets in notify the other Party in writing of the  

incidence of vis major; 

13.2.2 be released from performance or observance of the  affected obligation for so long as the vis major  

prevails; 

13.2.3 use commercially reasonable efforts to recommence  performance or observance of the affected  

obligation to the extent possible; and 

13.2.4 co-operate with the other Party in implementing  such contingency measures as the other Party may  

reasonably require. 

13.3 Should the circumstances of vis major continue for longer than 30  (thirty) days, either Party shall be entitled to terminate the  Agreement forthwith by written notice to the other Party. 

14. INTELECTUAL PROPERTY RIGHTS 

Nothing contained in this Agreement shall be construed to confer on  either Party any rights or licenses to the intellectual property of the  other Party.

 

 

15. CERTIFICATE 

A certificate signed by any manager of UBS (whose appointment  and authority it shall not be necessary to prove) as to the existence  of any facts and, in particular, without limiting the generality of the  aforegoing, as to the amount of any indebtedness of the Subscriber  to UBS in terms of and pursuant to this Agreement, shall constitute  prima facie proof of such facts for any purpose and, more  particularly, for the purposes of obtaining provisional sentence,  default judgment or summary judgment or their equivalent in any  court of competent jurisdiction. 

16. LIMITATION OF LIABILITY AND INDEMNITY 

16.1 UBS, its directors, employees and sub-contractors shall not  be liable whether in contract, delict or under any other  cause of action for: 

16.1.1 loss of profit, loss of use, interruption or reduction  of operation, loss of data (including the recovery  

thereof), loss of production, loss of contracts or for  any indirect or consequential damage; 

16.1.2 death, injury, or damage to property unless caused  by UBS’s gross negligence; 

16.1.3 any damage arising out of the infringement of any  intellectual property rights; arising out of or in  

connection with this Agreement. 

16.2 UBS’s liability for any act or omission, whether in contract,  delict or under any other cause of action, will in no single  event or in aggregate exceed a maximum amount of R500  000-00 (five hundred thousand Rand). 

16.3 UBS may, without the consent of the Subscriber, disclose  any information of the Subscriber to any third party as it  may be required to do in terms of any legislation. 

 

 

17. DISPUTE RESOLUTION, GOVERNING LAW 

17.1 Subject to UBS’s right in each instance to elect to institute action  for payment of the prices and any other amounts due under the  Agreement in any court of competent jurisdiction, in the event of  any disagreement or claim (“dispute”) arising out of or relating to  this Agreement, the senior executives of the Parties or their  delegates designated in writing shall endeavour to settle the  dispute through bona fide negotiations within 14 (fourteen) days of  the dispute being referred to them by written notice from either  Party. 

17.2 Should the Parties be unable to settle the dispute by the means and  within the timeframe stated above, either Party may refer the  dispute for final decision by arbitration in accordance with the rules  for commercial arbitrations (“rules”) of the Arbitration Foundation  of Southern Africa (“AFSA”), by one or more arbitrator/s appointed  in accordance with the rules. 

17.3 Unless otherwise agreed in writing the arbitration shall be held in  Sandton in the Republic of South Africa and conducted in the  English language. Only the Parties and their legal representatives or  persons agreed to shall attend the arbitration proceedings. 

17.4 The decision of the arbitrator/s may be made an order of court. 

17.5 This Agreement shall in all respects be governed by the law of  South Africa, without regard to its conflict of law provisions. The  application of the United Nations Convention on Contracts for the  International Sale of Goods (CISG) of April 11, 1980 shall be excluded. 

17.6 This clause 17 is severable from the rest of the Agreement and  shall survive the expiry or termination for whatsoever reason of the  Agreement. 

 

 

18. URGENT RELIEF 

The provisions of clause 17 shall not preclude any party from  access to a competent court of law for relief in the form of: 

18.1 an interdict, including a mandatory interdict; or 

18.2 an order for specific performance. 

 

 

19. DOMICILIUM CITANDI ET EXECUTANDI 

19.1 The Parties choose as their domicilia citandi et executandi for all  purposes of this Agreement, whether in respect of court process,  notices or other documents or communications of whatsoever  nature (including the exercise of any option), the following  addresses: 

19.1.1 United Business Solutions 

19 Trinity Close 

Paulshof, Sandton, 2056 

19.1.2 the Subscriber: at its physical address set out in the  Subscriber Application Form; 

19.2 Any notice or communication required or permitted to be given in  terms of this Agreement shall be valid and effective only if in  writing and delivered by hand to a Party’s chosen domicilium citandi  et executandi. 

19.3 Either Party may by notice to any other Party change the physical  address chosen as its domicilium citandi et executandi vis-à-vis that  Party to another physical address provided that the change shall  become effective vis-à-vis that addressee on the 10th business day  after receipt of the notice by the addressee. 

19.4 Any notice to a Party delivered by hand to a responsible person  during ordinary business hours at the physical address chosen as  its domicilium citandi et executandi shall be deemed to have been  received on the day of delivery. 

19.5 Notwithstanding anything to the contrary herein contained a written  notice or communication actually received by a Party shall be an  adequate written notice or communication to it notwithstanding  that it was not sent to or delivered at its chosen domicilium citandi  et executandi. 

 

 

20. CESSION 

20.1 UBS shall, without notice thereof, be entitled to cede, assign and  delegate all or any of its rights and obligations in terms of this  Agreement to a third party. 

20.2 The Subscriber shall not be entitled to cede, assign or delegate any  of its rights or obligations in terms of this Agreement without the  prior written consent of UBS. 

20.3 UBS shall be entitled, without prejudice to any of its other rights, to  terminate this Agreement on 7 days written notice to the  Subscriber in the event that the Subscriber shall purport to cede,  assign or delegate any of its rights or obligations in terms of this Agreement without the prior written consent of UBS. 

 

 

21. WHOLE AGREEMENT, NO AMENDMENT 

21.1 No extension of time or waiver or relaxation of any of the  provisions or terms of this Agreement or any agreement, bill of  exchange or other document issued or executed pursuant to or in  terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights in this Agreement, nor shall it operate  so as to preclude such Party thereafter from exercising its rights  strictly in accordance with this Agreement. 

21.2 To the extent permissible by law no Party shall be bound by any  term, representation, warranty, promise or the like not recorded  herein, whether or not it induced the contract. 

21.3 This Agreement together with all addenda and schedules signed by  the Parties constitutes the entire agreement between the Parties. 

21.4 Save as may be otherwise expressly provided in this Agreement, no  alteration, variation or consensual cancellation of this Agreement  and no addition to this Agreement shall be of any force or effect  unless reduced to writing and signed by the Parties or their duly  authorised representatives. 

21.5 No failure, delay, relaxation or indulgence on the part of UBS in  exercising any power or right conferred upon it in terms of this  Agreement shall operate as a waiver of such power or right, nor  shall any such failure, delay, relaxation or indulgence be deemed to be a novation of any of the terms and conditions of this Agreement.  The acceptance by UBS of any payment by the Subscriber after the  termination of this Agreement shall not be deemed to be a waiver  of UBS’s rights or be deemed to constitute a novation of this  Agreement. 

 

 

22. COSTS 

The Subscriber shall on demand pay all expenses incurred by UBS  either on behalf of the Subscriber or as a result of the Subscriber’s  failure to comply with any provision of this Agreement, including 

tracing costs and all legal costs calculated on the scale as between  attorney and client.

 

 

23. DEPOSIT 

23.1 The Subscriber undertakes that it shall, on the Signature Date, pay  to UBS the Deposit as set out in the Subscriber Application Form. 

23.2 UBS shall be entitled, in its sole and absolute discretion to  determine the amount of the Deposit required by it. 

23.3 The Deposit paid by the Subscriber shall be retained by UBS until  the termination of this Agreement, free of any interest to the  Subscriber and as security for the payment by the Subscriber of all  amounts for which the Subscriber shall be liable to pay to UBS in  terms of this Agreement. 

23.4 UBS shall have the right to appropriate all or part of the Deposit,  upon termination of this Agreement, towards payment of any  amount then owing to it in terms of this Agreement. 

23.5 Subject to the provisions of 23.3 and 23.4, UBS will repay such  Deposit to the Subscriber, or the balance thereof if any, within 14  days after the termination of this Agreement. 

 

 

24. PREPAID ACCOUNTS 

24.1 Although we use reasonable commercial efforts to route  communications to those destinations which are indicated on our  rates sheet from time to time, we cannot guarantee it. Neither can  we guarantee that all such destinations or all numbers in those  destinations are reachable. We will as far as reasonably possible  make an effort to provide information regarding specific type of  numbers which we do not route communications to, available on  the United Telecoms or United Business Solutions website. 

24.2 UBS specifically does not guarantee, warrant or represent that: 

24.2.1 our rates are cheaper than normal telephone calls or any  other calls; 

24.2.2 should you use an emergency services number that it will  operate correctly and/or that your location will be  

ascertainable based on your number; or 

24.2.3 all local or international telephone numbers can be called. 

24.3 Any calling credit and any other assets left on an account that has  been dormant for longer than 6 months will be deleted along with  the account and are not refundable. Dormant accounts are accounts  that have not had any inbound or outbound activity for a 6-month period. 

24.4 Once airtime has been successfully loaded onto an account it  cannot be cancelled or refunded. Airtime is not refundable or  transferable. 

 

 

25. DISCLAIMERS 

25.1 The Subscriber specifically accepts and acknowledges that  UBS acts merely as a distributor of any data and the  Subscriber accepts all liability, arising from any claims, inter  alia claims relating to: 

25.1.1 any intellectual property infringement contained in  the information including copyright infringement  

(whether digital or otherwise), trade mark  

infringement, infringement of trade secrets and/or  

databases; 

25.1.2 the distribution of any defamatory, discriminatory or  obscene material, whether unacceptable or illegal;  

the distribution of any sexually explicit messages,  

images, cartoons or jokes, whether unacceptable or  illegal; the distribution of offensive, disruptive,  

harmful or insulting material; the distribution of  

computer viruses; the distribution and/or  

disclosure of private information; and the  

Subscriber’s breach of contract to a third party; or 

25.1.3 non-compliance with any legislation and/or  regulations, including but not limited to, regulations  issued by the South African Revenue Services from  

time to time. 

 

 

26. OVERRIDING PROVISIONS 

Unless otherwise specifically stipulated in writing to the contrary,  the terms and conditions herein contained shall supersede and  prevail over any terms and conditions contained in any other  document(s) signed or submitted by the Subscriber. 

 

 

27. CONSUMER PROTECTION ACT ACKNOWLEDGEMENT 

In the event that the Subscriber is a consumer as defined in the  Consumer Protection Act 68 of 2008, (“the CPA”) the Subscriber’s  attention is in terms of section 49 of the CPA, drawn to all  provisions in this Agreement printed in BOLD. 

 

 

28. NUMBER PORTING 

Number porting will be charged at R199.00 ex vat per individual  number to be ported. 

 

 

29. UNCAPPED VOICE ACCEPTABLE AND FAIR USE  POLICY 

To maintain the quality and availability of our Uncapped Voice  products for all users, UBS has implemented several systems to  ensure fair use on all uncapped Voice products. 

In the event of abusive customer behaviour being detected, UBS  reserves the right to immediately suspend with notice the account  of a customer whose usage is affecting UBS’s network or that of its  suppliers. 

If found that the same user continuously effects the user  experience of other customers on the UBS VoIP and Data network  or continues to bypass warnings or systems put in place by UBS to  stop abusive behaviour, then UBS reserves the right to immediately  terminate the account of that customer and the customer agrees to  pay any and all applicable fees that may be due on termination as  per their Terms and Conditions. It is the responsibility of the  customer to ensure they have the appropriate uncapped voice  package for their type of use. 

We reserve the right to establish policies, rules and limitations,  from time to time, concerning the use of any service. You must  comply with any limitations we may impose, in our reasonable  discretion. Failure to comply with these rules may result in your 

service being restricted, suspended or terminated, in our  reasonable discretion. 

Please note the following fair usage policy table will apply to  all uncapped voice usage: 

• Uncapped Voice Package. *Minutes Included  

(Local, National and Local Mobile Only) 

• Pro UVC Cloud PBX Extension: 500 Minutes 
• Uncapped UVC Cloud PBX Extension: 1000 Minutes  

*Voice billing is calculated based on per second billing. 

Should you exceed the total included minutes (based on the above  uncapped voice minutes table) or Gigabytes you will be billed at our  standard call rates (Full A-Z rate sheet available upon request.) for  any minutes that exceed the fair usage table above. 

Please note that all uncapped voice services exclude all  international telephone calls and/or premium rated local  telephone calls. Should you choose to call any of these telephone  numbers you will be billed for this according to your prevailing  standard call rates which can be requested from UBS at any time. 

The service may not be used in conjunction with bulk outbound  calling applications and devices an example of which is a call centre  solution. The product/s may not be used for purposes of running a  Call Centre.  

Notwithstanding anything else contained in this policy or any other  UBS agreement, UBS may at its sole discretion change the  Uncapped Voice Minutes Table on 14 (fourteen) days written notice. 

Please note the following fair usage policy table will apply to  specified uncapped Data usage products: 

• Uncapped Data Package. *Gigabytes Included 
• Fixed LTE Uncapped Data: 1000 GB Fair Usage Policy 

Once the Fair Usage for a particular month has been depleted, UBS  shall be entitled to, without notice to the Customer: 

• Reduce the line speed for the remainder of that month;  and/or
  
• Reduce Peer to Peer and NNTP protocols. 

 

 

30. LANDLORD APPROVAL CLAUSE: 

30.1 Consent for Installation on Non-Owned Premises. If the  Customer is not the owner of the premises where United Telecoms  Services and/or any Managed Service Equipment are to be  installed, the Customer must, prior to any installation, obtain  written permission from the property owner. This permission must  be secured at the Customer’s own cost and expense. United  Telecoms will not be liable for any damages or claims arising from  the Customer’s failure to obtain this permission, and the Customer  will indemnify United Telecoms for any associated costs, including anticipated expenses incurred in the event that equipment or  circuits must be removed from the premises. 

30.2 Responsibility for Third-Party Consents. The Customer is solely  responsible for securing all required third-party approvals and  consents necessary to survey, install, and use the Services  provided by United Telecoms. Failure to obtain these consents may  impact service delivery timelines, and any resulting delays will be  the responsibility of the Customer. 

30.3 Landlord Approval for Fibre Installation. By signing this  agreement, the Customer confirms that the landlord has initially  indicated that access for installing fibre infrastructure and services  will be permitted, subject to final approval following a site survey.  Any delays related to landlord approvals, consent processes, or  Customer availability may impact delivery timelines. Such delays  will not qualify for Prioritised Delivery refunds, where applicable.