The Customer hereby appoints Metacom to provide Hardware and/or Services as set out in the Online Order.

An Online Order is deemed to be agreed between the Parties if the Customer places an On-line order on Metacom’s Online Sales Portal and accepts the terms and conditions.

The Customer accepts these terms and conditions by selecting the terms and conditions tick box on the Online Sales Portal.

“Billing Date” means the date on which the Customer is invoiced for reoccurring Service Fees. At the time of this agreement this date will be the 25^th date of every month for the duration of the agreement term. This date is subject to change at the discretion of Metacom.

“Commencement Date” means the date on which the Online Sales Order Hardware is delivered, or the service is made available for use, depending on which happens last.

“CPI” means the latest available year-on-year increase in the Consumer Price Index (metropolitan areas, all items) as published by Statistics South Africa as at the effective date of such increase;

“Customer” means the entity as is defined on the On-line sales order as the entity who requests the Service from Metacom.

“Effective Date” means in the date of acceptance of the On-line sales order, as is evidenced from the Metacom Online Sales Portal, by the Customer;

“Hardware” means the equipment provided by Metacom to the Customer as per the relevant Online Order;

“Initial Agreement Period” means the period defined as the agreement term on the Online Order, after the Commencement Date;

“Intellectual Property” means any know-how (not in the public domain); invention (whether or not patented); design, trademark, or copyright material (whether or not registered);

“Online Order” means the placement of an order on Metacom’s Online Sales Platform, the placement of which means that the Customer has read and accepted these standard terms and condition of sale. The records of Metacom’s Online Sales Platform will service as prima facie evidence of the order being placed by the Customer and these terms and conditions being accepted.

“Online Sales Portal” means the website owned by Metacom making available Metacom products and Service to Customers. This may be referred to as the MetaShop.

“Parties” means collectively Metacom and the Customer and the term “Party” refers to either one of them as the context may require;

“Personnel” means any director, employee, agent, consultant, contractor or other representative of a Party involved in the execution of their rights and obligations under this Agreement;

“Prime Rate” means the publicly quoted prime rate of interest (percent, per annum) from time to time charged by Standard Bank of South Africa Limited, as certified by any manager of such bank, whose appointment and authority it shall not be necessary to prove, calculated daily and compounded monthly in arrears;

“Service Fees” means the fees and charges to be paid by the Customer to Metacom in respect of Services and rentals provided by Metacom as per the relevant Online Order.

“Services” means the services provided by Metacom to the Customer in terms of Online Orders;

“Standard Terms and Conditions” means this document comprising clauses 1 to 19 and excludes references to any schedules, annexures or addenda hereto;

The Standard Terms and Conditions shall commence on the Effective Date and shall continue indefinitely until terminated as per clause 3.3.

Each Online Order shall commence on the relevant Commencement Date.

The Customer or Metacom can terminate this agreement at any time by cancelling the Service on Metacom’s Online Sales Portal. The effect of this cancellation will be

1. If the Service is not subject to an agreement term, the relevant Service and associated agreement will cease on the day prior to the next Service Billing Date of the relevant calendar month.
   
   As an example, if the Customer terminates the Service on the 1st of the month and the Billing Date is the 25th of the month, then the agreement will cease, and charges will stop on the 24th of the month of cancellation. All services are charged in advance and there will therefore be no charge on the 25th of the month following the cancellation and no credit will be due to the customer
   
   If the Service is subject to an agreement term, the relevant Service and associated agreement will cease on the day prior to the last Billing Date of the relevant agreement term.
   
   As an example, if the Customer terminates the Service on the 1st of the month and the client Billing Date is the 25th of the month, then the agreement will cease, and charges will stop on the 24th of the last month of agreement term. All services are charged in advance and there will therefore be no charge on the 25th of the month following the cancellation and no credit will be due to the customer

The Standard Terms and Conditions shall automatically terminate when all Online Orders placed by the customer are terminated.

For the avoidance of doubt, any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.

The Customer shall be liable for and shall pay all the Fee’s stipulated as once of on the Online Order.

The once off payments for products will be deducted from the Customers chosen payment method on acceptance of the Online Order by Metacom.

The Customer shall be liable for and shall pay the Service Fees in respect of Services supplied on the basis set out in the On-line order.

All Service Fees shall be invoiced by Metacom monthly in advance on the Billing Date of the relevant month and shall be paid upon invoice through a deduction of the funds from the Customers chosen payment method on the Billing date of every month.

The first invoice and payment for Services and Rental Fees shall be for an amount equal to the service charge, from the Commencement date to the Billing date of the relevant month and for one month in advance.

Should the Customer dispute any amount reflected in any invoice in good faith, the Customer shall advise Metacom of such disputed amounts, together with the reasons for disputing same, in writing within 14 (fourteen) days of any invoice.

Should Metacom not receive payment for any reason, Metacom reserves the right to

1. with immediate effect suspend (in whole or in part) the Services until such time as the arrear amounts, including any interest thereon, are paid in full; and/or

2. terminate:

   1. all Services being rendered to the Customer;

   2. the entire Agreement;

   and in either of the above circumstances, Metacom shall be entitled, without limitation of its rights in law, to recover from the Customer all damages Metacom may suffer by reason of such termination, as well as all arrears in Service Fees and other costs, charges, assessments, and reimbursements.

Monthly recurring Service Fees shall continue to accrue and be payable by the Customer, notwithstanding Metacom’s exercise of available remedies set forth in clause 4.7.

All outstanding amounts not paid on the due date therefor shall attract interest at the Prime Rate. Such interest shall be calculated from the due date of payment to the date of actual payment, both days inclusive, calculated daily and compounded monthly in arrears.

Escalation

1. All Service Fees stipulated in an Online Order are subject to an annual escalation by Metacom on 1 July of each year during the Agreement Term.

2. Annual escalation shall not exceed the CPI.

3. Orders may specify that specific Services or component thereof are subject to escalation if certain criteria are met. These criteria include but are not limited to events such as exchange rate variation and changes in pricing from third party service providers.

Unless otherwise stipulated in an Online Order:

1. nothing in this Agreement will be construed as effecting an assignment of any Intellectual Property owned by either Party to the other, and

2. nothing in this Agreement will be construed as the grant of a license to use any Intellectual Property owned by either Party to the other.

Metacom is entitled to suspend provision of the Services to the Customer where the Customer has not made payment of monies owing to Metacom.

Metacom is entitled to suspend Services as contemplated in clause 6.1 immediately and without notice.

Without limiting any other remedies it may have in terms of this Agreement or in law, Metacom shall charge the Customer a fee for the reconnection of any suspended Services equal to one months’ Service Fee for the relevant Service which is being reconnected.

While Metacom recognises and shall take reasonable steps to protect the Customer’s right to privacy in respect of its data and content transmitted via the System, the Customer agrees that Metacom may monitor the Customer’s use of the System for the purpose of ensuring that the System is operating properly, subject to Metacom’s compliance with applicable data protection laws.

It is recorded that:

1. Metacom has no interest in the data transmitted by the Customer while using the Service;

2. Metacom has no legal duty to monitor any data or content made available or transmitted, subject to any statutory compliance obligation contemplated in clause 10.

Metacom shall not access the Customer’s data or content transmitted by the Customer without the Customer’s prior written authorisation. Metacom shall not be liable for any inadvertent (unintentional) or negligent unauthorised access of the Customer’s data by Metacom or its agents or its employees (acting in the course and scope of their employment).

The Customer agrees that it shall have no action or claim against Metacom for any damages howsoever arising as a result of any act or omission relating to the transmission of the data. The Customer accordingly indemnifies and holds Metacom harmless in respect of any action or claim brought against Metacom by a third party resulting from any such act or omission.

The Customer acknowledges that Metacom may be required to suspend the Services and/or Customer’s access to the System temporarily in order to carry out routine maintenance, provided that Metacom shall endeavour to undertake same at times of low traffic volume.

Notwithstanding the above, Metacom may suspend the Services and/or immediately and without notice should maintenance be necessary in an emergency.

The Customer acknowledges that Metacom is obliged to comply with certain statutory provisions in connection with providing the Services including, but not limited to those set out in:

1. the Regulation of Interception of Communication and Provision of Communication-related Information Act (70 of 2003);

2. the Film and Publications Act (Act 65 of 1996);

3. The Electronic Communication and Transactions Act (Act 25 of 2002).

Metacom’s mandatory compliance with such statutory provisions may include steps which would otherwise constitute infringements of the Customer’s privacy, such as the interception of the Customer’s communication or the examination of Customer’s data. The Customer agrees that it shall have no action or claim against Metacom for any damages howsoever arising as a result of such steps taken by Metacom in compliance with its mandatory statutory obligations. The Customer accordingly indemnifies and holds harmless Metacom in respect of any claim or action brought by a third party resulting from such steps taken by Metacom in relation to the Customer’s System.

The Customer acknowledges that where the Service includes a last mile communication component such as ADSL, LTE, 5G, Fibre or Microwave, that the third-party communication service may be subject to certain standardised “fair usage policies” and/or “protection of personal information policies”. Such services when included in the Service provided by Metacom shall be subject to the terms and policies of the third-parties as is published on their websites.

To the extent that Metacom is a “responsible party” and the Customer is a “data subject” in relation to any “personal information” of the Customer obtained by Metacom in terms of or pursuant to this Agreement (as these terms are defined in the Protection of Personal Information Act 4 of 2013 (“POPI”)), Metacom undertakes to comply with all applicable provisions of POPI in respect of the Customer’s personal information obtained in terms of or pursuant to this Agreement.  

Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, Metacom’s maximum liability for general and/or direct damages for any breach of this Agreement or any action or omission arising during the course and scope of fulfilling its obligations in terms of this Agreement, shall be limited to an aggregate amount of all the Service Fees paid by the Customer to Metacom in respect of the Services set out in the Online Order relevant to the breach, during the preceding 3 (three) month period. Such maximum amount shall be an aggregate amount for all claims arising out of the causes mentioned.

Under no circumstances shall Metacom entertain liability for general and/or direct damages for any breach of this Agreement where any Service Fees payable by the Customer as set out are overdue.

Under no circumstances shall either Party be liable for any special, indirect, consequential or like damages which may arise pursuant to this Agreement (or any act or omission arising during the course and scope of fulfilling its obligations in terms of this Agreement), including, without limitation, any damages arising due to any loss of profits or loss of business.

The Customer shall not be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of this Agreement or any Order without the prior written consent of Metacom.

Metacom may sub-contract its obligations under this Agreement, provided that Metacom shall remain liable for the proper performance of such sub-contractor. Metacom shall not be required to disclose the terms or payment provisions of any sub-contract entered into with respect to Metacom’s obligations under this Agreement.

Metacom and/or the Customer acknowledges that all material and information which has or will come into its possession or knowledge in connection with this Agreement or the performance hereof, consists of confidential and proprietary data which disclosure to or use by third parties may be damaging to Metacom and/or the Customer.

Metacom and/or the Customer agrees to hold such material and information in the strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees reasonably requiring such information, and not to disclose or release it to any other party unless so required by law.

Neither Party shall use the names, trade-marks or trade names, whether registered or not, of the other Party, in publicity releases or advertising or in any other manner, without the prior written approval of the other Party.

Clauses 13.1, 13.2 and 13.3 will remain in force for the duration of this Agreement and for a period expiring 12 (twelve) months after the termination of this Agreement in accordance with its terms.

Each party chooses its domicilium citandi et executandi at which it will receive service of all notices and documents as follows:

1. Metacom:                 6 Inyoni Street, Ndabeni, 7405

2. The Customer:        The address as is provided on the Online Sales Portal of Metacom

Either party may on 7 (seven) days written notice to the other change its domicilium address, provided that any such new domicilium address is situate in the Republic of South Africa.

Any notice given and any payment made by either Party to the other ("the addressee") which is delivered:

1. by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be deemed, until the contrary is proved, to have been received by the addressee at the time of delivery;

2. by pre-paid registered post at the addressee's domicilium for the time being shall be deemed, until the contrary is proved, to have been received by the addressee 7 (seven) days after the posting thereof;

The Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto shall be determined in accordance with such laws.

The Parties will make every effort to cooperate and agree on matters covered by or arising from this Agreement, and to fairly and quickly resolve any disputes between them arising from this Agreement. If any such dispute cannot be resolved by the Parties themselves within 14 (fourteen) days of being declared by one of the Parties, then that dispute shall be submitted to and decided by arbitration. Either Party may submit a dispute to arbitration in terms of this clause upon written notice to the other of its intention to do so.

Such arbitration shall be held:

1. at Cape Town or at such other place as the Parties may agree;

2. subject to any direction by the arbitrator, in an informal manner without any pleadings or discovery of documents and without it being necessary to observe the strict rules of evidence;

3. as soon as possible with a view to it being completed within 1 (one) month of the date on which the dispute is referred to arbitration; and

4. subject to anything contrary in this clause 17, in accordance with the provisions of the Arbitration Act 42 of 1965.

The arbitrator shall be agreed upon between the Parties in writing. In the event of the Parties failing to reach agreement as to the arbitrator within 5 (five) days after the arbitration has been demanded, the arbitrator shall be appointed by the Secretariat of the Arbitration Foundation of South Africa.

The arbitrator;

1. shall decide the dispute submitted to him expeditiously and, if possible, within 1 (one) month after the submission of thereof to him;

2. may call for whatever representations, evidence or arguments from the Parties which he may consider appropriate in the circumstances;

3. may consult with other professionals or experts in any relevant field as he in his sole discretion may deem necessary to enable him to arrive at a just decision, although nothing in this clause shall preclude him from relaying on his own expertise and/or experience;

4. shall decide in his sole discretion on what proportions in which the Parties are responsible for all charges, costs and expenses incurred in resolving the dispute and as to whether, at what rate, and to what period a Party may be entitled to interest. In this regards, the arbitrator may take into account any travel and other expenses incurred by any Party who is required to travel to the arbitration hearing; and

5. shall give his decision in writing.

The Parties hereby irrevocably agree that the decision of the arbitrator in any such arbitration shall be final and binding upon them. In the event of a Party failing to comply with such decision the other Party shall be entitled to institute legal proceedings for enforcement of that decision.

This clause is separate from the rest of the Agreement and will remain effective between the Parties if this Agreement is terminated.

The aforegoing shall not restrict the right of either Party to apply to a competent court for relief of an urgent nature or should its Intellectual Property rights be violated or threatened, and the Parties consent to the jurisdiction of the High Court of South Africa (Western Cape Division, Cape Town) for such purposes.

Should either the Customer or Metacom (hereinafter referred to as “the invoking party”) be prevented from fulfilling any of its obligations in terms of this Agreement as a result of any act of God, war, fire, flood, legislation, insurrection, sanctions, or other cause beyond the reasonable control of such Party (any such event hereinafter referred to as “force majeure”) then:

1. The invoking party will forthwith give written notice thereof to the other party:

   1. Specifying the cause and anticipated duration of the force majeure.

   2. Promptly upon termination of the force majeure, stating that such force majeure has terminated.

Performance of any such obligations will be suspended from the date on which notice is given until the date on which notice of termination of a force majeure event is given (hereinafter referred to as “suspension period”), subject always to the remaining provisions of this clause.

The invoking party will not be liable for any delay or failure in the performance of any obligation hereunder, or loss or damage due to or resulting from the force majeure during the suspension period provided that the invoking party uses and continues to use its best efforts to perform such obligations.

If the force majeure shall continue for more than 15 (fifteen) consecutive days, the other Party will be entitled to, notwithstanding the provisions of clause 4, cancel this Agreement on the expiry of such 15 (fifteen) day period, but will not be entitled to claim damages against the invoking party as a result of the delay or failure in the performance of any obligations hereunder due to or resulting from the force majeure.

a reference to natural persons shall include a reference to bodies corporate and other legal personae and vice versa;

words importing the masculine shall include a reference to the feminine and neuter and vice versa;

words importing the singular shall include a reference to the plural and vice versa;

schedules and annexures to this Agreement shall form an integral part hereof;

a reference to a Party in a document includes that Party’s successors and permitted assigns;

any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;

where the day on or by which anything is to be done is not a business day, it shall be done on or by the first business day thereafter;

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 weekend or public holiday, in which case the last day shall be the next succeeding day which is not a weekend day or public holiday;

the headings appearing in this Agreement are for reference purposes only and shall not affect the interpretation hereof;

where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail;

if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party, notwithstanding that it is only a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;

the use of the word including followed by specific example(s) shall not be construed as limiting the meaning of the general wording proceeding it and the eiusdem generis rule shall not be applied in the interpretation of the general wording or the specific example(s) used in this Agreement;

the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;

the expiration or termination of this Agreement shall not affect those provisions which expressly provide that they will operate after the expiration or termination or, which of necessity must continue to have effect after the expiry or termination of this Agreement, notwithstanding the fact that the clauses themselves do not expressly provide this.

No variation, alteration, consensual cancellation, or novation of or addition to this Agreement and no waiver by the parties of any of their rights hereunder shall be of any force or effect unless reduced to writing and signed by the said Parties.

No indulgence which either Party ("the grantor") may grant to the other ("the grantee") shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which may arise in the future.

No Party has relied on or been induced by any representation made by any other Party or its agent in entering into this Agreement other than the representations reduced to writing and contained herein.

This Agreement constitutes the entire Agreement between the Parties hereto who acknowledge that no other ancillary agreement exists.  

In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining provisions, which shall remain of full force and effect. If any invalid term is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.

Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement.

The relationship of the Parties, inter se, shall be governed by this Agreement and nothing contained herein shall be deemed to constitute a partnership, joint venture or the like between them, nor to constitute one Party the agent of the other for any purpose.