1. INTERPRETATION
1.1. “SMART CHOICE TV”/ “SMART CHOICE TV” means SMART CHOICE TV
1.2. SMART CHOICE TV-VOICE – Is an umbrella brand for SMART CHOICE TV’s voice products and includes. but not limited to, BROADCASTING VIA OTT, STREAMING LIVE TV, VIDEO, SERIES, VOIP HARDWARE AND SOFTWARE, VOIP OR VOICE MINUTES, SMS BUNDLES as selected by the subscriber.
1.3. SMART CHOICE TV-DATA – Is an umbrella brand for SMART CHOICE TV’s data products and includes, but not limited to the provisioning of STREAMING VIA OTT, SATELLITE. ADSL, DIGINET, WIRELESS, DATA BACKUP, WEBSITE HOSTING, E-MAIL AND DOMIAN REGISTRATION AND HOSTING as detailed in product addendum selected by the subscriber.
1.4. SMART CHOICE TV-SUPPORT – is an umbrella brand for SMART CHOICE TV’s added value services which include, but are not limited to FIREWALLING , BANDWIDTH MANAGEMENT, ANTI SPAM AND ANTI VIRUS PROGRAMMING, SPECIALISED IT SUPPORT, IT AUDITING, VPN PROGRAMMING as selected by the subscriber.
1.5. ”SERVICES” – Collectively Means SMART CHOICE TV-DATA, SMART CHOICE TV-VOICE and SMART CHOICE TV-SUPPORT PRODUCTS which are selected and agreed upon herein and on the attached Addendum/s and any ancillary services related thereto.
1.6. “ADSL” means the provision of Telkom’s Asymmetric Digital Subscriber Line access service, which is a best effort service and no guarantees are provided on throughput.
1.7. “SUBSCRIBER” – means the Company, Close Corporation, Firm, Partnership or Persons contracting to receive the Services from SMART CHOICE TV in terms of this Service Agreement.
1.8. “PREMISES” means the installation address as defined on the face of this agreement.
1.9. “WIRELESS” means hardware and software used to transmit our services over a wireless network.
1.10. “AGREEMENT” – these terms and conditions as read together with the schedule on the face hereof and the applicable attached Product Addendum/s.
1.11. “CONNECTION DATE” – the date on which the services commence.
1.12. “DURATION OF THE CONTRACT” – the number of months the Service specified upon the face hereof and/or the applicable attached Addendum/s is contracted for.
1.13. “NETWORK OPERATOR” – refers to SMART CHOICE TV, Neotel, Vodacom, MTN, Cell C, Verizon, IS, Telkom and/or all other data and voice carriers that SMART CHOICE TV interconnects with.
1.14. “ADDENDUMS” – Being the individual products selected and described in the attached product sheets. The Subscriber Agreement is not deemed complete without the relevant addendum/s attached and signed by the Subscriber. The Subscriber Agreement and the relevant addendum/s are deemed as one legally binding document.
2. APPOINTMENT AND TERM
2.1. With effect from the date of acceptance hereof by SMART CHOICE TV the Subscriber appoints SMART CHOICE TV to provide the services.
2.2. The Subscriber agrees to be bound by the provisions contained in the notice, directive, or applicable tariff plan issued or derived by SMART CHOICE TV and/or the service provider from time-to-time.
2.3. The Subscriber acknowledges that this agreement agreed in writing between the parties constitutes an irrevocable offer by the Subscriber, which may be accepted or refused by SMART CHOICE TV in its sole discretion. The offer will be considered once received by SMART CHOICE TV at SMART CHOICE TV’s premises. Connection of the Subscriber shall be deemed to constitute commencement of this agreement. This agreement shall become binding between SMART CHOICE TV and the Subscriber once signed by SMART CHOICE TV, whether or not the Subscriber was notified of the acceptance of the offer or not.
2.4. This agreement shall run for an initial trial period as selected on the face hereof, starting in terms of
2.3 above and terminating at the end of the period, unless the subscriber gives written notice by signing off the Product Addendum/Customer Acceptance form that they are satisfied with the product, in which case, on acceptance thereof in writing by SMART CHOICE TV, the contract will run for the successive periods as selected.
2.5. This Agreement shall continue for successive periods as selected on the face hereof after the Trial term at the then prevailing monthly subscription fee of SMART CHOICE TV, unless either party serves written notice of termination on the other not less than 1 (ONE) month prior to the end of the such successive periods selected.
2.6. Termination of the agreement does not relieve the Subscriber from the liability to pay charges for all calls and data usage used by the Subscriber up until the service is disconnected by SMART CHOICE TV or contract terminated.
3. SERVICES
3.1. Our services are distributed to the installation address using both fixed line cable and/or wireless equipment “WIRELESS”. The quality and availability of WIRELESS can be affected by factors outside our control.
3.2. Because of the need to conduct repair and/or improvement work from time-to-time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time-to-time without notice by SMART CHOICE TV, and SMART CHOICE TV, is exempted from all liability for any loss or damage (whether direct or consequential) and/or for any costs, claims or demands of any nature to the Subscriber and/or any third party arising from such suspension. SMART CHOICE TV shall use best effort to notify the subscriber well in advance of any scheduled maintenance planned.
3.3. The Subscriber shall have no claim of whatsoever nature and howsoever rising against SMART CHOICE TV, its services providers or the building owner/landlord, including no right to cancel this agreement or to withhold payment of any monies due in terms hereof should the network temporarily or otherwise fail, malfunction, provide no or poor coverage or should any of the services or facilities provided by the network operator, ESKOM, or SMART CHOICE TV be temporarily unavailable.
3.4. The Subscriber shall not be entitled to set off or deduct any monies in respect of “dropped” or discontinued calls and/or connections or temporarily unavailable services including facsimile and other services. SMART CHOICE TV does not make any representations nor, give any warranty or guarantee of any nature whatsoever in respect of the Service.
3.5. SMART CHOICE TV does not warrant or guarantee that the information transmitted by the use of the Services will be preserved or sustained in its entirety, will be suitable for any intended purpose, will be free of inaccuracies or defects or bugs or viruses of any kind, and will not contravene the laws of a particular country.
3.6. SMART CHOICE TV shall be entitled in its sole discretion to suspend, cancel, vary or terminate this agreement or any part thereof, without SMART CHOICE TV incurring any liability whatsoever in the event of non-availability of the service or if any agreement giving SMART CHOICE TV access to anything relating to the service, is suspended, cancelled, varied or terminated.
3.7. SMART CHOICE TV reserves the right to carry out a credit check against the Subscriber prior to acceptance of this agreement and subsequent to carrying out of such credit check may request from the Subscriber a cash deposit or bank guarantee in a form to be approved by SMART CHOICE TV and issued by a bank acceptable to it or such form of security as SMART CHOICE TV may at its sole discretion request, provided that the total amount of any cash deposit or bank guarantee shall not exceed the total Charges which SMART CHOICE TV may reasonably expect the Subscriber to incur during any twelve (12) month period.
3.8. If any unpaid charges incurred by the Subscriber (including Charges which have accrued but have not yet been invoiced) shall at any time exceed the amount of any initial deposit or bank guarantee provided by the Customer to SMART CHOICE TV in terms of clause 4, SMART CHOICE TV may request an additional amount by way of cash deposit or bank guarantee in a form to be approved by SMART CHOICE TV and issued by a bank acceptable to it or such form of security as SMART CHOICE TV may at its sole discretion may request, provided that the total amount of any cash deposit or bank guarantee shall not exceed the total Charges which SMART CHOICE TV may reasonably expect the Subscriber to incur during any twelve (12) month period.
3.9. The Subscriber acknowledges that any failure by it to comply with any request made by SMART CHOICE TV under Clauses 3.8 and 3.9 shall constitute a material breach under this Agreement, which is not capable of remedy.
3.10. If the Subscriber fails to make payment in accordance with Clause 5, SMART CHOICE TV shall be entitled in addition to any remedy which it may have under this Agreement or otherwise in law: 3.10.1. to offset any sums owing to it against any cash deposit or bank guarantee provided to SMART CHOICE TV in accordance with this Clause 3; 3.10.2. to terminate this Agreement in terms of Clause 8.2.
3.11. The Subscriber agrees that if for any reason any of the agreements between the network operators and SMART CHOICE TV are terminated so as to have the effect of SMART CHOICE TV not being entitled to render the services, all of the rights and obligations of SMART CHOICE TV in terms of this agreement may be assigned to any third party service provider, at SMART CHOICE TV’s sole discretion. Initial PAGE 3 33 3
3.12. Any migration from package to another by the subscriber will be subject to the discretion and approval of SMART CHOICE TV and any migration charges where applicable will be as per the applicable SMART CHOICE TV tariff plan. The Subscriber shall allow SMART CHOICE TV access to the Subscriber’s premises with prior notification to the Subscriber, in order to install, maintain, monitor, inspect replace or remove the services
4. CHARGES
4.1 The subscriber shall pay to
SMART CHOICE TV:
4.1.1. Upon commencement hereof, the initial connection charge “activation fee” and all other introductory, hardware costs; and/or
4.1.2. Commencement charges stipulated on the attached addendum/s; and 4.1.3. In the case of the monthly subscription fee, payment for the first month to be pro rated to the period from the commencement date to the 24th day of the following month; and
4.1.4. Arrears as and when monthly Billing is passed on by the network operator, the total call charges used and/or generated by the Subscriber during each Billing period and any other charges payable in respect of the services requested by the Subscriber or other charges levied by SMART CHOICE TV from time to time; and
4.1.5. Valued added tax at the applicable rate on all vatable charges and services. All charges, unless otherwise stated, exclude value added tax.
4.2. The charges payable by the Subscriber to SMART CHOICE TV for the provision or facilitation of the services shall be stipulated in any notice, directive, promotion or applicable tariff plan issued or derived by SMART CHOICE TV from time to time and the contents of such notice, directive promotion or tariff plan including the charges stipulated therein shall be deemed to be incorporated in this agreement as if specifically set out herein.
4.3. The Subscriber agrees that SMART CHOICE TV shall be entitled from time to time to increase or vary the charges payable (as dictated by the networks or by extreme currency fluctuations) by the Subscriber to SMART CHOICE TV for the services. SMART CHOICE TV shall endeavour to give the Subscriber prior notice of any such increases or variation but gives no undertaking in this regard.
4.4. SMART CHOICE TV’s monthly statement of charges shall be prima facie proof of the amounts owed by the Subscriber to SMART CHOICE TV in terms hereof and of the other facts stated herein and should the Subscriber dispute the number, duration or amount charged in respect of any call made or services rendered by SMART CHOICE TV, then the Subscriber shall bear the onus of proving that SMART CHOICE TV’s statement is incorrect in such respect.
5. PAYMENT TERMS
5.1. Should the Subscriber send any monies, cheques, orders or Bills by means of the postal services, then the postal authority shall be deemed to be the agent of the Subscriber and the Subscriber shall bear all risk of loss, theft and delay in and to any such monies, cheques, orders or Bills sent by post and without derogating from what is stated herein, the Subscriber shall draw all cheques, postal orders and Bills payable to SMART CHOICE TV Communications (Pty) Limited and marked “not transferable”.
5.2. The Subscriber agrees that payment shall only have been made to SMART CHOICE TV when the monies remitted by the Subscriber have been received into SMART CHOICE TV’s bank account.
5.3. Should any debit order or cheque payment be returned unpaid or stopped, for whatsoever reason or should SMART CHOICE TV exercise its right to suspend the provision of the services due to late or non-payment of any monies due in terms hereof by the Subscriber, then the Subscriber shall pay an administration charge of at least R200,as may be levied by SMART CHOICE TV from time to time for each such non-payment, suspension or any other breach of this agreement which amount shall be liable upon demand and recoverable by SMART CHOICE TV.
5.4. In the case of the monthly subscription fee, payment for the first month to be pro-rated to the period from the commencement date to the 24th day of the following month, and paid upon commencement. Subsequent payments to be made monthly in advance on or before the twenty fifth day of every month, or as per the debit order run date. Non-receipt of invoices by the Subscriber will not be considered as a valid basis for late or non-payment.
6. PROOF OF PAYMENT
6.1. The Subscriber agrees and acknowledges that a certificate given under the hand of a financial manager or controller of SMART CHOICE TV whose status and authority need not be proved shall be considered prima facie proof of the amount due and shall entitle SMART CHOICE TV to apply for judgment against the Subscriber and to obtain summary judgment or provisional sentence, as the case may be.
7. LIMITATION OF LIABILITY
7.2. The Subscriber hereby indemnifies SMART CHOICE TV and the building owner/landlord and holds them harmless against any claim by any third party arising directly or indirectly out of the Subscriber’s access to or use of the Service or information obtained through the use of it, including without limitation of any claim due to the use of the Services for unlawful purposes. SMART CHOICE TV shall not be liable for any loss or damages arising out of mistakes, omissions, interruptions, delays, errors or defects in the service, the transmission of the service, or failures or defects in facilities furnished by SMART CHOICE TV, occurring in the course of furnishing service, and liability shall in no event exceed an amount equivalent to the proportionate fixed monthly charge to SMART CHOICE TV for service, during the period of time in which such mistakes, omissions, interruptions, delays, errors or defects in the service, its transmission or failure or defect in facilities furnished by SMART CHOICE TV occurred.
7.3. The Subscriber must pay SMART CHOICE TV for the replacement or repair of damage to SMART CHOICE TV’s equipment or facilities caused by the negligence or wilful act of the customer or users; improper use of service; or any use of equipment or service provided by others.
7.4. The Subscriber must insure SMART CHOICE TV’s equipment or facilities installed at the Subscriber’s premises for the theft or mishandling of equipment, or the Subscriber shall be liable for the replacement equipment.
7.5. The equipment installed at the Subscriber’s premises remains the property of SMART CHOICE TV’s unless the Subscriber has purchased and paid for the equipment.
7.6. The Subscriber is liable for all Services subscribed for, once the services have been installed and activated.
7.7. SMART CHOICE TV shall not be liable in respect of any warranties and/or representations of any nature whatsoever given or made by the salesman or selling agents who have no authority to bind the company in any respect whatsoever.
8. BREACH
8.2. If the Subscriber:
8.1.1. Fails to pay any amount under this Agreement on due date, then SMART CHOICE TV shall be entitled without prejudice to any of its other rights arising out of this agreement forthwith and without any liability towards the Subscriber to suspend its provision to the Subscriber of the services in whole or in part and/or disconnect the Subscriber from the network and/or to render the equipment inoperable by whatever means.
8.1.2. Terminates the contract before the specified date of termination for breach of contract, it will result in the Subscriber being liable for the full payment of the remaining subscription or hardware fees for the applicable term signed upon in the terms of this Agreement and the terms stipulated and signed upon in the Product Addendum/s.
8.3. SMART CHOICE TV has the right to terminate this Agreement without prejudice to any other right SMART CHOICE TV may have in terms of this Agreement or at law; if the Subscriber:
8.2.1. fails to pay the Monthly Subscription and other charges in terms of this Agreement on due date;
8.2.2. breaches any provision of this Agreement, all of which are deemed to be material, and fails to remedy the breach within 7 the (seven) days after the dispatch of a registered, hand delivered or faxed letter by SMART CHOICE TV calling on the Subscriber to remedy the breach;
8.2.3. commits an act of insolvency in terms of an act of the Republic of South Africa;
8.2.4. is a company or close corporation and is deregistered or liquidated or in the case of a company placed under judicial management, whether provisionally or finally;
8.2.5. is a natural person and he or any one of his partners is provisionally or finally sequestrated, or he or any one of his partners becomes subject to an administration order;
8.2.6. ceases its business activities for longer than a period of 60 (sixty) consecutive days, unless forced to do so by force majeure; or
8.2.7. any surety in favour of SMART CHOICE TV for the payment of the Subscription in terms hereof, give SMART CHOICE TV notice of the termination of its surety ship;
8.4. SMART CHOICE TV shall be entitled to recover all legal expenses, including legal expenses (on an attorney-and-own client scale) incurred and arising directly or indirectly out of this Agreement.
9. DOMICILIUM AND NOTICES
9.1. The Subscriber and SMART CHOICE TV hereby choose domicilium citandi et executandi for all purposes of and in connection with this Agreement at the physical address ,e-mail and fax as set forth on the face hereof. SMART CHOICE TV shall be entitled to give any notice in terms of this Agreement by e-mail and or fax. Initial PAGE 4 44 4
9.2. The Subscriber warrants the accuracy of all information furnished by or on behalf of the Subscriber in terms of or pursuant to this Agreement and the signed Product Addendum/s. The Subscriber shall forthwith notify SMART CHOICE TV in writing of any changes from time to time in the information set out in the schedule of the face hereof and on the signed Product Addendum/s.
9.3. The Subscriber undertakes to abide by SMART CHOICE TV’s acceptable use policy.
9.4. The Subscriber shall not be entitled to migrate to a lower tariff plan as offered by the Network Operators during the stipulated contract stated on the face hereof and/or on the Product Addendum/s unless recommended and agreed to by SMART CHOICE TV.
10. WHOLE AGREEMENT
This Agreement in conjunction with the signed Product Addendum/s constitutes the sole record of the Agreement between the parties in regard to the subject matter thereof. Neither party shall be bound by any representation, express or implied term, promise or the like not recorded herein and in the Product Addendum/s or reduced to writing and signed by the parties or their representatives. No addition or variation of this Agreement and the attached Product Addendum/s shall be of any force or effect unless in writing and signed by or on behalf of the parties. No indulgence that SMART CHOICE TV may grant to the Subscriber shall constitute 10.1. a waiver of any of SMART CHOICE TV’s rights. In this agreement the singular shall include the plural.
10.2. This Agreement and the signed Product Addendum/s shall in all respects be governed by and construed in connection with this Agreement and the signed Product Addendum/s shall be determined in accordance with such laws.
11. SEVERABILITY
11.1. Should any provision of this Agreement and the signed Product Addendum/s be rendered unlawful then that unlawful provision only shall be invalid, with effecting or invalidating any of the remaining provisions of this Agreement and the signed Product Addendum/s, which shall continue to be of full force effect.
12. GENERAL
12.1. SMART CHOICE TV is entitled to cede its rights and/or to delegate its obligations arising from this agreement and/or assign this agreement, wholly or partly, to any third party. The Subscriber shall not be entitled to cede or delegate his rights and obligations arising out of this contract, unless accepted in writing by the credit control manager or a director of SMART CHOICE TV.
12.2. The Subscriber warrants the accuracy of all information furnished by or on behalf of the Subscriber in terms of or pursuant to this Agreement and the signed Product Addendum/s. The Subscriber shall forthwith notify SMART CHOICE TV in writing of any changes from time to time in the information set out in the schedule of the face hereof and on the signed Product Addendum/s.
12.3. The Subscriber undertakes to abide by SMART CHOICE TV’s acceptable use policy.
12.4. The Subscriber shall not be entitled to migrate to a lower tariff plan as offered by the Network Operators during the stipulated contract stated on the face hereof and/or on the Product Addendum/s unless recommended and agreed to by SMART CHOICE TV.
13. JURISDICTION
13.1. The parties consent, in terms of Section 45 of Magistrate’s Court Act 32 of 1944, to the jurisdiction of the Magistrate’s Court of any district having jurisdiction over it by virtue of Section 28(1) of the said Act, in respect of any action or legal proceedings in connection with this Agreement, notwithstanding the fact that the amount involved in such action or proceeding may be beyond the jurisdiction of a Magistrate’s Court.
13.2. SMART CHOICE TV
however reserves the right to institute action or proceeding in the High Court.
14. FORCE MAJEURE If SMART CHOICE
TV is prevented from or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement and the signed Product Addendum/s due to any reason or cause beyond the control of SMART CHOICE TV or by reason of force majeure, SMART CHOICE TV shall be relieved of its obligations in terms of this Agreement and the relevant signed Product Addendum/s
