ECN’s general term and conditions applicable to the provision of electronic communications network services and electronic communications services.
These General Terms and Conditions are applicable to ECN’s supply and the Subscriber’s use of all Services, Facilities, Equipment and Products.
These General Terms and Conditions, Product Specific Terms and the Service Confirmation Schedule will govern the relationship between the Subscriber and ECN.
Updated copies of these General Terms and Conditions are available on ECN’s Website or from ECN’s head office or branch offices during business hours.
In these General Terms and Conditions, the following terms will have the meanings given to them below unless the context clearly shows that a different meaning was intended, and similar words and expressions will have similar corresponding meanings:
- 1.1 “Acceptable Use Policy” means the policy located at https://www.ecn.co.za which specifies to Subscribers and users of the Service and the ECN Website and what activities and online behaviour are considered an unacceptable use of the service/website;
- 1.2 “Act” means the Electronic Communications Act 36 of 2005;
- 1.3 “Affiliate” means any entity that now or in the future, directly or indirectly, controls, is controlled by or is under common control with a Party. For the purposes of this definition, “control” shall mean the ownership of more than 50% (fifty per cent) of the:
- 1.3.1 voting power to elect the directors of such entity; or
- 1.3.2 equity or ownership interest in such entity;
- 1.4 “Aggregate Fee” means the aggregate of the fees specified in the Service Confirmation Schedule including (i) Installation Fee, (ii) Reconnection Fee, (iii) Equipment Fee, and (iv) Service Fee and any other charges relating to the Services, access to ECN’s Network, Equipment and any other services provided by ECN;
- “Agreement” means the agreement between ECN and the Subscriber comprising (i) these General Terms and Conditions, (ii) any Product Specific Terms(iii) terms and conditions applicable to the sale and/or lease of Equipment, and (iii) the Service Confirmation Schedule collectively;
- “Authority” means the Independent Communications Authority of South Africa or its successor in title and shall include any body which assumes its functions;
- 1.7 “National Operations Centre” means ECN’s national operators centre which can be accessed by dialling 0879400040;
- 1.8 “Code of Conduct” means ECN’s code of conduct developed in terms of the Regulations and available from ECN’s offices and on the ECN Website;
- 1.9 “Deposit” means the amount payable by the Subscriber in terms of clause 6.2;
- 1.10 “ECN” means ECN (Pty) Ltd, a company incorporated under South African law with registration number 2004/035189/07;
- 1.11 “ECN’s Network” means ECN’s Electronic Communication Network owned and/or operated by ECN;
- 1.12 “ECN’s RICA Requirements” means ECN’s verification and authentication requirements in terms of RICA;
- 1.13 “ECN’s Website” means www.ecntelecoms.com;
- 1.14 “Electronic Communications and Transactions Act” or “ECATA” means the Electronic Communications and Transactions Act 25 of 2002;
- 1.15 “Electronic Communications Network” has the same meaning as given to that term in the Act;
- 1.16 “Electronic Communications Network Service” has the same meaning as given to that term in the Act, and “ECN Service” has the same meaning;
- 1.17 “Electronic Communications Service” has the same meaning as given to that term in the Act, “EC Service” has the same meaning;
- 1.18 “Equipment” means any device used to access the Services;
- 1.19 “Equipment Fee” means, if applicable, the rental and/or purchase price for Equipment payable by the Subscriber to ECN as specified in the Service Confirmation Schedule;
- 1.20 “Facility” has the same meaning given to an “electronic communications facility” in the Act;
- 1.21 “Force Majeure Event” means any cause beyond a Party’s reasonable control, including, without limitation, acts of war, acts of God, earthquake, hurricanes, flood, fire or other similar casualty, embargo, riot, sabotage, strikes, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation Facilities, failure of power, restrictive governmental laws or Regulations, court orders, failure of the Internet or any other reason of a like nature not resulting from the actions or inactions of a Party;
- 1.22 “General Terms and Conditions” means this document, which sets out the standard terms and conditions applicable to the supply of Services by ECN to its Subscribers;
- 1.23 “Governmental Authority” means any institution or functionary exercising public power or performing a public function in terms of legislation;
- 1.24 “Installation Fee” means the once-off fee stipulated in the Service Confirmation Schedule that is payable (in a lump sum or in instalments) by the Subscriber to ECN for installing Facilities or Equipment on behalf of the Subscriber, for transferring Facilities or Equipment or from one location to another location, or for installing any item of Equipment;
- 1.25 “Intellectual Property” means, in relation to either Party, inventions, patents, utility models, designs, trademarks and service marks, including any trade, brand or business names (whether registered or unregistered), domain names, registered designs, design rights, copyright, rights in the nature of or related to copyright (including any application or registration where applicable in respect of the foregoing) and any rights or forms of protection of a similar nature and having an equivalent or similar effect to any of them which may exist anywhere in the world;
- 1.26 “Licences” means the licences issued to ECN by the Authority as amended, renewed or replaced from time to time;
- 1.27 “Parties” means ECN and the Subscriber, and “Party” means either one of them as the context indicates;
- 1.28 “Product” means any product packages made available to the Subscriber under ECN’s brand through the bundling of any one or more Services or Equipment either alone or together with any Content, other Services, Facilities, Equipment and/or Products;
- 1.29 “Product Specific Terms” means the standard terms and conditions applicable to the supply of any Product by ECN to its Subscribers;
- 1.30 “Reconnection Fee” means the once-off fee payable by the Subscriber to ECN for reconnecting any Service or element thereof that has been suspended in terms of clause 15;
- 1.31 “Regulations” means all and any regulations in force prescribed by the Authority;
- 1.32 “RICA” means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002;
- 1.33 “Service Commencement Date” means, in respect of each Service ordered by the Subscriber, the date that ECN starts supplying the Services and the Subscriber begins using the relevant service other than for testing purposes;
- 1.34 “Services” means any and all EC Services and ECN Services provided by ECN to the Subscriber in terms of these General Terms and Conditions, but excluding the supply, installation, and maintenance of Equipment;
- 1.35 “Service Fee” means the charges for access to ECN’s Network and/or using the Services, as the case may be, charged by ECN to the Subscriber as specified in the Service Confirmation Schedule;
- 1.36 “Service Levels” means the minimum service levels for the provision of the Services prescribed in the Regulations from time to time or other more onerous service levels agreed between the Parties in the Service Confirmation Schedule;
- 1.37 “Service Confirmation Schedule” means a schedule/s substantially in the form of Annexure A hereto issued by ECN containing particulars, amongst other things, of the applicable tariffs and Services (including any Facilities and Equipment) to be provided by ECN and any specific terms and conditions relating thereto;
- 1.38 “Subscriber” means the person who has ordered the Services, whose name appears on the signed Service Confirmation Schedule and who is liable for the payment of the Aggregate Fees and for compliance with the Agreement and any of its successors or permitted assignees;
- 1.39 “Subscriber Premises” means the location or locations specified by in the signed Subscriber Confirmation Schedule and to which the Services are to be delivered;
- 1.40 “Security” means that security for the payment of Aggregate Fees in the form of a deed of suretyship from the Subscriber’s principle shareholders, a signed debit order, a Deposit or such other form required by ECN; and
- 1.41 “Term” means the period of time stipulated in the Service Confirmation Schedule/s, during which the Parties are obligated to perform under these General Terms and Conditions.
In the Agreement –
- 2.1 an expression which denotes (i) any gender includes the other genders; (ii) a natural person includes a juristic person and vice versa; (iii) the singular includes the plural and vice versa;
- 2.2 where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
- 2.3 any reference to “days” must be construed as being a reference to calendar days unless qualified by the word “business” in which instance a “business day” will be any day other than a Saturday and a Sunday and/or a public holiday in the Republic of South Africa as published in the Government Gazette. Any reference to “business hours” must be construed as being the hours between 08h00 and 17h00 on any business day;
- 2.4 any term requiring agreement between the Parties shall be taken to mean agreement in writing;
- 2.5 terms other than those defined within these General Terms and Conditions will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communication technology industry will be interpreted in accordance with their generally accepted meanings;
- 2.6 where any provision of the Agreement requires either Party to perform any act in writing, this requirement will only be satisfied if such performance is made in a written printed-paper based form or in an electronic form (such as email); and
- 2.7 clause headings are included for convenience only and are not to be used in the interpretation of the Agreement.
3. Ordering Procedure
- 3.1 The Subscriber may order new Services or Equipment or change existing Services or Equipment by submitting a request to ECN by telephoning its National Operations Centre or emailing firstname.lastname@example.org specifying the new and/or changed Services or Equipment required.
- 3.2 Upon receipt of the request, ECN will consider the contents of thereof and, if it is willing and able to provide the Services or Equipment required, issue a Service Confirmation Schedule to the Subscriber.
- 3.3 Prior to issuing a Service Confirmation Schedule, ECN may require that the Subscriber provide Security.
- 3.4 The Subscriber shall within 5 (five) days of receipt of the Service Confirmation Schedule, confirm its acceptance of the terms contained in therein by signing the Service Confirmation Schedule and returning it to ECN. Should the Subscriber not return the signed Service Confirmation Schedule as provided for in this clause 3.4 the Service Confirmation Schedule issued by ECN will lapse.
- 3.5 Each Service Confirmation Schedule, once accepted by the Subscriber as provided for in clause 3.4, shall constitute a separate agreement and shall be governed by these General Terms and Conditions save where expressly agreed otherwise in the particular Service Confirmation Schedule.
- 3.6 No terms and conditions contained in a Subscriber’s request for Services shall be of any force or effect unless contained in the Service Confirmation Schedule. No amendments to a Service Confirmation Schedule as issued by ECN shall be of any force or effect unless countersigned by ECN.
- 3.7 Except where the law provides otherwise, ECN may refuse to supply any Service or Equipment specified in any Subscriber request without giving reasons therefor. Without limiting the generality of this, ECN may refuse to provide a Service if (i) in ECN’s opinion, the Subscriber is not creditworthy or (ii) the Subscriber fails to provide the Security required by ECN.
ECN will not commence provision of the Service until the Subscriber has met the ECN’s RICA Requirements. The Subscriber agrees that it will provide ECN with the necessary documentation and information required in terms of RICA.
5. Credit Assessment and Referencing
- 5.1 ECN may carry out a general credit check on the Subscriber at any time after the Subscriber has submitted a request for Services or at any time during the Subscriber’s use of the Services. The Subscriber authorises ECN to conduct all reasonable credit checks and searches to establish its creditworthiness and undertakes to provide all documents reasonably required by ECN.
- 5.2 ECN may set a credit limit for the Subscriber. If the Subscriber reaches or exceeds the credit limit set by ECN at any time during the use of the Services, ECN may suspend the Services until the Subscriber has settled all outstanding amounts. ECN may also alter, if it deems appropriate, the Subscriber’s credit limit from time to time.
- 6.1 ECN may require the Subscriber to provide Security in a form and manner specified by ECN:
- 6.1.1 before ECN issues a Service Confirmation Schedule;
- 6.1.2 in order for ECN to continue to supply any Services if the Subscriber has not complied with the payment terms set out in these General Terms and Conditions; or
- 6.1.3 in order for ECN to restore any Services that have been suspended or terminated in terms of these General Terms and Conditions.
- 6.2 If a Deposit is made by the Subscriber, ECN may draw upon the Deposit at any time to recover any amounts in respect of Aggregate Fees which are due and unpaid. In such an event, the Subscriber will be required immediately to pay the amount deducted from the Deposit failing which ECN may suspend the provision of Services until the Subscriber pays the amount deducted. ECN shall not be deemed to have given up (waived) any of its rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts.
- 6.3 If the Subscriber has paid a Deposit, ECN may credit the Subscriber’s account with interest in respect of the Deposit held at a rate to be determined by ECN from time to time.
7. Terms and Duration
- 7.1 The Agreement in respect of any particular Services ordered (including any Facility or Equipment required in order to render the Service) and which ECN has agreed to provide, will start on the Service Commencement Date and will continue, subject to clause 16 below –
- 7.1.1 for the Term specified in the Service Confirmation Schedule (if the Term is specified in the Service Confirmation Schedule) or until the Agreement is terminated in terms of clause 16 (whichever is the earlier);
- 7.1.2 indefinitely (if there is no fixed Term stipulated in the Service Confirmation Schedule).
- 7.2 If the Service (including any Facility or Equipment required in order to render the Service) is to be provided for a fixed term which is specified in the Service Confirmation Schedule and if ECN permits the Subscriber to continue using the Service (including any Facility or Equipment required in order to render the Service) after the end of that term, then the Agreement in respect of each of the Services concerned (including any Facility or Equipment required in order to render the Service) will continue indefinitely on the same terms and conditions as set out in the Service Confirmation Schedule subject to the right of either Party to provide 30 (thirty) days written notice of termination.
8. Provision and Maintenance of the Services
- 8.1 ECN will abide by its Key Commitments to the Subscriber and to its Code of Conduct and will provide the services in accordance with the service levels specified in the Regulations.
- 8.2 Subject to clause 21.3 and in the absence of any abuse or misuse of the Services by the Subscriber, ECN will make the Services available to the Subscriber in accordance with the Service Levels.
- 8.3 A Service will be deemed to be in good working order and in compliance with the Service Levels until such time as a fault is reported to ECN as provided for in clause 20.1.
- 8.4 ECN will attend to reported faults during business hours. ECN will endeavour to restore the Service within the shortest possible time.
- 8.5 If ECN determines that a fault has been caused by any Equipment (i) belonging to the Subscriber or (ii) installed at the Subscriber Premises that is not covered by the manufacturer’s warranty, ECN may charge the Subscriber to repair the fault. ECN may charge the Subscriber to repair any fault arising as a result of any person making unauthorised and/or improper use of the Services.
- 8.6 ECN will not be liable if the Service becomes unavailable as a result of:
- 8.6.1 any person making unauthorised and/or improper use of the Services with or without the Subscriber’s knowledge and/or consent;
- 8.6.2 any person causing damage to or stealing any element of ECN’s Network with or without the Subscriber’s knowledge and/or consent; or
- 8.6.3 the occurrence of any event beyond the reasonable control of ECN.
- 9.1 The Subscriber may lease and/or purchase Equipment from ECN and its election in this regard must be specified in the Schedule. The terms and conditions applicable to the lease of and purchase of Equipment are available ECN’s website and from its offices.
- 9.2 ECN may, at its discretion, and to the extent that it is a requirement for the type of Service contracted for, supply, install and/or maintain Equipment which is purchased or leased from it.
- 9.3 Where any item of Equipment is not provided by ECN, the Subscriber must supply, install and/or maintain the Equipment used, unless otherwise agreed with ECN. ECN will only supply, install and maintain Equipment that is type approved by the Authority in terms of the Act.
- 9.4 The Subscriber must ensure that all Equipment that is not provided by ECN and that is installed at the Subscriber Premises has been type approved by the Authority in terms of the Act. ECN may suspend the provision of any Service to the Subscriber where the use Equipment that has not been authorised by the Authority until such time as the Equipment has been properly approved, removed or replaced.
- 9.5 The Subscriber must ensure that any Equipment installed at the Subscriber Premises, which has not been leased, purchased from and/or installed by ECN, does not interfere with or degrade the operation of ECN’s Network or any component thereof.
- 9.6 Where the Subscriber purchases Equipment from ECN then, except to the extent required by law, the manufacturer’s warranty will be the only warranty that will apply to the Equipment. All other terms, conditions, warranties and representations are excluded. ECN will only pay for the costs of repairing the Equipment if the Subscriber returns the Equipment to ECN and if the damage is covered by the warranty provisions, failing which the Subscriber will pay for the cost of the repairs.
10. Installation of Equipment and Facilities
ECN will use reasonable endeavours to install the Equipment and Facilities on the installation date requested by the Subscriber, provided that the requested installation date is reasonable in the circumstances. ECN will not however be liable for failure to meet the requested installation date for any reason.
11. Subscriber Premises
- 11.1 The Subscriber must allow ECN to access and use the Subscriber Premises to the extent required by ECN in order to install, inspect, maintain or remove any Facilities or Equipment which are necessary to provide Services to the Subscriber.
- 11.2 If the Subscriber is not the owner of the Subscriber Premises where the Service is required, the Subscriber must obtain any permission which may be required from the owner of such premises for ECN to install, inspect, maintain or remove any Facilities or Equipment at/from such premises. The Subscriber indemnifies ECN against damages or claims resulting from the failure to obtain such permission.
- 11.3 The Subscriber must ensure that there is a suitable electrical power supply as required for the proper functioning of the Services and/or the Equipment. The cost of providing the power supply and all charges for use of power are for the Subscriber’s account.
- 11.4 If, in any building where ECN has agreed to install a Facilities and/or Equipment, no conduit-pipes are available to install the Facilities and/or Euqipment necessary to provide the Service, ECN may at its discretion:
- 11.4.1 refuse to provide the Service in that building or in any part thereof until such conduit-pipes or other Facilities have been so installed; or
- 11.4.2 provide the Service and charge the Subscriber an Installation Fee for any additional costs incurred in installing the Service, which in ECN’s opinion would not have been incurred if conduit-pipes or other Facilities had been installed in the building in question.
- 11.5 The Subscriber must ensure that the Subscriber Premises are safe for ECN to perform its obligations in terms of these General Terms and Conditions and must comply with all laws and Regulations relating to occupational health and safety on the Subscriber Premises.
- 11.6 If the Subscriber breaches any of the provisions of this clause 11, and if ECN is unable to install or continue to provide Services as a result, it must pay ECN:
- 11.6.1 all Aggregate Fees for the time that the Services are unavailable, even though the Services were not provided during that time; and
- 11.6.2 any wasted costs incurred by ECN.
- 11.7 Except for emergency repairs, which require no advance notice, ECN will notify the Subscriber at least five (5) days in advance of any regularly scheduled maintenance that will require ECN to have access to the Subscriber Premises.
12. Use of Services
- 12.1 The Subscriber must comply with all statutory and Regulatory provisions and requirements relating to the provision and use of the Services.
- 12.2 The Subscriber may not resell capacity on any Facility obtained from ECN or cede or assign its rights to use a Facility, Equipment or Service =, or sublet or otherwise part control of it, without ECN’s written consent.
- 12.3 ECN will not be liable to the Subscriber or any other person for interruption of Service or for any other loss, cost or damage caused or related to improper use or maintenance of the Facilities and/or Equipment by the Subscribers, or third parties to whom the Subscriber has provided access to the Facilities and/or Equipment.
- 12.4 The risk of loss or damage to any Facilities or Equipment provided by ECN in connection with the Services passes to the Subscriber upon its delivery and shall at all times vest exclusively with the Subscriber. Notwithstanding the passing of the risk, the ownership of Facilities or Equipment leased from ECN remains vested in ECN.
- 12.5 The Subscriber must:
- 12.5.1 comply with any instructions issued by ECN which concern its use of the Services, Equipment, Facilities or matters related thereto, and which may be required to ensure the satisfactory provision of the Services, to protect the integrity of ECN’s Network, or to deal with emergencies; and
- 12.5.2 provide ECN with all information relating to its use of the Services, Equipment, Facilities or matters related thereto that ECN may reasonably require from time to time.
- 13.1 ECN reserves the right to change any number within the existing numbering plan, code, password, user identity or name allocated by ECN from time to time for use in connection with the Services and ECN is not liable for any loss or damage (including consequential damages) arising from such change however arising.
- 13.2 The Subscriber is entitled to port its number in according with Regulations governing number portability.
14. Charging and Billing
- 14.1 Fees
- 14.1.1 The Subscriber must pay ECN all the Aggregate Fees shown on the account which ECN will send to the address specified in the Service Confirmation Schedule. In addition, ECN may charge a fee for rendering any other miscellaneous Services requested by the Subscriber as agreed between the Parties from time to time.
- 14.1.2 ECN may also, at its discretion, charge the Subscriber for any wasted costs associated with a technician visiting the Subscriber’s premises at an agreed time and not being able to again access.
- 14.1.3 ECN may increase the Aggregate Fees to reflect any increase in ECN’s costs in providing the Services which is due to any factor beyond ECN’s control including, without limitation, increases in fees or charges by other service providers, foreign exchange fluctuations, taxes, levies or increased costs of third party inputs. ECN may increase the Aggregate Fees on the 1st day of March of each year by the Consumer Price Index published by Statistics SA core inflation rate for the month of February for that year.
- 14.1.4 A certificate signed by a director of ECN, whose appointment and authority need not be proved, shall, unless the Subscriber can show the amount stated therein is incorrect, be proof of any amount owing by the Subscriber to ECN under this Agreement
- 14.2 Payment
- Unless specified otherwise in the Service Confirmation Schedule, Aggregate Fees will be invoiced monthly in arrears and all Aggregate Fees shall be due and payable without demand within 14 (fourteen) days after date of invoice (“the Due Date”). Any amounts not paid on Due Date may, at ECN’s discretion, attract interest at Prime Rate from the Due Date until date of actual payment, both days included.
- 14.3 Inbound Revenue
- ECN derives revenue from calls terminating on the ECN Network. The Subscriber shall earn inbound call revenue as per the Service Confirmation Schedule. Inbound call revenue will only accrue on inbound calls routed to ECN numbers allocated to the Subscriber (including Subscriber geographic numbers successfully ported to ECN). Inbound call revenue will be rebated to the Subscriber on a monthly basis and offset against any amounts owing by the Subscriber to ECN.
- 14.4 Disputed invoices
- ECN’s invoices will be deemed to be correct unless the Subscriber raises a dispute or query within ten (10 ) days of receiving it. If the Subscriber disputes or queries an invoice it must submit a written claim for the disputed amount, fully documenting the basis of the claim and with sufficient evidence and documentation to support it. The Subscriber waives the right to dispute or query any charges that is does not dispute or query within the specified time frame. The Subscriber remains liable to pay all undisputed amounts or not subject to a query (unless the Parties otherwise agree in writing). Amounts disputed by the Subscriber which prove to be payable may, at ECN’s discretion, bear interest as provided for in clause 14.2 from Due Date until date of actual payment.
- 15.1 ECN may suspend a Service and, at its discretion, disconnect the Subscriber’s Equipment from ECN’s Network in any of the following circumstances:
- 15.1.1 for modifications to, or planned maintenance of ECN’s Network and, in this regard, ECN will use its reasonable endeavours to inform the Subscriber of any planned interruption to Services, and to restore the Services as soon as is reasonably practicable;
- 15.1.2 if the Subscriber fails to pay any portion of the Aggregate Fees for the Service to ECN by the Due Date and further fails to pay the Aggregate Fees for that Service within 15 (fifteen) days of ECN’s notice to do so;
- 15.1.3 if the Subscriber or any of its employees, agents or contractors (in ECN’s reasonable opinion):
- 188.8.131.52 is engaged in conduct that is prohibited in terms of the Agreement, is contrary to any law applicable to the Service or is contrary to the Acceptable Use Policy; or
- 184.108.40.206 does anything or fails to take any steps which could directly or indirectly damage ECN’s network (or networks connected to it) or inhibits ECN’s ability to provide the Services.
- 15.2 Even where a Service has been suspended, the Subscriber will remain liable for all charges and fees due under these General Terms and Conditions throughout the period during which the Service is suspended. If ECN incurs any expense in remedying the effects of the Subscriber’s unlawful or prohibited conduct, such expense shall be for the Subscriber’s account and shall be payable on demand.
- 16.1 Termination by the Subscriber
- 16.1.1 The Subscriber may terminate the Agreement in respect of a particular Service upon 20 (twenty) business days’ written notice to ECN if:
- 16.1.2 ECN breaches a material provision of these General Terms and Conditions and, if such breach is capable of remedy, ECN fails to remedy the breach within 20 (twenty) business days after receipt of written notice from the Subscriber asking ECN to do so; or
- 16.1.3 any bankruptcy, insolvency, administration, liquidation, receivership or winding-up proceedings are commenced in respect of ECN.
- 16.2 Termination by ECN
- 16.2.1 Subject to clauses 16.2.2 and 16.2.3, ECN may terminate the Agreement in respect of a particular Service or Services upon 20 (twenty) business days’ written notice if:
- 220.127.116.11 the Subscriber breaches any provision of these General Terms and Conditions
- 18.104.22.168 the Subscriber or has contravened:
- 22.214.171.124.1 any notices or rules communicated by ECN to the Subscriber from time to time relating to the use of, access to or security measures relating to the Services;
- 126.96.36.199.2 the Act, any regulation or any other law, rule, regulation or policy of any Governmental Authority relating to the Services or to the Subscriber’s use thereof;
- 188.8.131.52.3 ECN determines that the Subscriber has engaged in conduct that has caused or may cause damage to ECN’s Network or any third parties;
- 184.108.40.206 any bankruptcy, insolvency, administration, liquidation, receivership or winding-up proceeding are commenced against the Subscriber or its Affiliates; or
- 220.127.116.11 ECN receives any direction, notification or instruction from any Governmental Authority to suspend or terminate the provision of the Services to the Subscriber or generally (where the reason for this is not due to the fault or negligence of ECN).
- 16.2.2 In the circumstances specified in clauses 18.104.22.168 and 22.214.171.124 above only, ECN will give the Subscriber at least 20 (twenty) business days’ written notice to remedy the breach before terminating the Agreement in respect of any particular Service in terms of this clause 16.2 provided however that this will not apply if ECN determines that the breach is interfering with, or has the potential to interfere with the operation or maintenance of ECN’s Network or ECN’s Facilities or with ECN’s other subscribers’ use thereof, in which case ECN may terminate the Agreement in respect of any particular Service immediately without further notice to the Subscriber.
- 16.2.3 If the reason for the termination relates to non-payment of the Aggregate Fees for a Service or any portion thereof, ECN will give the Subscribers at least 20 (twenty) business days’ written notice to make payment before terminating the Agreement in respect of a particular Service.
- 16.2.4 ECN will only terminate the particular Service to which the non-payment relates, where (i) the Subscriber has failed to make payment by the Due Date on 3 (three) occasions in any period of 3 (three) consecutive months and/or (ii) there has been an instance of fraud. In such instances, ECN may terminate the Agreement in relation to any or all of the other Services being provided to the Subscriber, and not only the Service to which the non-payment relates.
17. Consequences of Termination
- 17.1 If the Subscriber has entered into an Agreement for a fixed Term, and the Subscriber cancels the Agreement prior to the expiry of the fixed term or ECN terminates the Agreement in respect of a particular Service prior to the expiry of the Term in terms of these General Terms and Conditions, the Subscriber will be required to pay any or all of the following amounts to ECN, as applicable:
- 17.1.1 the Aggregate Fees payable for any Service provided to the Subscriber up to the date of termination of the Agreement in respect of that Service;
- 17.1.2 any fees or charges relating to any Equipment supplied, installed or maintained by ECN that are due and payable as at the date of termination of the Service;
- 17.1.3 any additional expenses not specified in this clause which have been incurred by ECN in connection with the provision of the Services up to and including the date with effect from which the Services were suspended or the Agreement in respect of the Services was terminated;
- 17.1.4 the balance outstanding for Equipment (on instalment sale or lease as is applicable) in respect of the Agreement that is terminated; and
- 17.1.5 any other amount stipulated in the Service Confirmation Schedule as a early termination fee.
- 17.2 After termination of the Agreement in relation to a particular Service for whatever reason ECN may enter the Subscriber Premises to remove its Facilities and leased Equipment; and
- 18.1 In the course of performing its obligations under these General Terms and Conditions, ECN will take all reasonable precautions to ensure the safety of the Subscriber, and the Subscriber’s property against damage as a result of the provision of the Services, and/or provision installation or maintenance of Facilities and/or Equipment.
- 18.2 Any work in connection with the provision, installation or maintenance of any Facility or Equipment will be carried out by ECN in such a way as to avoid, as far as reasonably possible, loss or inconvenience to the Subscriber or the public, and, on completion of such work, any property of the Subscriber or land which may have been disturbed shall be restored to the same condition as that in which it was before the provision of the Services or installation or maintenance of Facilities or Equipment.
- 18.3 ECN will only be liable for actual damages or injury that may be caused to any work or property of the Subscriber where ECN fails to comply with its obligations in terms of clauses 18.1 and 18.2. Such liability shall be limited to the total Service Fees paid by the Subscriber at the time that the damage or injury occurs.
- 18.4 Except as provided in 18.3, ECN will not incur any liability for any loss or damage arising out of the provision of the Services or installation or maintenance of Facilities or Equipment, whether direct or indirect, consequential or contingent and in particular shall not be liable for any financial loss or loss of profits, income, contracts, business or goodwill.
- 18.5 ECN shall not be liable for any costs arising out of the use of the Services or for any cost incurred by the Subscriber or its clients as a result of a modification to ECN’s Network, a Service or any element thereof, or for an interruption to the Service, for any reason whatsoever, nor shall ECN be liable for any costs or damages arising out of the termination of the Agreement.
- 18.6 ECN assumes no responsibility for the integrity, correctness, retention or content of information transported via ECN’s Network and will not be liable.
- 18.7 ECN reserves the right to modify ECN’s Network at any time and will not bear any liability to the Subscriber, for any claim for damages, or the cost of changes to, or replacement of any Equipment or any portion thereof, that may be necessitated by such modification to ECN’s Network. ECN will, however, use its best endeavours to notify the Subscriber of any modification to ECN’s Network which could affect the Subscriber.
The Subscriber agrees to indemnify and hold ECN harmless against any losses, damages, expenses and/or costs that the Subscriber may incur as a result of claims and/or actions by third parties (including dependants, clients, employees, agents and for any loss sustained by such third parties) arising from the provision of the Services and the provision, installation and maintenance of any Facility and/or Equipment in terms of these General Terms and Conditions.
20. Warranty / Disclaimer
ECN warrants that the Services will be provided in a professional manner consistent with industry standards, the Licences and applicable law. Save as expressly set out in the Agreement, ECN makes no representations or warranties whatsoever as the condition of the Equipment or the fitness of the Services for any purpose whatsoever.
21. National Operations Centre and Complaints Procedure
- 21.1 The Subscriber may direct any queries and/or problems that it may have in connection with the Services or any item of Equipment that has been supplied, installed or maintained by ECN or report any faults to ECN by contacting the ECN contact centre, 24 hours a day, seven days a week, by:
- 21.1.1 dialling 087940004; or
- 21.1.2 sending an e-mail to email@example.com.
- 21.2 If the Subscriber does not receive a response to the mail within 24 hours of sending it, it can contact the ECN complaints desk during the hours of 08:00 and 17:00 on any business day, by:
- 21.2.1 dialling [INSERT A NUMBER FOR COMPLAINTS]; or
- 21.2.2 sending an e-mail to firstname.lastname@example.org.
- 21.3 The ECN’s complaints desk will resolve complaints within 14 (fourteen) business days.
- 21.4 If ECN does not resolve a complaint to the reasonable satisfaction of the Subscriber within 14 (fourteen) business days, then the Subscriber may complain to the Authority.
- 22.1 Privacy
- 22.1.2 The Subscriber agrees that ECN may disclose certain personal information to ECN’s service providers, including credit card verification providers and credit bureaus (in order to perform credit checks), banks (to process transactions), consumer research companies (that assist ECN to understand consumer interests by conducting surveys), and collection agencies (if the Subscriber has not paid any account on time).
- 22.1.3 ECN may also be required to disclose the Subscriber’s personal information by law.
- 22.1.4 The Subscriber must notify ECN in writing immediately if there is any change to its information.
- 22.2 Content on the Internet and on ECN’s Network
- 22.2.1 Except as provided for in RICA, ECN is not responsible for monitoring Content on ECN’s Network or Content on the Internet accessed using ECN’s Network. However, ECN may take measures to ensure security and continuity of the Services on ECN’s Network within ECN’s discretion, including the identification and blocking or filtering of Internet traffic.
- 22.2.2 The Subscriber is responsible for maintaining the security of its internal network from unauthorised access. ECN will not be liable for unauthorised access to the Subscriber’s network or other breaches of the Subscriber’s network security.
- 22.3 Force Majeure Events
- Except for the Subscriber’s payment obligations under the Agreement, neither Party will be liable in any way to the other Party for any performance that is prevented or hindered due to a Force Majeure Event. If ECN is unable to provide the Services for a period of more than 30 (thirty) consecutive days on account of a Force Majeure Event, then either Party may cancel the Agreement as it pertains to the Service concerned upon written notice to the other Party, and both Parties shall be released from any further future liability under that part of the Agreement.
- 22.4 Governing law
- The Agreement will be governed by South African law.
- 22.5 Severability
- Should any provision of these General Terms and Conditions be held by a court to be invalid, void or unenforceable, the offending provision will be struck out of these General Terms and Conditions but the remainder of these General Terms and Conditions shall remain legal, valid and binding.
- 22.6 Survival
- Upon termination or expiration of the Agreement any terms and conditions that are intended by the nature to survive the termination or expiration will survive the expiration/termination of the Agreement for any reason
- 22.7 Waiver
- The failure by either Party to exercise or enforce any right conferred by these General Terms and Conditions will not be deemed to be a waiver of any such right not to operate so as to bar the exercise or enforcement of any such or other right on any later occasion.
- 22.8 Cession and assignment
- The Subscriber may not cede or assign its rights and obligations under these General Terms and Conditions to a third party without first obtaining ECN’s written consent. ECN may allow its rights or obligations under these General Terms and Conditions to be exercised or performed in whole or in part by a third party at any time.
- 22.9 Notices
- Any notice or communication required or permitted to be given in terms of these General Terms and Conditions may be delivered by hand, sent by post by or facsimile (with confirmation of delivery) at the addresses given in the Service Confirmation Schedule or at such other address as may hereafter be furnished. Such notices or communications will be deemed to have been received at the time of delivery (in the case of hand deliveries or transmissions by facsimile) or within two (2) weeks after the date of posting (in the case of postal deliveries). Chapter III of the ECATA will not apply to these General Terms and Conditions
- 22.10 Relationship of Parties
- These General Terms and Conditions will not establish any partnership, joint venture, employment relationship, franchise, agency or any like relationship between the Parties.
- 22.1 Language
- Unless otherwise reasonably requested by the Subscriber, these General Terms and Conditions and all documents, notices, correspondence and legal proceedings arising from or relating to it will be drawn up in English. The Subscriber may request that documents be made available in Afrikaans or Zulu.
- 22.2 Entire Agreement
- The Agreement constitutes the sole agreement of the Parties relating to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between the Parties are hereby superseded insofar as they relate to the subject matter hereof.
- 22.3 Modifications to the Agreement
- 22.3.1 ECN may amend or replace these General Terms and Conditions from time to time as it may deem necessary in its sole and absolute discretion. All and any such modifications to the Agreement will be promptly posted on ECN’s Website.
- 22.3.2 The Subscriber may terminate the Agreement if it does not accept any amendments or changes made by ECN to the General Terms and Conditions within thirty (30) days of the amendment or change being posted on ECN’s Website. This does not apply in the case of any changes to the rates charged by ECN in respect of any Aggregate Fees.
- 22.4 Any amendments to the Service Confirmation Schedule must be agreed to in writing and signed by both the Parties.
- 22.5 Precedence
- In the event of any conflict between the documents comprising the Agreement, precedence shall be given to the documents in the following order (with the first document having the highest ranking):
- 22.5.1 Service Confirmation Schedule;
- 22.5.2 the Product Specific Terms;
- 22.5.3 the General Terms and Conditions
- 22.5.4 the Acceptable Use Policy.