Below are the Terms and Conditions of Use for all agreements between Comsol Networks (Pty) Ltd (“Comsol”), in which they provide goods and/or services to a customer, business or corporate entity.

AN INTRODUCTION

These terms regulate the (i) agreement between Comsol and customer when Comsol supplies goods or services to customer and (ii) use of the website by any user, whether a customer or not.

By using the goods or services or visiting the website, you agree to be bound by these terms.

TERMS & CONDITIONS DEFINITIONS

Unless the context otherwise indicated, the following expressions shall have the meanings given to them hereunder:

• “Act” means the Electronic Communications Act No. 36 of 2005;
• “agreement” means these general terms and conditions, including all schedules and annexures hereto, together with the terms of any orders and the acceptable use policy which are incorporated herein by reference;
• “business day” means Monday to Friday, excluding public holidays published as such in the government gazette;
• “business hours” means from 08h00 to 17h00 South African time, on business days;
• “charges” means MRC, NRC, usage fees and any other charges payable under this agreement;
• “contract term” means the term of the applicable services as set out in the applicable service order or on the website;
• “customer” means the person that has entered into an agreement with Comsol for the provision of goods or services or the user of the website, whichever applies in the circumstances;
• “effective date” means the date of signature of the agreement;
• “goods” means the any IT goods, including but not limited to hardware and software that Comsol provides to customer in terms of an order;
• “intellectual property” means all intellectual property rights, including but not limited to any domain names; know-how (not in the public domain); invention (whether or not patented); design, trademark, copyright material (whether or not registered), material eligible for copyright in terms of applicable legislation trade or business names, trade secrets or any similar rights to any of the above rights that may subsist in South Africa or elsewhere, whether or not such rights are registered or capable of being registered;
• “order” means a goods or services order, which ever applies, that sets out the commercial terms for the provision of goods or services by Comsol to the customer;
• “party” means either Comsol or the customer and “parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns’;
• “personnel” means any director, employee, agent, consultant, contractor or other representative of a party;
• “premises” means the premises where Comsol provides the services;
• “services” means any services that Comsol provides to the customer in terms of the agreement;
• “services commencement date” means the commencement date specified in the order and if no commencement date is specified, the first day on which the service is activated or provided;
• “service levels” means the levels according to which Comsol will provide the service as agreed by the parties in the order or as specified on the website;
• “site” means the customer’s site, the Comsol system or any other system being used by Comsol for purposes of fulfilling its obligations in terms of the agreement;
• “system” means the data centre and equipment including without limitation servers, peripherals, routers, switches, software, databases, cables, generators, and uninterruptible power supplies which are operated together as a system by Comsol in providing a service;
• “third party contractor” means the contractor, supplier, or licensor (which ever applies) of any goods or services, but which is not a party to this agreement;
• “website” means www.comsol.co.za.co.za or any localised URL derivative owned by Comsol.

THE INTERPRETATION

Any reference to days shall be interpreted to be a reference to a calendar day unless qualified as a business day. When any number of days is prescribed, the number of days shall be calculated on the basis that the first day is excluded and the last day is included, provided that if the last day is not a business day, the last day shall be the ensuing business day. Inclusion of the words “including” or “excluding” followed by examples or items following the term be illustrative only and will not limit its ambit or application.

Terms other than those defined 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.

Each order shall constitute the subject of a separate agreement between the parties. In the event of any conflict between the terms of these terms, the acceptable use policy and the service order, the agreement will be interpreted in the following order:

• The general terms and conditions;
• The acceptable use policy;
• The order.

GOODS AND SERVICES APPOINTMENT

The customer appoints Comsol to provide the services, subject to the terms and conditions contained in this agreement, which appointment Comsol accepts.

COMMENCEMENT AND DURATION

This agreement shall commence on the effective date and shall thereafter remain in force indefinitely, subject to the remaining provisions of this agreement.

If applicable, the commencement of the services to be provided shall be in terms of each individual service order that is completed by the customer and will be effective from the service commencement date for the contract term in the service order.

Upon the expiration of the initial period, the applicable services will continue indefinitely, subject to either party providing 90 (ninety) calendar day’s written notice of termination to the other party, unless otherwise agreed in the order.

GOODS AND SERVICES

Comsol will sell the goods and provide the services to customer in terms of the agreed order, alternatively if no order is agreed, as described and specified on the website.

If Comsol supplies goods that are accompanied with software, the use of the software will be regulated by a license agreement between the customer and the owner or licensor of the software, which agreement will constitute a separate agreement between the customer and the owner or licensor of the software. Comsol will not be a party to this license agreement.

The customer expressly gives its permission and authorises Comsol to remotely access its data, network, system, software, hardware or do whatever is required to fulfil its obligations and render the services in terms of the agreement.

PROVISION OF SERVICES

Comsol agrees that it will from the effective date, and thereafter continue throughout the duration of this agreement, supply the services as requested by the customer from time to time, in accordance with the agreement.

For the duration of this agreement, the customer shall obtain the services as it requires from Comsol in terms of this agreement, the services schedule and the service order concluded from time to time.

Unless otherwise agreed, Comsol shall not be under any obligation to supply any services to the customer until a service order in respect of the required services has been agreed by signing the order.

In order to provide the services, Comsol reserves the right to utilize any technology available and which it considers at its discretion as the most suitable and responsible to provide services.

The services shall be used by the customer in accordance with the agreement.

Each service order shall constitute an agreement between the parties subject to and regulated by this agreement.

The customer will not knowingly create, store or disseminate any illegal content.

The customer commits to lawful conduct in the use of the services, including copyright and intellectual property rights.

The customer undertakes not to send or promote the sending of spam.

ORDERS

No terms or conditions of a customer’s order that are in conflict with this agreement will be binding.

Depending on the service in question, a customer must either place an order online or request a quote from, Comsol.

OWNERSHIP AND RISK

All Comsol Equipment shall be and remain the property of Comsol.

Accordingly, where Comsol Equipment is in the possession, or under the control, of the Customer or its customer, the Customer agrees:

not to remove or allow the Comsol Equipment to be removed from the Customer or its Customer site without Comsol’s written consent;

• to keep Comsol’s Equipment in good condition;
• not to allow Comsol’s Equipment to be encumbered by operation of law or otherwise;
• to allow Comsol to inspect the Comsol Equipment at reasonable times;
• to accept all risk in the Comsol Equipment, taking reasonable steps to protect Comsol’s Equipment from loss and/or damage; and
• to return such Comsol’s Equipment to Comsol on the termination of the Contract Term of the applicable Services, alternatively, replace such Comsol Equipment with new equipment of the same standard, quality and specification against reasonable wear and tear. The customer will be responsible for the maintenance of all the data passing over the Comsol infrastructure and must ensure that adequate and systematic backups are made regularly. Comsol will accordingly not be liable for loss of the customer’s data, restoration of lost data or any other as a result of the customer not complying with this "Ownership and risk" clause.

DELIVERY AND INSTALLATION

Any delivery date provided to a customer is an estimated date only and Comsol shall make all reasonable efforts to deliver on the estimated date.

If Comsol is not able to deliver on the estimate date, Comsol will take all reasonable measures to inform the customer timeously of the delay in delivery.

Should the customer assist with the installation of any goods or services, including software, Comsol will not be liable for any damage caused or losses suffered as a result of the customer’s assistance with the installation.

Should Comsol charge the customer any delivery charges, Comsol will quote for this upfront and all deliveries will be payable in full as specified on the quote, before delivery of the goods.

Should the installation require any additional charges such as a cherry picker, extended internal copper or fibre cable runs, Comsol will quote for this upfront and all such additional costs will be payable in full as specified on the quote, before delivery of the goods.

FEES AND PAYMENT

The customer shall be liable for and shall pay the fees in respect of the goods or services as set out in this clause or in the applicable orders for the term of the agreement.

Fees are payable in South African Rand without deduction or set-off for any reason and each order will constitute a separate agreement between the parties.

Unless otherwise agreed in the order, the customer shall have the option to pay via EFT or debit order authorisation. Should the customer choose to pay by EFT, Comsol shall have the right to request the customer to sign a debit order authorisation in the event of a customer failing two or more times to pay within 3 days after the due date. Should the customer refuse to sign this debit order authorisation, Comsol will be entitled to cancel the agreement without any prejudice to any other rights in law or contractually.

The customer agrees to Comsol rendering electronic invoices.

Unless otherwise agreed in the order, all monthly fees payable for services shall be invoiced by Comsol monthly in advance and are due on or around the 1st day of each month.

Comsol may invoice pro-rata portions of monthly fees for services where an agreement commences on a day other than the first of the month.

Any services supplied on a times and materials basis, as indicated in the order, shall be billed monthly in arrears and shall be payable within 30 days from statement.

The customer may not withhold payment of any amount due to Comsol for any reason, including an alleged breach of contract by Comsol.

Should any amount invoiced be disputed, the customer shall not be entitled to withhold any such amount pending resolution of the dispute and any dispute will be referred to arbitration in accordance with the "General" clause.

Fees and charges not settled in terms of the agreement will bear interest at the prime rate of Standard Bank Limited, such interest to be calculated from the due date of payment to the date of actual payment, both days inclusive, calculated daily and compounded monthly in arrears.

The prime rate as certified by any manager of Standard Bank Limited will apply and the manager’s appointment and authority shall not need to be proved.

The customer shall reimburse all reasonable expenses authorized by customer and as are properly incurred by Comsol and Comsol’s personnel in fulfilling Comsol’s obligations in terms of the agreement, including but not limited to goods and services purchased on the customer’s behalf, communications, stationery, report and presentation material, travelling and subsistence expenses as invoiced. Customer will not withhold authorization unreasonably.

FIXED CHARGES

Subject to "Fixed Charges" clause, the monthly fees and charges set out in each of the applicable service orders shall be fixed for the duration of the contract term.

Comsol shall be entitled to adjust the monthly fees and charges in the event of any regulatory, or government imposed factors impact on such fees and charges.

INTELLECTUAL PROPERTY RIGHTS

Unless otherwise agreed, nothing in the agreement will be construed as assignment of any copyright or other transfer of any intellectual property rights.

The customer agrees to defend and hold Comsol harmless from all losses, or liability arising in any way from the customer infringing the intellectual property rights of third party contractors.

The customer agrees to comply with all license or other terms of third party contractors that supply goods or services for use in conjunction with the goods or services provided by Comsol.

SUSPENSION OF SERVICES

Comsol will be entitled to suspend the service with immediate effect and without notice if:

• the customer has failed to make payment in terms of the agreement after receiving 5 (five) days’ written notice from Comsol;
• the customer has committed any other material breach and failed to rectify it (if it is possible to rectify) within 14 (fourteen) days of receiving written notice from Comsol;
• there is a security violation or imminent security violation of the system or website;
• emergency maintenance, as determined by Comsol in its sole discretion is required;
• it is necessary to comply with the law;
• it receives a take-down notification and the alleged conduct is in contravention of the Comsol Acceptable Use policy.

Comsol will be entitled to suspend the service and will endeavour to provide reasonable notice if routine maintenance, repair or the like is required, which maintenance Comsol shall endeavour to perform at times of low traffic volume.

WARRANTIES

Except as specifically provided for in the agreement, Comsol excludes all warranties, subject at all times to applicable law.

Comsol warrants that it has the infrastructure, capacity and personnel to provide the service in a workmanlike manner and in accordance with acceptable industry standards.

The services are provided “as is” and “as available” and without any further express or implied warranty of any kind, including warranties of fitness for purpose, non-infringement, non-compliance with legislation in the applicable jurisdiction.

INDEMNITY

Subject to "Exclusion and limitation of liability" clause Comsol will not be liable for any loss or damage whatsoever and the customer indemnifies Comsol against such loss or damage that the customer may suffer as a result of the customer’s use of the services, fault, down-time, or outages of the goods or services or viruses, or security violations, howsoever arising and whether arising out of any problems with the services attributable to Comsol or any electronic communications network services or another third party contractor of electronic communications services, or for any other reason.

The customer further indemnifies Comsol against any claim resulting from:

• the use of the customer’s data by a third party;
• the loss of the customer’s data;
• any non-compliance or breach with the agreement.

Notwithstanding the above, nothing in this agreement and/or any order, service order or acceptable use policy shall exclude or in any way limit Comsol’s liability for gross negligence or wilful misconduct

EXCLUSION AND LIMITATION OF LIABILITY

Comsol excludes all liability howsoever caused as a result of any use of third party contractor’s goods or services.

Unless the law provides otherwise, Comsol shall under no circumstances be liable for any special, indirect, consequential, economic 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.

Subject to applicable law, Comsol will only be liable for direct damages and the maximum total liability for direct damages as a result of breach of this agreement will in all circumstances be the monthly service fee (if any) paid by the customer for the last 2 months as set out in the relevant service order, prior to cancellation of the agreement. This maximum amount shall be an aggregate amount for all claims arising out of the causes mentioned.

CONFIDENTIALITY

The parties agree to treat all confidential information of the other party that is normally regarded as confidential information or not ordinarily available to the public as confidential for the period of the agreement as well as after termination of the agreement.

TERMINATION AND BREACH

Without prejudice to any rights and remedies that may have accrued, either Party may terminate this Agreement with immediate effect upon written notice if the other Party:

• ceases to trade (either in whole, or as to any part involved in the performance of this Agreement); or;
• has a court order issued against it placing it under final liquidation. For the avoidance of doubt, where a Party is undergoing the business rescue process in accordance with the Companies Act No. 71 of 2008, and for so long as that Party is still complying with its obligations under this Agreement, the other Party may not terminate the Agreement in accordance with this clause 18.1.

Either Party shall be entitled to terminate this Agreement in the event of the other Party committing a material breach of any of the terms of the Agreement and failing to remedy such breach within a period of sixty (60) calendar days after receipt of written notice drawing its attention to the breach and demanding that it be remedied.

SERVICE VARIATIONS

If either of the Parties wishes to make a change, modification or adjustment to any element of any Service, the following procedure will apply:

• The Party who requests the change will forward a change request to the other Party, setting out the details of the change request;
• Comsol will investigate the feasibility, cost implications and impact of the change request on the Services and notify Customer of the results of this Impact Study;
• If the Customer makes a decision to proceed with the change request after considering the Impact Study, Customer shall give Provider a written instruction to proceed with that change on the basis set out in the Impact Study. That instruction shall be binding on the Parties and the Agreement shall be deemed to be amended accordingly; and
• If the Parties cannot agree upon the necessary amendments, the change request will not be implemented.

EARLY TERMINATION COSTS

Unless stated to the contrary in the relevant Service Schedule or Order Form, the termination fee shall be calculated on the outstanding fees and charges for each of the Terminating Services as at the Termination Date and will be determined as follows:

• In the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, Customer shall be liable for an amount equal to the full NRC, the Decommission Costs, plus six (6) months of the MRC;
• In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Contract Term for the Terminating Services is twelve (12) months or less; Customer shall be liable for an amount equal to any unpaid NRC and 100% of the MRC for the remainder of the Contract Term of the Terminating Services;
• In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Contract Term for the Terminating Services is greater than twelve (12) months; Customer shall be liable for an amount equal to any unpaid NRC and 100% of the MRC for the Terminating Services for the remainder of the first twelve (12) months (if any), and 50% of the MRC for the Terminating Services for each month thereafter. Customer shall also be liable for the Decommission Fee and any applicable Decommission Costs.

The amounts referred above shall be in addition to all fees and charges payable in the ordinary course in respect of the applicable Order Form for the Terminating Services, plus any other Services that continue unchanged, as at the Termination Date.

Customer shall be obliged to pay the termination fee as calculated above, in full within 30 days of Termination Date.

TERMINATION ASSISTANCE

Subject to no outstanding payments being due to Comsol, Comsol will upon termination of the agreement render such reasonable assistance to the customer so as to enable the customer to migrate any services affected by such termination to a service provider of the customer’s choice.

FORCE MAJEURE

In the event of any dispute arising between the Parties under this Agreement or any Service, the Parties will act in good faith to attempt to settle the dispute through discussions between senior representatives (which may include the respective CEOs or their nominees) of the Parties within forty-five (45) calendar days of a Party giving the other Party notice of the issue in dispute.

Any dispute which cannot be resolved by the Parties within the forty-five (45) calendar day period, as provided in clause 21.1, shall be resolved by arbitration in the English language by a single arbitrator appointed by the Arbitration Foundation of Southern Africa and in accordance with the Rules of the Arbitration Foundation of Southern Africa. The arbitration shall be held in Johannesburg.

Each Party expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency, and irrevocably authorises the other to apply, on behalf of the Parties, in writing, to the secretariat of AFSA in terms of article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.

Notwithstanding the provisions of clauses 21.1 to 21.3, either Party shall have the right to seek relief by way of interim relief from any court of competent jurisdiction, pending the outcome of the arbitration or at any time.

Any arbitration in terms of clause 21.2 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.

This clause 21 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.

GENERAL

Nothing in this agreement will constitute any relationship of employment, subcontract or partnership and neither party will be able to bind the other party contractually.

The parties choose as domicilium citandi et executandi the address stipulated in the order.

This agreement will be regulated and interpreted in accordance with the laws of South Africa.

A party may only assign its rights and obligations under this agreement to a third party with the written consent of the other party.

This agreement constitutes the entire agreement between the parties and no variation will be of any effect unless agreed to in writing and signed by both parties. Signature for purposes of this clause does not include an electronic signature as provided for in the ECT Act.

WEBSITE USE

PRIVACY AND MONITORING

Comsol recognises the right to privacy.

The customer agrees that Comsol will have no duty to monitor the data transmitted through the system, but may monitor the system and site for operational purposes and to comply with applicable legislation, including but not limited to:

• the Regulation of Interception of Communications and Provision of Communication-related Information Act (Act 70 of 2003);
• the Film and Publications Act (Act 65 of 1996);
• The Electronic Communications and Transactions Act (Act 25 of 2002).

Comsol is committed to conduct business in compliance with the applicable legislation.

If Comsol in its sole discretion determines any customer data or content available on the system to be in violation of the Acceptable use policy, or if Comsol receives a take-down notice, Comsol may terminate or suspend the service in accordance with the "Suspension of services" clause

PROFILE INFORMATION COLLECTED FROM YOU

When you register for the Comsol service we collect your company name, your name and both sets of contact details.

Further information may be collected from you throughout the course of the relationship with us.

This information is used by us to support your interaction with our site and to ensure that only the authorised user is instructing us via the web portal.

Your e-mail address or mobile phone number may be used to send you communication regarding the progress of your matter, to notify you of any changes or updates to the Comsol service, and to send you relevant news and data from time to time. We will not share your e-mail address with any third parties.

TERMS OF USE OF WEBSITE

By using, accessing or viewing this website you agree to these terms and conditions, including any document that may be incorporated by reference thereto. You may only use this website and its content in order to view, refer to, utilise or print information for lawful purposes.

The use of this website does not extend to its’ source code or to the source code of any software or computer program that forms part of the website.

You are not allowed to republish any information obtained on this website or distribute it in any manner.

Use of this website is strictly at your sole risk.

We may, in our sole discretion, at any time and for any reason and without prior written notice, suspend or terminate the operation of this website or withdraw any of the content; or your right to use this website.

We reserve the right to make amendments to the content and information on this website, including, but not limited to, amendments to pricing and rates. You acknowledge that each time you use the website it is your duty to familiarise yourself with any amendments that may have been made since you last used the website.

Automated transactions and searches are subject to these terms and conditions.

The use of malicious search technology is prohibited.

The use of search technology in an unlawful manner or for the collecting or harvesting of data for commercial gain is prohibited.

LIMITATION OF LIABILITY

Comsol will not be liable for any unavailability, interruption, downtime, malfunction, or failure of this website or the disappearance of content from the website for any reason whatsoever. Comsol will not be liable for any viruses, destructive materials or any other data or code (‘harmful material’) which is able to harm or otherwise impede in any manner the operation of a computer system, network, handset or mobile device and the user accepts the risk associated with the existence of such harmful material.

Comsol strictly agrees to adhere to the guidelines relating to consumer protection, as specified in Electronic Communications and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008, and other relevant pieces of legislation.

COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS

Copyright in all information, images, icons, source codes and other original material contained in this website which is not attributed to a third party, is held by or licensed to Comsol.

All intellectual property rights (whether existing before or after the agreement commences) that each party owns remains the sole and exclusive property of that party.

EXCLUSION OF REPRESENTATIONS

We reserve the right to change the website and content without notice.

This website is provided without any representation or warranty whatsoever.

We do not accept any responsibility for any errors or omissions on this website.

WARRANTIES

You warrant that all information that you provide to us is:

• correct, accurate and as recent as possible; and
• obtained via means, not in contravention of any law or legislation.

You warrant to us that the authorised representative, as identified in the application form, has the necessary authority to instruct us and bind you, to proceed with all and any instructions made by said authorised representative to us.

RESTRICTIONS ON USE

You may not use this website to obtain or distribute:

• copyrighted material or material protected by laws relating to intellectual property rights without our permission;
• harmful materials which are able to corrupt, interfere with, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation of a computer system or hardware or software;
• material which is defamatory, unlawful or contains hate speech in our discretion; or
• bulk e-mail, whether solicited or unsolicited.

You must not interfere or attempt to interfere with or jeopardise the functionality or the operation of any part of this website or any part thereof.

You shall not use this website for ‘spoofing’, ‘hacking’, ‘flaming’, ‘cracking’, ‘phishing’ or ‘spamming’ or any other activity designed or aimed at achieving similar purposes.

You may not intercept any information transmitted to or from us.

COOKIES

From time to time we may place cookies on your hard drive; a cookie is a small piece of information stored by your browser, typically used to identify returning visitors, and to collect aggregate information on the number of visitors to a site and the number of pages viewed.

When you register and log in we will place a unique identifier cookie on your hard drive; this cookie will be used to maintain logged-in status for the duration of your visit, and to log you in automatically on subsequent visits.

You can choose to prevent the site from storing cookies on your hard drive by disabling cookies in your browser options, but this will mean that you will have to log in manually each time you visit the site.

We may also use cookies to track the pages you visit so that we can deliver content based on your profile and past activity.

Cookie information is used only by us and our agents, and is not provided to any other organisation.

OTHER DATA

From time to time we may collect information such as click data and page-view statistics, the name of the Internet service provider and the IP address through which you access our site, the date and time you access the site, the pages that you access while at the site, and the Internet address of the website from which you navigated to our site.

This information is not personally identifiable and is used in aggregate for website and system administration, traffic and trend analysis and business decision-making.

GENERAL TERMS

The terms and conditions contained herein shall be deemed to be exclusive and applicable to each and every contract entered into between us. Any variation hereof shall not be binding unless reduced to writing and signed by Comsol.

The address stated on the invoice will be that supplied to us by you and shall be deemed to be your chosen domicilium citandi et executandi, and any letter, notice or process shall be validly served if sent to such domicilium.