It is your responsibility to ensure that the Internet services made available under this agreement are used in a lawful and responsible manner. Any use of the service in pursuance of criminal activity, or which gives rise to an action at law (by any person) against you, is in breach of this agreement. You are required to ensure that your use of the service does not cause harm to our network or to the network operations of any other provider. You further are responsible, at Gigawave’s election, for any misuse of your connection by any third person to whom you give permission to use the service or who acquires access as a result of your failure to take reasonable precautions to prevent access.
Parties To This Agreement & Knowing Our Customers
- This agreement is between a customer (you) and Gigawave Solutions (Pty) Ltd (Gigawave, we, our or us).
- Gigawave is constantly striving to improve our services to you and therefore we may amend this agreement. While we will ordinarily give you at least 20 working days’ notice of any change by electronic mail, exceptional circumstances may require an immediate change made at our sole discretion.
- We require you to provide us with honest and truthful information about yourself and may require you to send us documentation confirming your identity and address. If you fail to provide us with this, information we may have to, without notice or warning, suspend your access to certain, or all, of our products and services. Gigawave is afforded by this agreement the right to verify any information you provide us together with any customer history with any credit bureau and we may provide any bureau with such personal information as may be necessary to verify information.
- This agreement represents the consumer agreement between Gigawave and you in terms of the Consumer Protection Act (68 of 2008) and any other applicable legislation or regulation.
- The service provided under this agreement is an “as is”, “best effort” and “contended” Internet service intended for consumer use.
- It is your responsibility to ensure that the Internet services made available under this agreement are used in a lawful and responsible manner. Any use of the service in pursuance of criminal activity, or which gives rise to an action at law (by any person) against you, is in breach of this agreement. You are required to ensure that your use of the service does not cause harm to our network or to the network operations of any other provider.
- Further, you are responsible, at Gigawave’s election, for any misuse of your connection by any third person to whom you give permission to use the service or who acquires access as a result of your failure to take reasonable precautions to prevent access.
- The email address from which you agree to this agreement shall be regarded as your email address and all communications to and from from same will be regarded as correspondence from and with you.
Interpretation of this Agreement
- This agreement is entered in to in accordance with the laws of the Republic of South Africa. The meaning ascribed to any term is to be that customarily used by companies involved in internet service providing.
- All clauses of this agreement are severable. If any clause in this agreement is for any reason unenforceable, or void at law, such clause shall be severed without voiding the remainder of the agreement.
- Each service for which you subscribe will carry product terms of service which shall form part of our agreement with you.
Representation, Advertising Warranties and Agents
- While every effort is made to ensure that all public representations from Gigawave are accurate, it is agreed that Gigawave will not be liable in any manner whatsoever if a representation contains an error or inaccuracy.
- In the event that it comes to our attention that an advertisement, or publication of any sort, made by Gigawave appears, in context, to be an erroneous advertisement upon which a reasonable person would place reliance or belief, such advertisement will be retracted or corrected.
- No representation or undertaking made by a member of staff at Gigawave shall be binding on Gigawave unless such undertaking is made or confirmed by email to you by a director of the company.
- You undertake to respect Gigawave’s intellectual property rights and agree to refrain from any activity which would cause harm to Gigawave with respect to intellectual property including: a. malicious misuse of Gigawave trademarks (whether registered or unregistered), branding and logos; b. decompiling and reverse engineering any system or website operated by, or on behalf of, Gigawave without our written consent.
- Subject to this section, billing terms of this agreement and any term contract you may enter into with Gigawave, it is agreed that you may cancel any or all of your services with a calendar months’ notice in writing, unless otherwise indicated by the product description or marketing.
- A cancellation may not be processed while the parties are engaged in a dispute resolution process, or there is an outstanding invoice to be settled, or if a contract is attached to the service.
- Where Gigawave has subsidised a product or paid in full or part for any fees on behalf of the customer, whether as an ordinary or promotional product, the associated fees are due and payable to Gigawave prior to the cancellation being processed. Cancellations will not be processed where a customer has any such outstanding balance due to Gigawave.
- Gigawave reserves the right to terminate this agreement and the contractual relationship with you under the following circumstances:
- You have breached this agreement and have failed to remedy such breach within 48 hours of being notified of the requirement to remedy the breach;
- On the basis of an AUP or FUP violation as envisaged by clauses F.8 and G.3 of this agreement;
- Where a cancellation termination of this agreement is imposed upon Gigawave by operation of any law, regulation or regulatory action in force in the Republic of South African; d.at our election under the same terms and rights as are afforded to you in terms of clause D.1.
Billing And Invoicing
- You agree to settle any charge invoiced to your account promptly and on the due date, unless otherwise agreed, and will present any queries relating to your invoice to [email protected] no later than the due date stipulated on the invoice.
- Gigawave charges for service in advance and not in arrears. While a service may be provisioned and available to you before you receive an invoice such provisioning does not constitute a line of credit upon which future payment may be made in arrears.
- It is agreed that in any instance where Gigawave provides immediate access to a service for which the invoice is issued, such invoice shall be due and payable immediately.
- Should you subscribe to a debit order or any other automated processing arrangement with Gigawave then the date upon which such arrangement is scheduled for payment shall be up to 3 days before the date agreed upon on which the account must be paid.
- The subscription of any order or processing arrangement involving any third parties shall not indemnify you against responsibility to pay Gigawave in the event that such arrangement does not constitute settlement of your invoice in full.
- Non-payment, or short payment of any invoice on the due date, or such other date as agreed, of that invoice, constitutes a breach of this agreement. Nothing in this agreement shall be read to preclude Gigawave’s right to tempore morae interest under the common law.
- It is agreed that the nature of an Internet service using broadband technology precludes any reasonable expectation of full uptime and full speeds, and Gigawave shall not be obliged to effect any refund or pass any credit note in respect of any period during which a service is not available or where service is degraded.
- It is agreed that any billing error resulting in an overcharge or overpayment will result in the passing of a credit note (which shall include any interest charged by Gigawave in error) to any outstanding invoice. If there are no outstanding invoices such credit note will be passed on the next invoice issued. Refunds shall only be made in the event that the amount of the credit note would exceed the amount of anticipated future invoices arising in the sixty days after the passing of the arising of credit note. Any refund of monies by Gigawave shall be paid by means of an electronic payment into a banking account designated by you.
- It is agreed notwithstanding the existence of a dispute resolution process that Gigawave may cede, collect and enforce through any competent court any amount owing to Gigawave on an attorney own client scale.
- It is agreed that in the event that your broadband line operates at a higher speed than the service for which you have applied that we may charge you the amount due in respect of the higher speed.
- Ordinarily invoices shall be issued on within 10 days of the 1st day of the next month and be due for payment and full settlement before the 1st of the month, however circumstances may arise that cause invoices to be issued on a different day from time to time . In the month of December invoices may be issued early with payment due before the 16th of December.
- It is agreed that if you are being provided with a discount of any nature for any product(s) provided by Gigawave or any Gigawave affiliates, and you maintain an outstanding balance due for a period of 7 days or more, or are in breach of this agreement in any way, and where such balance is not the subject of a legitimate dispute as per the rights afforded to you in this agreement, that all discounts applicable to your billing relationship with Gigawave shall be terminated from the date upon which the outstanding balance initially became due.
- It is agreed that if you have been provided with a subsidy of any nature for any product(s) provided by Gigawave or any Gigawave affiliates, such as but not limited to installation fees, activation fees, and hardware, that these fees as calculated at the date of the subsidy/subsidies will become due and payable to Gigawave under the following circumstances:
- You maintain an outstanding balance due for a period of 7 days or more after payment due date.
- You are in breach of this agreement in any way
- You terminate your product within 24 months after initial activation date of said product
- All non-contractually assured discounts offered or applied by Gigawave remain within Gigawave’s sole reasonable discretion, and may be amended or terminated.
Acceptable Use Policy
- The Acceptable Use Policies (AUP) of every network on which your product(s) operate forms part of the contractual relationship between you and Gigawave. Violating any applicable AUP constitutes a breach of contract and an infringement of the rights of Gigawave. The applicable AUP for the network is appended as part of the product description.
- Should Gigawave for any reason whatsoever cause your product to operate on another network you will be obliged to adhere to the AUP of that network.
- Where there is a reasonable suspicion of a serious breach of the AUP, or the law otherwise requires, we will not hesitate to, without warning or notice, suspend any account connected to you. The right to suspend any account for a suspected violation of the AUP is extended to any upstream providers and channel partners.
- The Internet is made up of many networks under the responsibility and control of various different parties in different jurisdictions. As a result, any particular usage by you may result in your traffic transiting on networks with AUP provisions which differ from those of Gigawave. Gigawave shall not be responsible for any liability that may arise nor any failure of performance that may result as a consequence of your violating another providers AUP. Gigawave regards abuse of another network originating on our network as a violation of the AUP where the infringer could reasonably be expected to know or believe that such conduct would constitute an AUP violation on the recipient network.
- While unintentional conduct will ordinarily not be regarded by Gigawave as an infringement of the AUP, you are required to take all reasonable steps, and gross negligence on your part may be regarded as a serious contravention.
- Gigawave, may recover from you any damages or costs that are a result of any breach of this AUP by you. Such recoverable costs include costs consequent upon the utilizing of legal services on an attorney own client scale.
- Any party affiliated to Gigawave may (with Gigawave’s consent) recover any damages or costs caused by a violation of the AUP committed by you. Such damages must be proved by such affiliate in accordance with the dispute resolution provisions of this agreement.
- Serious contraventions of the Acceptable Use Policy may result in Gigawave terminating all services and our relationship with you with immediate effect and without entitlement to any refund.
- Any complaint concerning a contravention of an AUP shall be received by email at [email protected]
- Absent a specific AUP applying the following carriage standard AUP shall apply and any entity whatsoever who is involved in the provisioning of the service shall be a “provider”.
Gigawave’s website, applications, data and other public facing channels may only be used for lawful purposes and activities. We prohibit any use of our website/network including the transmission, storage and distribution of any material or content using our network that violates any law or regulation of the Republic. This includes:
Any violation of local and international laws prohibiting child pornography; obscenity; discrimination (including racial, gender or religious slurs) and hate speech; or speech designed to incite violence or hatred, or threats to cause bodily harm.
Any activity designed to defame, abuse, stalk, harass or physically threaten any individual in the Republic or beyond its borders; including any attempt to link to, post, transmit or otherwise distribute any inappropriate or defamatory material.
Any violation of Intellectual Property laws including materials protected by local and international copyright, trademarks and trade secrets. Moreover the provider cannot be held liable if you make any unlawful use of any multimedia content accessed through the search facility provided by the provider ’s network, or otherwise available through access to our network, whether for commercial or non-commercial purposes.
Any violation of the individual’s right to privacy, including any effort to collect personal data of third parties without their consent.
Any fraudulent activity whatsoever, including dubious financial practices, such as pyramid schemes; the impersonation of another subscriber without their consent; or any attempt to enter into a transaction with the provider on behalf of another subscriber without their consent.
Any violation of the exchange control laws of the Republic.
Any activity that results in the sale, transmission or distribution of pirated or illegal software.
Failing to respond to a request by a recipient of unsolicited mail to be removed from any mailing or direct marketing list and continuing to send unsolicited mail following such a request for removal.
Where any user resides outside of the Republic, permanently or temporarily, such user will be subject to the laws of the country in which s/he is currently resident and which apply. On presentation of a legal order to do so, or under obligation through an order for mutual foreign legal assistance, the provider will assist foreign law enforcement agencies (LEA) in the investigation and prosecution of a crime committed using the provider ’s resources, including the provisioning of all personal identifiable data.
The following sections outline activities that are considered an unacceptable use:
Threats to Network Security
Any activity, which threatens the functioning, security and/or integrity of the provider’s network is unacceptable. This includes:
Any efforts to attempt to gain unlawful and unauthorised access to the network or circumvent any of the security measures established by the provider for this goal; Any effort to use the provider equipment to circumvent the user authentication or security of any host, network or account (“cracking” or “hacking”);
Forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting;
Any effort to breach or attempt to breach the security of another user or attempt to gain access to any other person’s computer, software, or data without the knowledge and consent of such person;
Any activity which threatens to disrupt the service offered by the provider through “denial of service attacks”; flooding of a network, or overloading a service or any unauthorised probes (“scanning” or “nuking”) of others’ networks;
Any activity which in any way threatens the security of the network by knowingly posting, transmitting, linking to or otherwise distributing any information or software which contains a virus; Trojan horse; worm, lock, mail bomb, cancelbot or other harmful, destructive or disruptive component.
Any unauthorised monitoring of data or traffic on the network without the provider’s explicit, written consent.
Any unsolicited mass mailing activity including direct marketing; spam and chain letters for commercial or other purposes, without the consent of the recipients of those mails.
Public Space and Third Party Content and sites
You acknowledge that the provider has no power to control the content of the information passing over the Internet and its applications, including e-mail; chatrooms; news groups; or other similar fora, and that the provider cannot be held responsible or liable, directly or indirectly, for any of the abovementioned content, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, any such content.
Our services also offer access to numerous third party webpages. You acknowledge that we exercise absolutely no control over such third party content, or sites and in such cases, our network is merely a conduit or means of access and transmission. This includes, but is not limited to, third party content contained on or accessible through the provider’s network websites and web pages or sites displayed as search results or contained within a directory of links on the providers network. It remains your responsibility to review and evaluate any such content, and that any and all risk associated with the use of, or reliance on, such content rests with you.
Access to public Internet spaces, such as bulletin boards, Usenet groups, chat rooms and moderated forums is entirely voluntary and at your own risk.
The provider employees do not moderate any of these services, or your communications, transmissions or use of these services. We do not undertake any responsibility for any content contained therein, or for any breaches of your right to privacy that you may experience as a result of accessing such spaces.
The customer is responsible for determining and familiarizing himself or herself with the written policies of a given newsgroup before posting to it.
The customer must comply with these guidelines at all times which can be obtained from other users of the newsgroup upon request, or from the group’s administrators/moderators.
The following are prohibited practices with regard to Usenet newsgroups and the provider reserves the right to delete and/or cancel posts which violate the following conditions:
Excessive cross-posting of the same article to multiple newsgroups.
Posting of irrelevant or off-topic material to newsgroups (also known as USENET spam).
Posting binaries to a non-binary newsgroup.
Posting adverts, solicitations, or any other commercial messages unless the guidelines of the newsgroup in question explicitly permit them.
Unsolicited, Spam and Junk mail
Spam and unsolicited bulk mail are highly problematic practices. They affect the use and enjoyment of services by others and often compromise network security. The provider will take swift and firm action against any user engaging in any of the following unacceptable practices:
Sending unsolicited bulk mail for marketing or any other purposes (political, religious or commercial) to people who have not consented to receiving such mail;
Operating or maintaining mailing lists without the express permission of all recipients listed;
Failing to promptly remove from lists invalid or undeliverable addresses or addresses of unwilling recipients;
Using the provider’s service to collect responses from unsolicited e-mail sent from accounts on other Internet hosts or e-mail services, that violate this AUP or the AUP of any other Internet service provider;
Including the provider’s name in the header or by listing an IP address that belongs to the provider in any unsolicited email sent through the provider’s network or not;
Failure to secure a customer’s mail server against public relay as a protection to themselves and the broader Internet community. Public relay occurs when a mail server is accessed by a third party from another domain and utilised to deliver mails, without the authority or consent of the owner of the mail-server. Mail servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection such delivery must be disallowed.
The provider provides a spam and virus filtering system to protect customers from unsolicited mail and viruses. The customer acknowledges that this system might incorrectly identify a valid message as spam or as a virus and consequently this message might not be delivered to the customer. The customer acknowledges and agrees that the provider shall without limitation have no responsibility for, or liability in respect of any data lost as a result of this system.
Protection of Minors
The provider prohibits customers from using the provider’s service to harm or attempt to harm a minor, including, but not limited to, by hosting, possessing, disseminating, distributing or transmitting material that is unlawful, including child pornography.
Service Level Policy
- Gigawave does not actively shape or throttle it’s network in any way
- In the event that forces outside of Gigawave’s control impact our network performance, such as but not limited to being the target of a Denial of Service Attack, Gigawave reserves the right to temporarily block the target customers’ connections within our network and within our upstream network for the sake of preserving overall network performance for all customers.
- It is agreed by the customer that in the event of attacks against the Gigawave network, such as but not limited to Denial of Service attacks, network performance will degrade until such time as the attack has been successfully mitigated or the attack has stopped, and such events are outside of the control of Gigawave. Subsequently, Gigawave accepts no liability in such events.
- Nothing in this agreement or Gigawave marketing should be interpreted as a guarantee of service or performance.
- Gigawave undertakes to attempt to maintain a network with zero contention at all times however no guarantees can be made by Gigawave to this extent and no implied service level agreement between Gigawave and our clients should be interpreted to exist by this clause or any other clauses or marketing material, due to the fact that circumstances outside of Gigawave’s control may impact performance to end users.
- Where Gigawave makes an undertaking that we will not shape, throttle or contend our network, this can only be read to apply to Gigawave’s own network. Where a client’s connection transits across another operator’s network, such claims do not and cannot apply as Gigawave makes no representations on behalf of other network operators.
- A dispute concerning this Agreement only exists once a party notifies the others in writing of the nature of the dispute and requires it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- negotiation; failing which
- mediation; failing which
- Within ten Business Days of notification, the parties must seek an amicable resolution to the dispute by referring it to designated and authorised representatives of each of the parties to negotiate and resolve it by the parties signing an agreement resolving it within 15 Business Days.
- If negotiation fails, the parties must refer the dispute for resolution by mediation under the rules of the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead) (AFSA).
- If mediation fails, the parties must refer the dispute within 15 Business Days for resolution by arbitration (including any appeal against the arbitrator’s decision) by one arbitrator (appointed by agreement between the parties) as an expedited arbitration in Sandton under the then current rules for expedited arbitration of AFSA. If the parties cannot agree on any arbitrator within a period of ten Business Days after the referral, the arbitrator will be appointed by the Secretariat of AFSA.
- The periods for negotiation or mediation may be shortened or lengthened by written agreement between the parties.
- This clause will not preclude any party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process, for which purpose the parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.
- This clause is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified, or cancelled for any reason or cause.