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TERMS & CONDITIONS

  1. Introduction to these terms and conditions
    1. GrandWell provides services to enable electronic communications including electronic communications network services, electronic communications services and associated support services. These terms and conditions govern the supply of networks and services by GrandWell.
    2. In these terms and conditions, we refer to ourselves as GrandWell, us or we and the customer as you, and this is the entity reflected on the face of this document.
    3. You should check or complete the schedules that apply to your relationship with GrandWell and note that the relevant terms and conditions that will apply are set out in sections below.
    4. Unless otherwise indicated, all of the terms and conditions are binding on you when you place an order with GrandWell which is accepted by us.
  2. Definitions and interpretation
    1. In this agreement and its annexures, the following words or phrases shall have the meanings given to them below, unless the context requires otherwise:
      1. AUP: means GrandWell's Acceptable Usage Policy which can be found at grandtec.co.za/general-notice;
      2. acceptance certificate: a certificate provided by GrandWell confirming that the installation and testing of the equipment and/or service was successful, also referred to as the Take Over Certificate or "TOC";
      3. access link: the portion of the network from a point of presence on the GrandWell network to the end user's CPE;
      4. agreement: these terms and conditions, the annexures to them, the schedules, and your order (these terms and conditions take precedence in the event of any conflict in interpretation);
      5. business day: days in South Africa that are not regulated public holidays or weekends, between the hours of 08:00 and 17:00 South African Standard Time;
      6. CIR: means Committed Information Rate — the bandwidth guaranteed to work under normal conditions;
      7. CPE: means customer premises equipment, to which the services are intended to be provided;
      8. charges: the price that GrandWell charges for services and/or equipment as set out in Annexure B (Charges) and Annexure C (Equipment) and any amended or subsequent price that applies during the term of the agreement;
      9. commencement date: the date on which this agreement is signed by the last party to sign it;
      10. customer: a person receiving services as defined in section 1 of the ECA;
      11. ECA: refers to the Electronic Communications Act, Act No. 36 of 2005 as amended;
      12. equipment: the equipment described in Annexure C (Equipment) and provided by us, together with the associated software (but not spare parts), and in some cases, CPE;
      13. fault: a disruption to or interference in the GrandWell network or services which results in an interruption, outage or failure, poor functionality, poor or degraded quality and/or availability;
      14. ICASA: the Independent Communications Authority of South Africa;
      15. MRC: means a monthly recurring charge;
      16. NRC: means a non-recurring charge, that is a once-off charge;
      17. order or service order: the request for equipment and/or services that you make to us in writing, open to us to accept subject to availability and payment;
      18. services: the provision of access to the GrandWell network, ECNS, ECS, SAAS, maintenance, monitoring and other services which you choose from Annexure A (Services);
      19. SLA: refers to the service level agreement attached to this agreement as Annexure D (SLA);
      20. VAT: means value-added tax, as defined in South African law.
    2. GrandWell (Pty) Ltd is a company with registration number 2014/142786/07, ISPA registered.
    3. Any reference to a law or regulation is to that law or regulation as at the Commencement Date, and as amended from time to time.
    4. In the event of any conflict between the provisions of the agreement or any order, annexure or schedule, the following order of precedence applies:
      1. first — this agreement;
      2. second — the service order;
      3. third — the other annexures or schedules duly signed by both parties.
    5. The expiry or termination of this agreement shall not affect those provisions which provide that they will operate after any expiry or termination.
    6. A reference to money in this agreement is a reference to the amount without VAT unless otherwise specified.
  3. Duration and termination
    1. Our agreement will endure from the commencement date until the latest of the end dates stipulated on the relevant schedule, unless terminated in terms of this clause 3, or unless renewed by agreement with GrandWell.
    2. Either of us may terminate this agreement without notice if the other party fails to comply with a material obligation under this agreement or any schedule. Termination will take place after the party not at fault has given the other party no less than 15 (fifteen) business days' written notice to remedy the breach, and that party has not remedied the breach within that period.
    3. If an event described in clause 16.6 (force majeure) lasts for longer than 30 (thirty) days, then either of us may terminate the agreement immediately by giving written notice to the other.
    4. We may also terminate the agreement if you use the equipment, software or service in a manner that results in a material disruption to the services or network; if our agreement with our supplier/s is terminated for any reason; or if you breach the terms of this agreement on 3 (three) occasions within any period of 12 (twelve) months.
    5. You may cancel an order within 48 (forty-eight) hours of placing it unless we have already concluded a schedule.
    6. GrandWell shall be entitled to cancel this agreement immediately and without notice to you, in the event you are sequestrated, placed into liquidation (provisional or final) or go into business rescue, as applicable.
    7. If you wish to terminate a service/s schedule prior to the end date, you will be liable for cancellation charges as per clause 4.
  4. Early Termination Costs
    1. The termination fee shall be calculated on the outstanding fees and charges for each Terminating Service as at the termination date, determined as follows:
      1. If terminated prior to the Service Commencement Date: an amount equal to the higher of (i) the NRC plus six (6) months of the MRC, or (ii) the actual costs incurred by GrandWell prior to the termination notice;
      2. If terminated after the Service Commencement Date and the Contract Term is twelve (12) months or less: 100% of the MRC for the remainder of the Contract Term;
      3. If terminated after the Service Commencement Date and the Contract Term is greater than twelve (12) months: 100% of the MRC for the remainder of the first twelve (12) months (if any), and 50% of the MRC for each month thereafter.
  5. Charges and payment
    1. You are liable for the charges in the amounts set out in Annexure B (Charges).
    2. We shall issue an invoice to you at the end of every month which contains the charges due by you.
    3. You shall continue to make payment of the charges as they fall due even if any dispute arises concerning the charges or any other matter.
    4. Invoices will be emailed to you. You accept electronic invoices as valid invoices.
    5. Save for the initial payment, NRC, and voice usage charges, all charges payable including the MRC must be paid monthly in advance on or before the first day of the month. All voice usage charges are billed monthly in arrears and must be paid within 30 (thirty) days of the date of our invoice.
    6. All payments must be made in South African Rand, free of exchange, set-off or deduction, and by debit order unless otherwise agreed in writing, to the following account:

    GrandWell (Pty) Ltd

    Bank: Nedbank

    Account number: 1129783758

    Branch code: 198765

    Reference: GrandWell

    1. If you fail to make any payment on the due date, GrandWell may suspend its obligations and shall be entitled to charge interest on the overdue amount at the rate of 2% above the prime rate, plus any additional costs incurred as a result of your failure to pay.
    2. The charges are subject to ad hoc increases resulting from increases in the price charged by suppliers, inflation, or any other reasonable cause. The charges may also be increased once per annum in line with the consumer price index.
    3. Where we charge for our services in arrears, we will need to carry out a general credit check on you before accepting the service order or at any time during the term of this agreement. By entering into this agreement, you consent to us conducting this check.
  6. Commissioning/acceptance
    1. We will use our reasonable efforts to commission equipment and services for you by the agreed date, but we are not liable for any delay that results from dependence on other licensees or third parties.
    2. We will only commission equipment and services where the relevant charges have been paid as required.
    3. Once commissioned, we will notify you that the order has been fulfilled. The equipment and/or services will be deemed to be accepted by you. A TOC will be issued on request.
  7. Equipment
    1. In the event that we have sold equipment to you, ownership shall not pass to you until such time as you have paid in full for that equipment. You may not permit any liens to be taken over the equipment, nor may you offer it up as security for any debt.
    2. Risk in the equipment will pass to you on delivery whether or not you have paid for the equipment in full.
    3. You shall install all equipment according to our instructions and you may not decompile, reverse engineer, modify, tamper with, add to or in any way alter the equipment.
    4. You may not change the location of the equipment without written notice to and approval from GrandWell. If you do, GrandWell will no longer have any obligation to provide services to you.
  8. Warranty
    1. We will use our reasonable efforts to ensure that the equipment and services supplied to you will meet your requirements, but we do not warrant that they will do so.
    2. The equipment may be subject to a warranty as set out in Annexure C (Equipment). If the equipment is subject to warranty, we will repair or replace it as required, provided you notify us of the problem within 7 (seven) days of it arising.
    3. We will repair or replace faulty equipment and/or repair any fault on the GrandWell network in as short a time as possible and as set out in the SLA, but we will not be liable for any loss or damage you may suffer during the period when you cannot access the services.
    4. Except as specified in this agreement or a schedule, we make no warranty, whether express or implied, concerning the equipment, network or services including fitness for purpose and non-infringement.
    5. You warrant that: (a) you are authorised to enter into this agreement; (b) you are authorised to use your intellectual property; and (c) you are a licensee and will remain a licensee for the duration of this agreement.
  9. Services
    1. This agreement applies to every schedule that we may conclude.
    2. If the services are to be provided to a specific location, you may not change that location without written notice to GrandWell.
    3. Our services and network are provided in some cases by other licensees or third parties who we depend on. Although we will exercise all our rights under our agreements with those parties, we may not be able to continue to render services to you in the same way or at all.
    4. You may not disassemble, decompile, reverse engineer, copy, or distribute any software we license to you; use the software for any purpose other than that for which it is provided; or use the software with equipment other than that supplied by us specifically for that software.
  10. Your other obligations
    1. You must enable the installation of any equipment, provision of services, and connection to and use of the network in the manner in which you are instructed by us.
    2. You must ensure that you have obtained consent from the owner or occupier for GrandWell to access the location where you wish the services to be provided or the equipment installed.
    3. You may not do or omit to do anything that directly or indirectly damages the equipment or our network or compromises our services.
    4. You shall be liable for any expense incurred by us in remedying the effects of your breach and shall, on demand, reimburse GrandWell accordingly.
  11. Intellectual property and confidential information
    1. You will not have any rights of ownership or use in or to the trademarks, design, specification, software and other intellectual property in and in relation to the equipment, network and services, other than as set out in this agreement.
    2. You may not remove, alter or add to the serial numbers, identification numbers, labels, trademarks, logos or other identifying symbols that exist on the equipment.
    3. Each of us will keep confidential information of the other safe from unauthorised disclosure using a reasonable standard of care. Confidential information shall be treated as confidential for the entire period of this agreement and for a period of 1 (one) year after it is terminated.
  12. Liability
    1. We will not be liable for: (a) your misuse of the equipment or services; (b) any issues with equipment not covered by warranty; or (c) delay in delivery for any reason.
    2. We will not be liable for your compliance with any laws that may govern your purchase or use of the equipment and/or services.
    3. If for any reason we are held to be liable for any damage or loss suffered by you, we will only be liable for direct damage or loss and not consequential or indirect damage or loss, or loss of profit. Our total liability in any event will not exceed the amount of the charges paid by you to us in the immediately preceding 6 (six)-month period. You indemnify us and our suppliers against any loss, cost, damage or expense resulting from any claim against us by virtue of your breach of any of the terms and conditions of this agreement.
  13. Monitoring and data collection
    1. We are obliged by our suppliers and regulatory authorities including ICASA to monitor performance of the equipment and services on the GrandWell network from time to time. We will give you as much notice as possible of any requirements in this regard.
    2. We may need to disclose your data to our supplier to enable them to enter your premises as our agent, or to effect repairs or maintenance on part of the GrandWell network.
  14. Dispute resolution
    1. If a dispute arises between us you and GrandWell shall implement the following dispute resolution procedure:
      1. First level escalation: the sales manager or a representative of each party shall attempt to resolve the dispute amicably within 5 (five) business days.
      2. Second level escalation: if first level escalation is not successful, the parties shall refer the matter to the chief executive officers or representatives of equivalent status who shall attempt to resolve the dispute within a period of 15 (fifteen) days.
      3. Third level escalation: if still unresolved, either of us may refer the matter to arbitration for final resolution in Johannesburg by the Arbitration Foundation of South Africa (AFSA).
    2. This clause shall not prevent the parties from approaching a court with jurisdiction to obtain urgent interim relief.
  15. Restraint
    1. For the duration of the agreement and for a period of 1 (one) year following the termination of it, you may not directly or indirectly persuade, induce, solicit, encourage or procure any employee or representative of GrandWell to terminate his or her employment or relationship with GrandWell.
  16. Notices and addresses for service
    1. Unless otherwise specified any notice or communication in terms of this agreement must be in writing and sent by hand, registered post or e-mail to the addresses below:

    GrandWell Pty Ltd, for the attention of the Managing Director

    Address: Block A, South Boulevard Rd, East Gate Office Park, Bruma

    Phone: 087 265 7132

    Email: contact@grandwell.co.za

    1. A party may change its address to any other address within South Africa. Such change will only take effect upon receipt or deemed receipt of such notice by the other party.
    2. If sent by e-mail, a notice shall be deemed to have been received on the first day following the date on which it has been transmitted from the information system under the control of the sender.
  17. General
    1. No indulgence by either of us in favour of the other will affect the terms and conditions or any of the rights of the party granting the indulgence, and it will not constitute a waiver of the relevant party's rights.
    2. Even if one of the clauses of these terms and conditions is not valid, that will not affect the validity and binding nature of the rest of them.
    3. No amendments will be valid unless both of us have agreed to them and signed a document containing the relevant amendment.
    4. The interpretation of this agreement will be governed by the laws of South Africa. We agree that this agreement is subject to the exclusive jurisdiction of the Verulam Magistrate's Court.
    5. If either of us cannot perform our obligations under the agreement because of an event over which we could not have had control — including power outages, supplier's shortage of materials, act of war, civil disturbance, state of emergency, strike, fire, flood, drought or change in law (force majeure event) — then that event will not result in either of us being in breach of this agreement. However, we undertake to advise one another as soon as possible of the force majeure event and take such steps as are possible to limit its effect and duration.
    6. We may cede, assign or transfer any or all our rights or obligations under this agreement without your permission. You may not do so without our prior written permission.
    7. We may use resellers to market, sell and distribute the equipment and services; however, these terms and conditions shall prevail over any less onerous terms.