In these General Conditions, unless the context clearly otherwise indicates, the words referred to in the Schedule shall have the meanings assigned to them therein. Headings shall not influence the interpretation of clauses.
2.1 The lease shall be for the Lease Period stated in Item 6 of the Schedule.
2.2 The equipment and sim card remain the property of the Lessor for the full period of the lease and cannot be sold, lent or ceded to any other person. The Lessee shall at no stage, either during or after expiry of the lease, acquire ownership of the equipment or the sim card and on termination of the lease, the Lessee shall be obliged to return the same to the Lessor.
RENTAL AND COSTS
3.1. With effect from the Commencement Date the Customer shall pay to the Company the Monthly Rental as set out in Item 8 of the Schedule.
3.2. The Customer shall pay all SIM and connection fees and other charges and imposts payable in respect of the Equipment.
3.3. The Customer shall pay the Rental monthly in advance commencing on the Commencement Date of the Lease Period, and thereafter on the 1st day of each calendar month, into the bank account set out in Item 12 of the Schedule or at such other address as the Company may notify to the Customer in writing, from time to time.
3.4 The Customer shall pay the Rental to the Company by means of a salary deduction instruction or a debit order. In this respect the copies following forms are annexed hereto and marked as:
3.4.1 Salary deduction authorisation marked as Annexure “B”.
3.4.2 Debit order instruction marked as Annexure “C”.
3.5 Should the customer have selected the payroll deduction option the Customer shall ensure that the form Annexure “B” is delivered to its employer within 5 (five) days of signature of this Agreement.
3.6 In the event that, despite the delivery of the signed salary deduction authorisation, the Rental remains unpaid, the Customer hereby expressly authorises the Company to deduct the Rental from its nominated bank account in accordance with the signed debit order authorisation form annexed hereto and marked as Annexure “C”.
3.7 In the event that the Company reverts to the debit order system, as referred to in clause 3.6, the customer agrees to pay to the Company the additional debit order collection fee as stated on the order authorisation form annexed hereto and marked as Annexure “C”. The customer acknowledges that the fee is payable to the Company:
3.8 In the event that the customer does not pay the required amount (as per clause 3.7) within the required amount of days the Company will then revert to the following possible collection procedures:
3.8.1 attempts will be made to collect outstanding fees via the non-authenticated early debit order (NAEDO) system for the processing of outstanding debit orders.
3.8.2 outstanding amounts will be added to the following months’ debit order.
3.8.3 debit orders will continue to be run on the customers account beyond the contract termination period until such time as all outstanding amounts are fully settled and the device is returned.
3.9 The monthly Rental and other payments payable by the Customer in terms of this Agreement shall be paid in accordance with clauses 3.4 and 3.6 above without demand, free of exchange and without any deduction or set-off whatsoever.
3.10 All amounts referred to in this Agreement are inclusive of Value Added Tax which is, or might become payable in respect thereof, and which shall be for the Customer’s account.
3.11 The Company reserves the right to increase the monthly rental amount should package prices supplied by MTN or any other suppliers be increased. Notification of this increase will be communicated to the customer at least 30 days prior to any proposed increase.
3.12 In the event that the Company reverts to the debit order system, as referred to in clause 3.4 and 3.6 and in order for the Company to verify and quantify the credit worthiness of the Customer the Company reserves the right to check the credit records of the Customer by means of credit checks using recognised professional verification services. In as much the Company will verify the following (and any other suitable) information pertaining to the Customer:
3.12.1 Identity verification
3.12.2 Banking detail verification
3.12.3 Credit worthiness verification
3.12.4 Employment verification
3.12.5 Proof of address verification
3.12.6 Proof of income verification
3.12.7 Fraud assessment
The Customer hereby warrants that the Company has their express permission to check all details as listed above and any other information reasonably required by the Company to accurately assess the financial affordability of the Customer.
4.1 In addition to the Monthly Rental, the Customer shall be liable for and on demand shall pay to the Company any costs arising out of his/her use of the Equipment and which use exceeds the Inclusive Airtime. The Company will invoice the Customer for such costs on a monthly basis and the Customer will pay such costs to the Company within 15 (fifteen) days of the date of presentation of such invoice.
4.2 Failure to pay in terms of this clause 4 within 7 (seven) days of receipt of written notice as contemplated in clause 11 shall (in addition to the Company’s other rights in terms of these General Conditions) entitle the Company to recover possession of the Equipment and to discontinue the service. In such event the Company shall not be responsible for any damages, direct or consequential.
USE OF EQUIPMENT
5.1 The company will deliver the Equipment with the sim card installed and activated on the device.
5.2. The Customer shall:
5.2.1 take good care of the equipment and keep it in proper working condition at all times.
5.2.2 report physical damage or loss of the device to the company immediately.
5.2.3 not tamper with the Equipment in any manner;
5.2.4 utilise only repair outlets approved of by the Company in the event that the Equipment require repairs to be carried out and which repairs are not covered by any manufacturer warranty;
5.2.5 not allow the use of any illegal or unauthorised accessories with the Equipment;
5.3 The Company does not warrant that the Equipment is suitable for the purposes required by the Customer.
5.4 The Customer shall not contravene or permit the contravention of any legislation under which the Equipment is held by the Company. Nothing in this clause shall entitle any person to oblige the Company to take action in terms of this sub-clause nor shall any person derive any rights from the provisions of this clause.
5.5 For the duration of the Lease Period, the Company shall be entitled to monitor the Customer’s use of the Equipment by means of electronic device management (“EDM”).
5.6 The company will only allow the equipment and sim card to be used within the borders of the Republic of South Africa. Any breach of this clause will render the insurance policy as mentioned in clause 8 null and void and all subsequent loss or repair claims will be for the account of the Customer.
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
6.1. The Customer may NOT make alterations or additions to the Equipment without the Company’s prior written consent, which consent may be withheld. Any alteration or addition will be solely at the cost of the Customer.
6.2. In the event of the Customer failing, or being unable to, remove such additions or alterations the Company shall not be obliged to compensate the Customer therefore and the extent of such alterations or additions shall become the property of the Company at the end of the Lease period.
6.3 In the event that the alterations or additions contemplated in this clause 6 having caused damaged to the Equipment, the Customer will make good, at their own cost, any damage caused by such alterations or additions and in the event that such damage caused by the alterations or additions is incapable of being repaired, the Customer shall be liable for the replacement value of the Equipment.
MAINTENANCE AND PATENT DEFECTS
7.1 The Customer shall maintain the equipment in good and proper condition and shall not do anything that shall void or affect in any way the manufacturer’s warranty in respect of the Equipment.
7.1.1 Any faulty Equipment shall, together with all original packaging and accessories, be returned to the Company immediately upon such fault becoming apparent to the Customer;
7.1.2 The Company shall then repair or replace the Equipment.
7.2 The Customer shall care for and maintain the Equipment and the Customer shall be responsible for any damage caused by the Customer or theft arising in respect of the Equipment.
7.3 The Customer shall at the termination of the Lease Period, return the Equipment and all parts thereof to the Company in the same good order and condition as they were at the Commencement Date, fair wear and tear alone excepted.
7.4 The Customer shall be entitled to notify the Company in writing of the details of any patent defects in the condition of the Equipment, provided that such written notice is given by not later than 30 (thirty) days from the commencement of the Lease Period.
7.5 Should the Customer have caused the damage to the Equipment a repair evaluation fee of R250 (two hundred and fifty Rands) shall be charged to the Customer. This evaluation fee shall be paid to the Company prior to the commencement of said repairs.
8.1 The Customer shall not either wholly or partially transfer or cede his/her rights and obligations contained in this Agreement to another, sublet the Equipment or give up possession without the Company’s prior written consent, which consent may be withheld.
8.2 The Company shall be entitled to cede, transfer or assign its rights under this Agreement at any time during the currency thereof.
CUSTOMER’S OBLIGATIONS AND WARRANTIES
The Customer warrants that:
- He/she is not currently under debt review, nor is there any application pending for him/her to be placed under debt review.
- He/she shall comply with all laws and regulations relating to the Equipment as determined by ICASA requirements and standards from time to time and as monitored by the Company through the use of EDM.
- He/she shall provide the Company with a certified copy of his/her identity document within 7 (seven) days of the date upon which this Agreement is signed. Such certified copy shall be delivered to the Company’s nominated address as appears from Item 11.1 of the Schedule.
- He/she shall provide the Company with a copy of his/her latest available payslip or wage details within 7 (seven) days of the date upon which this Agreement is signed. Such copy shall be delivered to the Company’s nominated address as appears from Item 11.1 of the Schedule.
10.1 Should the Customer:
10.1.1 fail to provide the Rental or any other amount due by the Customer in terms of this Agreement on due date and fail to rectify such breach within 7 (seven) days of receipt of written notice from the Company calling upon it to do so; or
10.1.2 commit or allow the commission of any other breach of this Agreement and fail to remedy that breach within a period of 7 (seven) days from receipt of notice to that effect from the Company;
10.2 Then without prejudice to its rights at common law the Company shall have the right but shall not be obliged either to:
10.2.1 immediately cancel the Agreement by written notice to the Customer, immediately deactivate the Equipment and any supplied SIM card through the use of EDM and to recover possession of the Equipment, but without prejudice to its claim for arrears of Rental and costs and other amounts owing hereunder or for damages which it may have suffered by reason of the Customer’s breach of contract or of the premature cancellation; or
10.2.2 to vary the Agreement by written notice to the Customer by making it thereafter terminable by 1 (one) month’s written notice given by the Company.
10.3 Should the Company commit or allow the commission of any breach of this Agreement and fail to remedy that breach within a period of 7 (seven) days from receipt of notice to that effect from the Customer, then without prejudice to its rights at common law, the Customer shall have the right, but shall not be obliged to immediately cancel the Agreement by written notice to the Company provided that it shall, upon the delivery of notice to the Company, be obliged to return possession of the Equipment to the Company.
10.4 In the event that the Customer elects to cancel the Agreement as a result of a breach committed by the Company but fails to return the Equipment to the Company in accordance with clause 10.3 above, the Company shall be entitled to continue to charge the Customer the Rental, until such time as the Customer returns the Equipment to the Company.
10.5 The Party against whom a breach has been committed shall be entitled to recover from the other Party all legal costs incurred by it, including attorney and client charges, tracing fees and collection commission.
JURISDICTION OF MAGISTRATE’S COURT
The Company and the Customer consent to the jurisdiction of the Magistrate’s Court having jurisdiction over its person in respect of any action or application arising out of or in connection with this Agreement or in respect of the cancellation or purported cancellation hereof, notwithstanding that the amount in issue would otherwise exceed the jurisdiction of such Court.
The parties choose as their domicilia citandi et executandi the addresses referred to in the Schedule. All notices shall be deemed to be received by the addressee on the 5th (fifth) business day after posting thereof, or forthwith upon hand delivery of the notice for which acknowledgement of receipt shall be obtained, or by facsimile transmission, in which case a transmission slip shall act as prima facie proof of sending. The parties may change their domicilia to another address in the Republic of South Africa of which they may advise each other by written notice.
These General Conditions, together with the Schedule and the Agreement of Lease to which these General Conditions are attached, constitutes the whole Agreement between the parties and no warranties or representations, whether express or implied, shall be binding on the parties other than as recorded herein. Any agreement to vary this Agreement shall be in writing and signed by the parties. No relaxation or indulgence which the Company may show to the Customer shall in any way prejudice its rights hereunder. An acceptance of rental and costs or any other payment shall not prejudice the Company’s rights or operate as a waiver or abandonment thereof.
Each party will pay its own costs associated with the drafting and negotiation of this Agreement.
No relaxation of any of the terms of this Agreement by the Company and no indulgence which the Company may expressly or by implication concede to the Customer, shall in any way prejudice or constitute a waiver of its rights hereunder.
16.1 Where, in any provision hereof, the Company’s consent shall be required before any act may be executed by the Customer, such consent may be withheld.
16.2 The Equipment are let voetstoots and no representations, save as are recorded herein, have been made by the Company.