THERMOLOGIX (PTY) LIMITED
SERVICE LEVEL AGREEMENT WITH CUSTOMER
1. DEFINITIONS:
In this Agreement:
1.1. “Activation Date” shall mean the date of payment of the Registration Fee and the date of confirmation of the debit order for the Subscription Fee by the Customer’s banker, whichever date is later;
1.2. “Registration Fee” shall mean the purchase price and shipping cost of the device/s, together with the first months Monthly Subscription Fee and cell phone company subscription fee or if applicable annual fees;
1.3. “Agreement-the/this” shall mean this Memorandum of Agreement together with all schedules, addendums thereto as well as all amendments affected in terms of clause 17 below;
1.4. “Control unit” shall mean the Customer’s device which is capable of connection by radio interface/GSM to the Network;
1.5. “Tag” shall mean the Customer’s transmitting device which is capable of connection by radio/GSM interface to the Network;
1.6. “the Customer” shall mean the person or entity entering into this Agreement with Thermologix and/or who is more fully described in the application form;
1.7. “the Network” shall mean the telecommunications system operated and made available by Thermologix .
1.8. “Regulatory Authority” shall mean the Independent Communication Authority South Africa (ICASA) and its successors in title;
1.9. “the Services” shall mean the services provided by Thermologix by means of the Network, as well as such other additional services as Thermologix may, at its sole option, make available to the Customer from time to time, pursuant to these terms and conditions, including without limitation, the provision of:
1.9.1. Send e-mail and SMS messages limited to 200 SMS’s send on a Service contract;
1.9.2. If Thermologix deliver more SMS ‘s as allowed per contract the tariff for such SMS will be charged at R1.00 per sms to the customer. The Customer will be allowed to buy further bundles to use SMS facilities at a discount rate on a prepaid basis;
1.9.3. Access to software web;
1.10. “Service” shall mean full cover in respect of all Services that are supplied by Thermologix, within the constraints of this Agreement ;
1.11. “SIM card” shall mean the Subscriber Identity Module Card allocated to the Customer to enable the Customer to gain access to the Network;
1.12. “Monthly/annual Subscription Fee” shall mean the monthly or annual fee payable by the Customer in respect of access to the Network which fee will escalate with the greater of 5% or CPI per annum;
1.13. “Charges” shall mean the payments for the purchase of additional Units or Services as requested by the Customer;
1.14. “Renewal” shall mean the renewal and annual escalation in respect of each transaction, effected at the expiry of the Initial Period and each period of 12 (twelve) months of this Agreement thereafter, as elected by the Customer and, as determined by Thermologix in its sole discretion;
1.15. “Penalty” shall mean the amount payable if the Customer cancels this Agreement within the Initial Period and any period of Renewal;
1.16. “Thermologix” shall mean Thermologix (Pty) Ltd with whom the Customer has entered into this Agreement for the provision of the Services;
1.17. “Initial Period” shall mean the first 12 (twelve) months period from the Activation Date;
1.18. Words denoting any one gender shall include the others, the singular shall include the plural and natural persons shall include other legal entities.
2. PROVISION OF THE SERVICES:
2.1. Subject to this Agreement, Thermologix shall activate the Unit and Tags and maintain the availability of the Services to the Customer throughout the duration of this Agreement.
3. DURATION:
3.1. This Agreement will commence on the Activation Date and, subject to the terms of this Agreement, shall continue for the Initial Period and thereafter until terminated by either party and not less than 2 (two) calendar months written notice.
3.2. This Agreement may be terminated by either party on not less than 2 (two) calendar month’s written notice and on condition that the products used by the customer are returned on date of termination, except that no notice may be given so as to require termination
3.2.1. Prior to the expiry of the Initial Period; and/or
3.2.2. Where renewal has been affected by the Customer, prior to the expiry of the Period of Renewal.
4. CHARGES AND PAYMENT:
4.1. The Registration Fee is due and payable by the Customer to Thermologix in full, prior to the Unit and Tag being supplied to the Customer.
4.2. The Subscription Fee together with Charges payable shall be payable monthly in advance per debit order.
4.3. Any amount due by the Customer to Thermologix that is not paid on due date therefor shall bear interest at a rate equal to the maximum rate allowable by law, calculated from the due date to the date of actual payment. In addition, should any payment instrument tendered by the Customer or amount drawn by Thermologix in terms of a debit order authority not be met by the Customer’s bankers, Thermologix reserves the right, in its sole discretion, to levy a fee in regard thereto.
4.4. A computerised account or a certificate signed by a Credit Manager of Thermologix (whose designation need not be proved), setting out the amount due by the Customer to Thermologix shall be prima facie proof of such amounts as well as the due date thereof.
4.5. In the event of the termination of this agreement prior to the expiry of the Initial Period as specified in clause 3 above, or any period of Renewal, as the case may be, Thermologix shall have the right to claim immediate payment of all and any outstanding charges owing to Thermologix and 2 months Subscription Fees as Penalty will also be levied and payable. The Customer shall be obliged to effect payment of the amount so claimed and the provisions of clause 11.2 below, shall mutatis mutandis apply.
4.6. The charges utilised by Thermologix may vary from time to time and the Customer shall be bound to pay such varied Tariff with effect from the date of publication thereof by Thermologix.
4.7. If so required by Thermologix in its sole discretion the Customer shall effect payment of all amounts due to Thermologix by means of a direct debit order against the Customer’s banking account. The Customer shall not be entitled to withdraw or revoke the authority of Thermologix to draw against its banking account during the currency of this Agreement without the written consent of Thermologix.
4.8. All fees, charges and prices set out in this Agreement and/or any price list from time to time are exclusive of Value Added Tax, which shall additionally be borne and paid for by the Customer at the prevailing rate from time to time unless otherwise stated.
5. LISTING OF SIM CARD:
5.1. Should the Customer default in any of his/her payment obligations during the Initial Period or the period of Renewal, as the case may be, then Thermologix shall be entitled to prevent the further use of the Unit and the Customer indemnifies Thermologix in respect of any claim whatsoever arising from Thermologix exercising its right in terms hereof.
5.2. In the event of the theft or loss of a control unit, the Customer shall be entitled to request Thermologix to list such SIM card as stolen or lost, on the basis as determined by the prevailing policy of Thermologix from time to time. Thermologix shall affect such listing provided that all required information has been supplied by the Customer.
5.3. Thermologix shall be entitled to levy a reasonable charge for the listing referred to in clause 5.2 above and/or the removal of a SIM card from the listing, as the case may be.
6.
DISCLOSURE OF INFORMATION:
Thermologix may, to the extent permitted by law, receive or disclose the Customer’s personal information, documents, credit profile information and/or any other credit information from or to –
6.1. Any credit providers, credit bureau or credit reporting agencies
6.2. Any law enforcement agencies that require the information for the prevention or investigation of criminal activities;
6.3. Any of Thermologix’s shareholders, related entities, suppliers, agents or professional advisors for reporting, accounting, product supply and service, marketing and/or auditing purposes. Only internal related entities will have access to the mentioned data.
7.
CUSTOMER ACKNOWLEDGEMENT:
The Customer acknowledges and agrees that –
7.1. Service quality and coverage available to the Customer shall be limited to that provided by the Network and the Services may, from time to time, be adversely affected by physical features such as buildings and underpass, as well as atmospheric conditions and other causes of interference; and
7.2. Thermologix will on best effort basis deliver the service to customer at all time, but he/she shall not hold Thermologix liable for any non-availability of the Services.
8. LIABILITY:
8.1. Thermologix will on best effort basis deliver the service to customer at all times. The Customer indemnifies and holds Thermologix and all Thermologix service providers harmless against any expense, loss, claim, harm or damage brought against, suffered or sustained by Thermologix, which arises directly or indirectly out of a breach of the terms of this Agreement either by Thermologix or the Customer or by the use by the Customer of the Services and/or the Unit and/or the Tag irrespective of the cause thereof.
8.2. Thermologix shall not be liable to the Customer for any loss from any cause whatsoever and the Customer shall not be entitled to bring any claim or action against Thermologix caused by any action or omission of Thermologix.
8.3. Without affecting the generality of clause 8.1 above, Thermologix shall not be liable to the Customer for any breach of this Agreement or failure on Thermologix’s part to perform any obligations as a result of technical problems relating to the Network, termination of any license to operate or use the Network, act of God, government control, restrictions or prohibitions or other government act or omission, whether local or national, act of default of any supplier, agent or sub-contractor, industrial disputes or any other cause beyond the control of Thermologix.
9.
CUSTOMER UNDERTAKINGS:
The Customer shall –
9.1. Comply with all REASONABLE instructions issued by Thermologix which concern the Customer’s use of the Services, the Unit, the Tag or related matters; and
9.2. Not be entitled to commercially exploit the Services in any manner whatsoever without Thermologix’s prior written consent; and
9.3. Provide Thermologix with all such necessary information as Thermologix may, in its sole discretion, require,
9.4. In the case of termination at all times within 30 calendar days return the control unit to Thermologix.
10. SUSPENSION / DISCONNECTION:
10.1. Thermologix may from time to time and with written notice to the Customer, suspend the Services or disconnect from the Network the Unit or Tag, in any one of the following circumstances:
10.1.1. During any technical failure, modification or maintenance of the Network; or
10.1.2. If the Customer fails to comply with any of the terms and conditions of this Agreement; or
10.1.3. If so directed by the Regulatory Authority; and in such event, the provisions of clause 8.2 and where applicable, clause 11.5 shall mutatis mutandis apply.
10.2. Having regard to the circumstances at the time of suspension, disconnection or reconnection, as the case may be, Thermologix shall be entitled to levy a reasonable fee in respect of such suspension, disconnection and/or any reconnection.
10.3. Where this Agreement is terminated at the instance of the Customer in accordance with clause 3.2 above, Thermologix shall be entitled to disconnect the Customer’s Unit and Tag at any time on the relevant date of cancellation whereupon the provisions of clause 11.5 shall mutatis mutandis apply and the Customer shall have no claim of whatsoever nature against Thermologix pursuant to the exercise of Thermologix of the right conferred hereunder.
11. TERMINATION:
11.1. In the event that the Customer breaches any term of this Agreement, then without prejudice to Thermologix’s other rights in terms of this Agreement or at law, Thermologix may forthwith and without notice to the Customer, terminate this Agreement or call for specific performance of the Customer’s obligations, the return of the control unit and immediate payment of all sums owing by the Customer.
11.2. The Customer shall pay to Thermologix the Penalty in terms of clause 4.8 above and all charges for access to the Network in respect of the expired portion of the contract period. The payment of such charges shall be accelerated and same shall become immediately due and payable upon termination of this Agreement.
11.3. Thermologix may elect to charge a reasonable fee for disconnection of the Customer’s Unit from the Network.
11.4. The Customer shall repay to Thermologix on demand all costs which Thermologix incurs as a result of the Customer’s failure to comply with the terms and conditions of this Agreement or any cancellation hereof, which may include:
11.4.1. Costs in connection with the tracing of the Customer and/or the SIM card; and
11.4.2. All legal costs on the attorney and own client scale; and
11.4.3. Collection commission that may legally be recovered from the Customer by Thermologix’s attorneys or collection agents on amounts collected; and
11.4.4. The costs incurred in obtaining possession of the Unit, Tag and SIM card as well as the cost relating to the valuation, removal, transport, repair, maintenance and storage thereof
11.5. Any unused Services existing at the termination and/or cancellation of this Agreement shall be forfeited and the Customer shall have no claim of whatsoever nature against Thermologix in respect thereof.
12. LOSS OR THEFT OF SIM CARD, UNIT AND TAG:
12.1. The Customer shall notify Thermologix immediately that he/she becomes aware of the loss or theft of his/her SIM card, Unit and Tag, which notification may, at Thermologix’s discretion, be required to be confirmed in writing. In addition, the Customer undertakes to comply in full with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002.
12.2. Any loss, theft, damage or destruction of the Customer’s SIM card, Unit and Tag shall not affect the liability of the Customer to continue to pay the Subscription Fee to Thermologix for the duration of this agreement
13. POLICIES AND
PROCEDURES OF THERMOLOGIX:
The Customer agrees to comply with and implement the policies and procedures of Thermologix from time to time in relation to the Services, his/her SIM card, the Unit and the Tag, the Network and the use thereof.
14. SET OFF:
The Customer shall not be entitled to withhold any payment or set off or reduce any payment by reason of any claim which the Customer may have or aver to have against Thermologix.
15. COMMUNICATION:
The Customer hereby consents to the dispatch or transmission by Thermologix of all and any communications, whether for informational, marketing or any other purpose whatsoever, in terms of the Electronic Communications and Transactions Act 25 of 2002
16. ASSIGNMENT:
The Customer shall not cede, assign, transfer, encumber or delegate any of the rights or obligations in terms of this Agreement to any third party without the prior written consent of Thermologix.
17. WHOLE AGREEMENT:
This Agreement with the Application Form, Surety and Debit Order constitutes the whole agreement between the parties and no representations or warranties other than those set out herein shall be binding on the parties, save for any amendment affected in terms of clause 16 above.
18. NOTICES AND DOMICILIA:
18.1. The Customer chooses as his/her domicilium citandi et executandi, the address set out in the Application Form or such other address of which the Customer may notify Thermologix in writing provided such address is not a post office box or poste restante.
18.2. All notices given in terms of this Agreement shall be in writing.
19. SEVERABILITY:
In the event of any one or more of these terms and conditions being unenforceable, same will be deemed to be severable from the remainder of this Agreement which shall nevertheless be binding and enforceable.