Terms and Conditions

1. MEANINGS OF CERTAIN WORDS AND PHRASES

  • Words, words and phrases used in the contract shall have the same meaning as the meanings set out in the Electronic Communications Act, 36 of 2005, unless used differently from the context or under this clause 1.
  • Words which import the singular must include the plural, and vice versa.
  • Words denoting persons shall include human persons, legal entities and individuals' unincorporated associations, and vice versa.
  • In these terms and conditions, the headings shall not impact their meaning.
  • Unless the meaning is incoherent, the following words and phrases shall mean as follows:
    • "Anticipatory costs" shall have the value provided for in clause 9.2.7;
    • "Start Date" means the day a Service has been activated and made available to the Client.
    • "Applicable regulation" includes all of the following in so far as it relates to Smart Data 's delivery of the Products and the Customer's use thereof:
      1. any rules, legislation, guidelines, ordinances or subordinate laws in effect from time to time; The laws include the ECA, CPA and RICA, without specifying the generality
      2. it is common law;
      3. any order, judgment or decision of any binding court;
      4. any industry code, regulation or enforceable norm applicable by law;
      5. any course, regulation, pronouncement, policy or order provided by a regulator in question.
    • 'AUP' means the policy of usage acceptable to Smart Data, available at www.smartdata.co.za
    • 'Business day' means Monday to Friday, except Saturday, Sunday or public holidays as specified in the Public Holiday Act, 36 of 1994;
    • "Circuit(s)" means the telecommunications circuit(s) given by Smart Data (or by a properly licensed third party on behalf of Smart Data), installed at the Customer's premises at the addresses set out in the Contract. "Excluded Circuits" are circuits procured by the Customer from a Party other than Smart Data;
    • “Connection Date” means the date on which Smart Data installs the Circuit at the premises of the Customer
    • “Consumer” means a Customer as set out in the CPA. “Individual Consumer” means a Customer who is a natural person–that is, not a business;
    • “Charges” means sums paid by Smart Data for Services as set out in clause 9.2 below, which payments are set out in the quotation and/or Subscriber Agreement or as notified by Smart Data from time to time under the terms of the Contract;
    • “CPA” Means the Consumer Protection Act, 68 of 2008, as amended or substituted from time to time, and the regulations contained therein;
    • “Commencement date” means the date on which Smart Data accepts and processes the Subscriber Agreement or notifies the Customer that it has agreed to provide the Services set out in the Subscriber Agreement to the Customer;
    • “Customer” means the person identified in the Subscriber Agreement and where that definition is not entirely correct, as further defined in any documentation given to Smart Data pursuant to the RICA requirements;
    • “Due date” means the date on which any amount owed to Smart Data by the Customer in respect of the Services is due and payable and reflected in the invoice;
    • “ECA” means the Electronic Communications Act 36 of 2005, as amended or substituted from time to time, and its regulations;
    • “Fixed Term Agreement” refers to a Subscriber Agreement in respect of which the Products are given for a period of more than one month;
    • “General Terms” means these general terms and conditions without the Subscriber Agreement, Quote or Product Terms, but without some change to those terms and conditions;
    • “ICASA” means South Africa 's Independent Communications Regulator, and its successors;
    • “Initial Period” means the number of months applicable to the Fixed Term Agreement and limited to no more than 2 (two) years for any avoidance of doubt in the case of a Consumer;
    • “Interest Rate” means an average rate of 5 percent more than the prime lending rate paid by banks of Smart Data, measured on a daily and monthly basis;
    • “Office hours” means 8h00 to 17h00 on Business Days;
    • “Parties” means Smart Data and the Customer and “Party” means either Smart Data or Customer, as the context requires;
    • “Personal Data” means all identifiable personal details conveyed to Smart Data by the Customer for lawful processing;
    • “Product Terms” means all identifiable personal information transmitted by the Customer to Smart Data for legal processing;
    • “Renewal Period” means a term of 12 (twelve) months commencing on the day after the last day of the initial period;
    • “RICA” means the Regulation of Interception of Communication and Provision of Communication Regulated Information Act 70 of 2002, as amended/replaced from time to time;
    • “Services” means the Services as listed in the Subscriber Agreement, and where applicable includes the Managed Service Equipment and the Circuit;
    • “Software” means any computer program provided to Customer, either through Smart Data acting as a principal, agent or distributor of the software licensor. Software may be embedded into Managed Service Equipment, supplied as a stand-alone application, or accessed via the internet or other web browsing
    • “Subscriber Agreement” means the document describing the Customer, the Services to be provided, and other administrative data;
    • “Subscriber Equipment” means the equipment as defined in section 1 of the ECA, but excludes Managed Service Equipment;
    • “Managed Service Equipment” means equipment managed by Smart Data in the provision of the Service;
    • “Smart Data” means Smart Data Telecommunications (Pty) Ltd, Registration number (2019/396493/07), a private company incorporated in terms of the laws of the Republic of South Africa;
    • “Smart Data Network” means the electronic communications network run by Smart Data to make electronic communications services in terms of the electronic communications network and service licenses for Smart Data. Smart Data Network includes Circuits provided by Smart Data under its licenses or procured by third party licensees through Smart Data;
    • Smart Data Portal" Any Smart Data approved extranet(s) or web-based system(s) where, among other things and where applicable, the Customer and its authorized employees, agents and representatives have access to:
      1. show the Resources selected for measurement;
      2. have access to control panels and control interfaces to provide, update, uninstall, raise, decrease (generally to manage) the Services;
      3. process termination of Services;
    • If there are multiple days between the occurrence of one case and another, the number of days shall be determined by: -
      • Except the day on which the first occurrence takes place;
      • Namely the day the second occurrence occurs on or by;
      • Excluding any weekends, on Saturdays or Sundays.
    • In the case of a dispute between a Subscriber Agreement, Service Terms or General Terms, by applying the following order of choice, the dispute shall be resolved:
      • A Subscriber Agreement; thereafter
      • Product Terms; thereafter
      • General

 

2. NATURE OF THE GENERAL TERMS AND CONDITIONS

  • Such General Terms control the delivery of all services and the Customer-Smart Data relationship in general.
  • If Smart Data and Customer conclude multiple Subscriber Agreements, but only one set of General Terms and Conditions, then that set of General Terms shall apply to all Subscriber Agreements, irrespective of whether the system generated contract numbers on the documents is not the same
  • If Smart Data and Customer conclude multiple Subscriber Agreements, each with its General Terms version, then the General Terms will apply only to the relevant Subscriber Agreement –as evidenced by the contract number generated by the system.

3. DURATION,  RENEWAL  AND TERMINATION FOR CONVENIENCE

3.1. Commencement and duration of the Contract, billing start dates and renewal
  • The Contract shall become binding on the Parties on the date of commencement and shall remain binding on each Party until the expiration of the Initial Period or any Extension Period, unless one of the Parties has terminated this Contract earlier on the grounds set out in the Contract
  • With respect to a Service that does not involve the provision of a Circuit, or is provided over an Excluded Circuit, the Initial Period will begin on that Service's Activation Date. With respect to each Circuit, the Initial Period for Services rendered over that Circuit (whether or not bundled with the Circuit) will begin from the Date of Activation. Where the Services allow multiple circuits to be provided, the initial cycle will begin on the last circuit 's Connection Date.
  • If services are bundled with a Circuit, the Circuit's expense is the single most important aspect of the bundled service, and therefore, Customer decides that Smart Data would be allowed to charge Customer from the Connection Date, regardless of whether or not any bundled value-added services are enabled.
  • When Customer is a legal party then Customer shall:
    1. give written notice to Smart Data of its option not to renew the contract no later than 90 (ninety) days before the expiry of the initial period; or
    2. enter into updated User Agreement, in which the Extension Duration Agreement shall automatically be extended.
3.2. Cancellation or variation of the Services before the Connection / Activation date

Where the Customer cancels or changes any of the Smart Data services prior to the Contact Date for some reason other than a violation by Smart Data, Smart Data shall be entitled to charge the Customer Anticipatory Costs incurred by Smart Data as a result of the cancelation or change of the amount that the Customer shall pay on request.

3.3. Termination of a Fixed Term Agreement by an Individual Consumer for no cause
  • Where an Individual Consumer has concluded a Fixed Term Agreement, the Individual Consumer shall have the right, for no specific reason or purpose, to terminate the Fixed Term Agreement at any time, provided that the Consumer gives written notice of his election to terminate the Contract to Smart Data at least 20 (Twenty) business days. Such termination shall be subject to payment of a nominal cancelation charge, which shall be assessed and measured at the time the customer gives the notice of termination, using the guidelines set out in section 14 and CPA Regulation 5(2).
  • On receipt of the termination notice, Smart Data must inform the individual customer of the sums owed to it, including all the arrears owed by Smart Data in terms of the up-to-date termination contract and the cancelation charge. The Individual Consumer shall pay such amounts to Smart Data by Due Date.

 

4. INSTALLATIONS AND PROVISION OF THE SMART DATA SERVICES

4.1.Installation of Services, Managed Service Equipment, Subscriber Equipment and use of unauthorized devices
  • Unless where decided otherwise in a Subscriber Agreement, the Smart Data Service is exclusive of any Subscriber Equipment required. The Managed Service Equipment and the Subscriber Equipment, where applicable, will be either leased or sold to the Customer at the prices, fees or rates set out in the Subscriber Agreements.
  • Where Customer has agreed to buy Subscriber Equipment from Smart Data, Customer shall not be entitled for trivial reasons to withhold payment for the sale of Subscriber Equipment.
  • With respect to the provision of electronic communications services, Smart Data shall install the Circuit and Managed Service Equipment in the premises of the Customer against payment of the appropriate installation charge and deposit as provided for in the Subscriber Agreement.
  • When the Customer demands that an installation be attended to after office hours, Smart Data that charge a time-and-material after-hours maintenance fee, as calculated from time to time by Smart Data, whether it can perform such after-hours work.
  • LAN cabling pricing shall be considered budgetary until there has been a physical site survey to validate cable routes.
  • When no conduit pipes are available for use by Smart Data in any building where a service requiring conduit pipes must be installed by Smart Data, Smart Data can at its discretion:
    1. refuse to provide the Service in or any part of that building until such time as these conduits or other facilities have been installed;
    2. quote the installation cost for the required conduit pipes and, if accepted by the Customer, install the required conduit pipes or other equipment at the Customer's expense.
  • The responsibility of Smart Data to install the Circuit and Managed Service Equipment or Subscriber Equipment shall be terminated until the Circuit and, where necessary, the Managed Service Equipment or Subscriber Equipment has been supplied, installed and the Services can be provided by the Customer.
  • Only Subscriber Equipment approved by ICASA in type may be used in conjunction with the Smart Data Service. Registered model of equipment purchased from authorized dealers must have a registered ICASA style mark affixed to the equipment and/or packaging.
  • When the Subscriber Equipment is changed it cannot be used in combination with the Smart Data Service until the change has been approved by ICASA.
  • Smart Data reserves the right to suspend or disconnect from the Smart Data Network any Subscriber Equipment not approved by ICASA, or licensed or approved but modified without ICASA 's approval.
  • If the Customer is not the owner of the premises where the Smart Data Service and/or the Managed Service Equipment are to be installed, the Customer must obtain written permission from the owner of such premises for any such installation at his own expense and expense before any installation by Smart Data. The Customer shall indemnify Smart Data against penalties or lawsuits arising from the failure to receive such permission including anticipatory costs which may have to be incurred by Smart Data should any circuit and/or selected Subscriber Equipment be withdrawn from the premises by Smart Data. At its own expense and cost, the Customer must ensure that optimum environmental conditions such as sufficient power supply, ventilation, lighting and wall / rack space are provided as may be necessary for the proper management and/or functionality of the Circuit and Controlled Service Equipment or Subscriber Equipment.
4.2. Use of the Services, Managed Service Equipment and related equipment
  • The provision of any Service to the Customer does not give the Customer the right to resell the Service unless ICASA has given the Customer a license or license exemption and the Customer has entered into a smart data reseller agreement.
  • The service may not be used to:
    1. knowingly create, store or disseminate any illegal content;
    2. infringe on any third parties’ intellectual property or copyright; and
    3. send unsolicited
  • In order to ensure that the Service is delivered by Smart Data, to protect the credibility of the Smart Data Network or to cope with emergencies, the Customer must always:
    1. comply with any instructions issued by Smart Data which concern the Customer’s use of the Services;
    2. provide Smart Data with all information relating to the Customer's use of the Services that Smart Data may reasonably require from time to time; and
    3. allow Smart Data free access to the Customer’s premises during reasonable hours to install, inspect, maintain or remove the Circuit, Managed Service Equipment or Subscriber
4.3. Failure and unavailability of the Services, Managed Service Equipment or Subscriber Equipment obtained from Smart Data
  • Customer recognizes that the Internet and data networks are comprised of several participating networks operated separately and not subject to regulation by Smart Technology.
  • Regardless of the situation set out in clause 4.3.1 above, Smart Data does not warrant the maintenance of the Smart Data services on an annual basis of 24 (twenty-four) hours 365 (three hundred and sixty-five) days.
  • In fact, Smart Data expressly informs and understands and agrees that the Subscriber Equipment is not manufactured by Smart Data, but by third parties. In most cases, Smart Data will not be able to open certain Subscriber Equipment or test or operate the Subscriber Equipment selected to ensure that it is fit for purpose and/or intact before it is handed over to the Customer.
  • Considering the statements found in clauses 4.3.1-4.3.3 Smart Data explicitly stipulates, and the Consumer agrees that Smart Data cannot promise or recommend that the Services and/or Subscriber Equipment will:
    1. be free of errors or interruptions;
    2. be available;
    3. be fit for any purpose;
    4. not infringe on any third-party rights;
    5. be secure and reliable,

Except where the Systems, the Circuit and/or Subscriber Equipment was found to be defective and the defect was caused solely by Smart Data in compliance with sections 54, 55 and 56 of the CPA, where necessary.

  • Under the light of the aforementioned declarations, the Customer agrees that:
    1. Withhold any amounts due and owing to Smart Data; or
    2. Deduct any monies, or
    3. Allege a breach of contract

Where the Infrastructure, the Circuit or Controlled Service Equipment is temporarily inaccessible, unless and to the degree that Smart Data is solely responsible for any such unavailability or malfunction.

  • Notwithstanding the requirements of clause 4.3.4 above, Smart Data must make use of its best efforts to allow Smart Data to inform the Customer of any failure or interruption of the Services and/or Circuit and, where appropriate, of any maintenance and repairs needed that may result from such failure, interruption or unavailability.
  • Where the Cable, Controlled Service Equipment or the Subscriber Equipment is faulty or faulty, the rights of the Customer would be limited to those laid down in clause 10 in such a situation.
4.4. Theft and Loss of Smart Data Circuit, Managed Service Equipment and Subscriber Equipment provided by Smart Data
  • Whenever any Circuit, Managed Service Equipment or Subscriber Equipment purchased from Smart Data has been delivered but is not yet fully paid for is lost, stolen or destroyed, the Customer shall immediately notify Smart Data and any police officer at any police station in writing that the Circuit, Managed Service Equipment and or any other Smart Data equipment has been lost, stolen or misplaced or destroyed.
  • Risk in the loss, theft or damage of the Circuit, Managed Service Equipment and where appropriate the Subscriber Equipment will pass to the Customer on the date of delivery to the Customer's premises. Smart Data retains the right to keep the Customer responsible for the full cost of replacing the Managed Service Equipment or the related Subscriber Equipment and all other Smart Data equipment (and if the same equipment has been discontinued, then the full cost of replacing the most equivalent equipment available).
4.5. Maintenance of the Services and Managed Service Equipment
  • Any Circuit or Managed Service Equipment used by the Customer shall be deemed to be in good working order throughout the term of the Contract the Service until otherwise notified to Smart Data.
  • Notwithstanding where clauses 4.5.5 or 4.5.6 apply, or where expressly specified otherwise, the costs of any repair and/or maintenance of the Circuit and Service shall be borne and protected by Smart Data.
  • Smart Data will deal with deficiencies reported by the customer during office hours and will make fair efforts to restore the affected circuit and/or service as soon as possible.
  • It is the responsibility of the Customer to maintain all Managed Service Equipment and Subscriber Equipment unless Smart Data has agreed to provide services for the Managed Service Equipment, which will be paid at the rate set out in the Subscriber Agreement.
  • If the Customer demands that a fault be attended to immediately and needs repair work to be performed after office hours, Smart Data that charge a time-and-material after-hours maintenance charge as calculated from time to time by Smart Data, whether it can perform such after-hours work.
  • If Smart Data determines that the fault reported by the Customer was caused by the Customer, by any Subscriber Equipment or by any other equipment not covered by Smart Data, the Customer shall be liable for payment of the applicable call-out fees as determined from time to time by Smart Data.

 

5. USE OF SOFTWARE

  • The Customer shall only use any Software which Smart Data provides to it for the purposes for which it is intended.
  • The Customer shall not authorize any other person to reverse engineer, decompile, change, hack, change, improve, copy, sell, lease, license, sub-license or otherwise interact with the software or any part thereof, alter, modify, release or improve it, or have any software or program written or created for it based on the Software.
  • All rights of any kind in and to the Software and any enhancements, changes, adjustments and variations thereof from time to time shall be granted or assigned to the Customer in Smart Data or its licensors and no rights in and to the Software shall be granted or assigned to the Customer. The Customer shall not question or dispute the Software's ownership at any time in any way and undertakes not to infringe or prejudice any rights of Smart Data or its licensors within and to the Software.
  • Smart Data shall update any Software given to the Customer under the Subscriber Agreement (and, if not expressly addressed at its absolute discretion in the Subscriber Agreement);

 

6. USE AND STORAGE OF DATA

The Customer agrees that Smart Data may set generally acceptable practices and limitations for the use of the Services, including, for example: The time of retention of the Customer's email messages and other materials submitted to the Smart Data server, the quantity and size of material that the Customer may send or receive, and the available disk space that will be allocated to the Customer's Smart Data servers.

 

7. SMART DATA PORTAL

  • Smart Data grants a non-exclusive, non-transferable right to the Smart Data Portal(s) to clients.
  • Access to any such Smart Data Portal shall be provided to the Customer through an authorized User ID or other authentication mechanism provided by Smart Data.
  • Any adjustments made by Customer to Services on Smart Data Portal are binding, and Customer assumes full responsibility for payment obligations arising from changes made to the Smart Data Portal.
  • The Customer agrees that the data and information available to the Customer through the Smart Data Portal shall be considered to be identified as Smart Data Confidential Information and, as such, the disclosure and use of such documentation and information shall be controlled by the Confidential Information Conditions of this Agreement.
  • Customer shall take all necessary steps to ensure that all User IDs used in connection with accessing the Smart Data Portal are safe and complete.
  • Customer shall alert Smart Data if Customer has reason to suspect that a User ID used in connection with access to the Smart Data Portal is or is likely to be known to someone who is not allowed to use it or who is or is expected to use it in an unauthorized manner.
  • Smart Data reserves the right to revoke User ID access to the Customer's Smart Data Portal if, after consulting with the Customer whenever possible, Smart Data fairly determines that there has been or is likely to be a security violation with respect to a User ID.
  • The customer agrees that Smart Data may regularly change User ID's to prevent unauthorized access to the Smart Data Portal and the customer appoints an employee to whom Smart Data must report any such amended IDs.

8. GENERAL OBLIGATIONS OF EACH PARTY

  • In addition to its duties as set out in the other Terms and Conditions, Smart Data undertakes to:
    • adhere to the Applicable Law;
    • exercise the reasonable skill and care of a competent provider of the Services;
    • uphold and abide by the respective codes of conduct (as amended from time to time) of ISPA and WASPA, available at http://ispa.org.za/code-of-conduct/ and http://waspa.org.za/coc/14- 3/; and
    • abide by and uphold its Code of Conduct, available at https://www.SmartData.co.za
  • In addition to the obligations specified by the Customer as set out in the remaining Terms and Conditions, the Customer undertakes that he or she will, or where relevant, its employees:
    • adhere to the Applicable Law;
    • deal with Smart Data employees and designated contractors in a courteous, respectful and professional manner and not in any manner act in an abusive way;
    • raise any issues that it is experiencing through a trouble ticket using the relevant telephonic, email or online facilities and provide Smart Data with any pertinent information that it may require resolving the trouble ticket; and
    • abide by the Smart Data acceptable use policy, available at https://www.SmartData.co.za

 

9. CHARGES AND PAYMENT

  • The Customer decides and undertakes to pay the fees for Smart Data in exchange for the availability and access to the Services.
  • Any invoice will, where applicable, detail the following types of Charges:
    • installation charge: the installation charge and any other charges levied as a once-off initial charge in respect of the connection of the Services;
    • reconnection charge: levied, where the Customer’s right to use the Services is suspended due to non-payment, and which fee is in respect of any restoration of the Service, is payable in advance, together with any outstanding amounts which are due to Smart Data;
    • ad-hoc / time and material charges: levied on each occasion for the provision of miscellaneous services requested by the Customer;
    • Recurring / rental fees: charged periodically, usually monthly–but in any event as specified in the Subscriber Agreement –for the use and availability of the Services. Recurring charges are payable in advance on the first day of the month and any corresponding rental period, with effect from the Activation Date;
    • cancellation fee: A fee levied by Smart Data to put it in the position the Customer would have fulfilled
    • call/usage charges: Use of the Service levied where such use is measured. Call fees and use fees shall be paid to the Customer at the end of each billing period
    • anticipatory costs: levied to recover the charges that Smart Data would have billed for the duration of the Fixed Term Agreement if the Contract had run its full
    • interest on overdue amounts: Any amount owed to Smart Data by the Customer not paid on or before the owed date specified on the invoice shall bear interest from the date on which the invoice was due.
9.3.Billing
  • Smart Data shall periodically provide a statement and an invoice for the amounts payable by the Customer to the Customer, usually monthly. The invoice will be e-mailed to the Client.
  • Where there is an occurrence that prevents an accurate calculation of the number of units for which the call or usage fees are calculated for a billing period, the call or usage fees for the period in question shall be set as the average call or usage fees for the 6 ( six) previous billing periods (or lesser billing periods if the Service is given for a shorter time).
  • The invoice sent to the Customer by Smart Data is on the face of it and evidence of the amount owed to Smart Data by the Customer before the contrary is proven. Nevertheless, the Customer is entitled to question or challenge any aspect of the invoice according to the provisions laid down in clause 13. Nevertheless, all undisputed parts of the invoice must be charged by the Due date.
  • If Smart Data determines that the amount disputed is in error, then Smart Data will credit the amount wrongly debited. Should Smart Data assess and inform the Customer that any payment has been correctly billed for the challenged amount, together with interest at the interest rate shall be charged no later than the due date of the following invoice.

9.4. Payments

  • Unless Smart Data expressly agrees in writing to the contrary, invoices are payable by way of a monthly debit order or using a credit card upon filing. The first invoice for a company shall be provided upon company activation and payable upon delivery.
  • Invoices and declarations can be downloaded from Smart Data Server. Consequently, non-receipt of an invoice by the Customer shall not be treated as a legitimate excuse for late payment or non-payment.
  • Until payment is received into Smart Data's bank account, the Customer shall be liable and responsible for payment.

The Customer shall be in violation of the Contract by canceling any debit order without Smart Data's prior written approval or if any debit order is returned unpaid or suspended or if any Customer's debit card or credit card account is declined. Under such a situation, Smart Data shall have the power to suspend the account of the Customer until certain sums of arrears have been obtained and paid under full along with interest thereon.

9.5. Changes to Charges

  • Smart Data that increase some of the amounts reflected in the Subscriber Agreement, which will increase relative to the Consumer Price Index. Increases associated with the Consumer Price Index usually occur between January and April, once a year.
  • If there is an increase in the price of components of the Services beyond the control of Smart Data ( e.g. foreign exchange fluctuations, higher prices on third-party products or services such as software license fees, surcharges, taxes, import duties, rates or levies, higher charges from other network operators or delays caused by Customer's instruction) Smart Data shall then be entitled to increase the rates for the service concerned in proportion to the cost increase.
  • Any increase as per clause 9.5.1 and 9.5.2 will be given to the Customer in
  • A Consumer shall have the right to terminate the Contract without penalty or charge if any such increases make the Service unaffordable to the Consumer, provided that it gives notice to Smart Data 20 (twenty) business days of its choice to cancel the Contract. If a consumer terminates the contract pursuant to this clause 9.5.4, such termination shall be without penalty, except where the Consumer has been or has purchased Subscriber Equipment but has not yet been paid. In such a scenario, the Customer will have a legal responsibility and Smart Data will have the legal right to claim full payment of the Subscriber Equipment from the User, excluding any sums already paid to Smart Data before such termination.

9.6. Unpaid accounts – Suspension of Services

  • Where any amounts due by the Customer to Smart Data are not paid on Due Date, Smart Data shall notify the Customer 7 (seven) days in advance of payment of all arrears / outstanding amounts and commence charging interest at Interest Rate.
  • If the account of the Customer remains unpaid or there is no formal agreement to resolve the arrears, Smart Data shall suspend the services of the Customer and the suspension shall remain in effect until all arrears, interest and any relevant reconnection charges have been paid by the Customer or Smart Data has been terminated.
  • When the account of the Customer is in arrears, Smart Data shall be entitled to suspend all Services linked to the account of the Customer, irrespective of whether or not the suspended Services are offered under multiple Subscriber Agreements.

9.7. Credit Limit and payment terms

  • Smart Data reserves the right to place a monetary cap on the overall value of charges incurred by the Customer for each billing cycle and Smart Data shall be allowed to terminate the Services if the Customer reaches the maximum amount after giving the Customer 20 (twenty) days’ notice of any unreasonable expenditure to which the Customer has not replied.
  • If Smart Data and Customer agree to payment terms other than those laid down in clause 9.4 and Smart Data will inform Customer twice in every rolling 12 calendar month cycle under clause 9.6.1, then Smart Data shall be entitled to revert to the default payment terms set out in clause 9.1.

 

10. SUSPENSION, WITHDRAWAL OR TERMINATION OF THE SMART DATA SERVICE

  • Smart Data can suspend the Smart Data Service and, where applicable, the right to use the Managed Service Equipment from time to time or, at its discretion, disconnect the Managed Service Equipment from the Smart Data Network in any of the following circumstances:
    • for routine maintenance, modifications to, or unplanned maintenance of the Smart Data Network and/or any other systems involved in the delivery of the Services;
    • to mitigate against fraudulent or suspected fraudulent use of the Customer’s Service;
    • per clause 9.6 or 9.7.1 above;
    • because of problems on third parties’ infrastructure which has affected or disrupted the Smart Data Service;
    • where certain Services are being abused by the Customer; and/or
    • where the Smart Data Service or Managed Service Equipment is found to contain a security risk or shortcoming which enables the Customer to exploit the Smart Data Service to the detriment of Smart Data;
    • where the Customer uses Subscriber Equipment that is not approved by ICASA for such use;
    • Where the Service is removed because of a take-down notice that Smart Data is obliged to act
  • The Customer agrees that the right to suspend the Services is necessary in order to maintain the quality of the Services, the integrity of the Smart Data Network and to protect the interests of both the Customer and Smart Data and to remain liable for all charges that may be charged by Smart Data during the suspension period.
  • Smart Data may, from time to time, discontinue and/or terminate any part of the Contract and, at its discretion, disconnect Managed Service Equipment from the Smart Data Network under any of the following situations, without prejudice to any other claims or remedies which Smart Data may have in this respect or in law:
    • where the Smart Data Service or Managed Service Equipment has reached the end of its lifespan and is uneconomical to maintain or continue;
    • where there has been an insignificant interest in the use of a Service;
    • in response to an instruction from ICASA or in terms of the ECA or some other law or any authority competent to issue such instruction;
    • if the Customer has received the Service because of fraud or misrepresentation;
    • if the Customer makes or offers to make any arrangement or composition with its creditors or commits any act of insolvency in terms of the Insolvency Act or any other applicable legislation;
    • if the Customer is using or permitting the use of the Service or any element thereof for any illegal purpose or in contravention of Applicable Law;
    • for any other reason incidental to 10.3.1 - 10.3.6

11. BREACH AND TERMINATION

  • Should the Customer breach:
    • its payment obligations and have been suspended for non-payment for a period longer than 7 (seven) days; or
    • any other term of this Contract and fails to rectify the breach within the notice period provided by Smart Data (which shall be a reasonable period given the circumstances of the breach);

Smart Data shall then be entitled to either suspend or cancel the Contract(s) without prejudice to any anticipatory costs or early termination penalties.

  • Should Smart Data infringe any material term of this Agreement, the Customer shall have the right to provide Smart Data with a letter requiring Smart Data to rectify the infringement within 20 (twenty) business days. If Smart Data neglects or fails to remedy such breach within the notice period of 20 (twenty) business days, the Customer may terminate the Contract without penalty.
  • The Customer shall be liable for all costs, including legal costs on an attorney's and client 's scale, tracking costs and collection commission incurred by Smart Data for the fulfillment of any Customer's obligations under this Agreement
  • Without diminishing any other claims or remedies that Smart Data may have against the Customer under this Agreement or law, Smart Data may terminate the Agreement if the Customer has delayed the installation of the Service for more than 3 ( three) months and holds the Customer liable in this regard for the anticipatory costs incurred by Smart Data.

 

12. SUPERVENING IMPOSSIBILITY

Except as expressly provided in the Agreement, Smart Data shall not be liable to the Customer for failure to meet any duty on account of any act of God, government regulations or prohibitions or any other act or omission of the Government, any act or default of any manufacturer, labor disputes, strikes, lockouts or work stoppages of any kind or of any other similar or dissimilar cause; To the degree that these were not expected and beyond the fair control of Smart Data. When any incident specified in this clause prohibits the delivery of uninterrupted service over a duration of more than four weeks, the Customer shall be entitled to terminate the Service concerned without penalty.

 

13. CUSTOMER ASSISTANCE, DISPUTES OR COMPLAINTS

13.1. Technical Complaints and Billing Queries

  • Smart Data can be contacted for technical support and account queries at the details provided at https://www.Smart Data.co.za/support/.
  • If the Customer encounters any issues with any of the Facilities or the Charges, the issue must be brought to the attention of Smart Data by creating a trouble ticket with Smart Data by mobile, email or via the Smart Data Portal. The problem will then be logged and documented, and a reference number will be given to the Customer.
  • Smart Data will use its best efforts to deal with trouble tickets as soon as possible, depending on the complexity and nature of the issue as well as the availability of resources.
  • Where Customer has exhausted all levels of escalation and remains of the view that the matter has not been resolved to the satisfaction of the Customer, the Customer will have the right to refer the matter to ISPA, which can be done via the complaints form at http://ispa.org.za/code-of-conduct/complaints-form/.
  • Complaints: When the Customer has a complaint that is not relevant to the Service 's results or to a billing application, the Customer must follow the Smart Data complaints procedure as updated from time to time and made available on the Smart Data website.
  • Single Forum Resolution: The foregoing rights shall be without prejudice to the respective rights of both Parties to seek a complaint or action in any other court with jurisdiction over the matter, including the right to refer the complaint to ICASA, provided that the same complaint is not lodged in more than one venue.

 

14. CONSEQUENCES OF TERMINATION

After termination of the Contract for whatever reason:

  • On fair notice and in the presence of the Customer, Smart Data the enter the premises of the Customer to remove the Smart Data-owned Managed Service Equipment
  • Customer shall remain liable for all charges and/or costs that are outstanding at the time of termination or accrued thereafter due to termination and shall pay on demand.

 

15. LIMITED LIABILITY AND INDEMNITY

  • As regards internet-based infrastructure, Smart Technology only offers Internet access. Smart Data does not operate or control Internet information, services, opinions or any other content. Smart Data reserves the right to take whenever appropriate, at the sole discretion of Smart Data, steps to ensure the protection and continuity of service on the Smart Data Network, including, but not limited to, the detection and blocking or filtering of Internet traffic sources that Smart Data considers to pose a protection or operational risk or a breach of its AUP. Therefore, the Customer agrees that Smart Data does not own or regulate any third-party networks outside the Smart Data Network and that Smart Data is not liable or accountable for filtering or access limitations imposed by such networks or for the output (or non-performance) of such networks or interconnection points between Smart Data Network and other third-party networks
  • It is the duty of the Customer to protect the protection of his internal network from unauthorized Internet access. Smart Data is not responsible for unauthorized access to the network of the Customer or any infringements of network security of the Customer. Up to 30 minutes after Customer has registered an official support ticket with Smart Data requesting suspension of the Services affected by unauthorized access to the Services, the Customer shall remain entirely liable to Smart Data for any usage billing charged to the Customer's account.
  • Smart Data assumes no responsibility for the integrity, correctness, retention or content of electronic data transported via the Smart Data Network.
  • Subject to the provisions of clause 15.6 below, Smart Data shall not be liable to the customer or any third party for claims arising or arising out of the use of the services by the customer, whether direct or indirect, consequential or contingent, such claim, action or damage. Smart Data shall not be responsible for any loss of life; injury; medical expenses; support; financial impairment or financial support; loss of earnings; loss of benefit and/or income; loss of income; loss of company or goodwill; any other specific damages; or any general damages, regardless of whether the use of the Services was foreseeable or flowing naturally.
  • The Customer shall indemnify Smart Data from any allegation or action which may result from the use of the Products by the Customer or from the use of the Customer Services by any third party.
  • If a Customer causes some injury or harm as a result of using the Smart Data Service, in this case the Customer would be entitled to take advantage of the provisions found in section 61 of the CPA, but always subject to the protections and exceptions entitled and applicable to Smart Data and its service providers under section 61 of the CPA.
  • Besides any restriction of liability laid down elsewhere under the Contract, the limitation of liability set out above is.

 

16. PROCESSING OF PERSONAL INFORMATION, RIGHTS TO PRIVACY AND RICA

  • Smart Data reserves the right to make general credit reference enquiries about the Customer and to test the quality of the given information. Smart Data shall also be required to submit to any licensed credit bureau any information relating to the account of the Customer and to comply with these conditions.
  • The Customer warrants and represents that all information supplied by it is accurate, correct and
  • Smart Data can use the Customer's Personal Data strictly in compliance with the Regulations implemented under Section 69 of the ECA or the Personal Information Security Act, whichever applies.
  • Customer will provide all required Personal Data and other details that Smart Data is required to obtain from the Customer in accordance with RICA section 39 or 40.
  • The Consumer shall not pass the Service to another person other than a member of the family or dependent.
  • The Customer agrees and recognizes that if the Customer refuses to comply with these conditions, this will amount to a substantive violation of the Contract by the Customer.

 

17. GENERAL

  • Cession, delegation, assignment: None of the Parties can cede, delegate, appoint, fee, pass or otherwise dispose of this Agreement or any rights or responsibilities therein in whole or in part, without the other Party's written consent. Such permission shall not be withheld unreasonably or delayed indebly. Notwithstanding the foregoing, Smart Data may assign any and all of its rights and obligations under: I to any Smart Data affiliate (as specified in the Companies Act, 71 of 2008; (ii) to a third party by virtue of any sale or transfer of substantially all of Smart Data's properties or businesses or affiliates; (iii) to a third party under any financing, merger or reorganization of Smart Data or an affiliate of Smart Data;
  • Applicable laws and Jurisdiction: This Contract will be interpreted and governed by the laws of South
  • Variation and Amendment: If the other party agrees to such variation and the variation is limited to writing and signed by both parties, none of the parties can change the terms of the Contract and except where the right to amend the Contract has been expressly stated under the Contract.
  • Consumer status: A Customer who is a Distributor was given those rights. Smart Data retains the right to deny any of these rights and/or the resulting benefits until the Customer can prove to Smart Data, whatever evidence may be that it is a Client in the form of a series of financial statements or an identity document (and in the case of a right which it wants to exercise under section 14 of the CPA, that it is an Individual Consumer). Where the Customer is unable to demonstrate that he is a Consumer or an Individual Consumer, Smart Data reserves the right to reverse or call for reimbursement of any rights or benefits permitted under the CPA and unlawfully exploited by the Customer.
  • Customer details and changes thereto: The Customer agrees to provide Smart Data with such details, documents and signatures as may reasonably be needed by Smart Data at the time the Contract is concluded to give effect to the Contract payment arrangements. Any subsequent changes affecting the information given to Smart Data, such as bank account or legal service address, must be brought to Smart Data 's immediate, written attention.
  • Whole Contract: The Contract contains the Parties' sole and entire record of the agreement. No Party shall be bound by any term, representation, warranty, promise or the like expressly or implied, not recorded in writing and signed by either Party or otherwise created by law. For the sake of clarity, where it appears from the context of multiple Subscriber Agreements concluded between the Parties that they are intended to be read as one Contract, then the Subscriber Agreements shall not be deemed to constitute separate and divisible Contracts, and in such a case conflicting General Terms provisions shall be settled with the ordinary rules of interpretation.
  • Indulgences: No indulgence, leniency or extension of time given or displayed by either Party ("the grantor") shall in any way impair the grantor or preclude the grantor from exercising any of its rights in the future. Any indulgence or relaxation by the grantor of the terms of the Agreement shall not impair the grantor's right to demand that the defaulting Party complies exclusively with its undertakings and obligations under the Agreement.
  • Severability: In the event that any of these terms and conditions are unenforceable, the offending clauses will be severed from the remainder of the Contract, which will still remain binding and enforceable.

 

18. LEGAL ADDRESS FOR SERVICE

  • The Parties choose the addresses set out below as their chosen place to receive legal notices:
    • Smart Data 11 Lechwe Road, Corporate park south, Midrand, Johannesburg. Notices must also be emailed to khan@smartdata.co.za ; and
    • The Customer shall be at the physical or residential address specified in the Subscriber Agreement. Where Customer has entered into multiple Subscriber Contracts, then the most recently signed physical address specified in the Subscriber Contract by the Customer or his authorized representative.
  • All notifications issued under this Contract shall be in writing. General notices not initiating legal proceedings shall be provided by sufficient mail to either Party or, where applicable, by any other electronic messaging service.

 

19. CANCELLATION PROCESS

  • Unless Smart Data expressly decides in writing to the contrary, Customer must cancel services at least 90 days in advance to be effective at the end of the Initial Term or Extension Term, unless Smart Data charges a cancelation fee to the Customer.
  • Cancellations must be processed through the cancellation request form in the Smart Data Portal, or Customer must send a cancellation request to support@smartdata.co.za and or Yasmin.khan@smartdata.co.za. The online cancellation request form will reflect the duration that is left for each Service as well as the cancellation fee (if any) of each Cancellations received by email will be followed up with a quote setting out the cancellation fee (if any) of each Service.
  • Email cancellations must contain at least the following information:
    • The Customer’s account number; and
    • The description of the Service/s to be cancelled as is described on the Customer’s
  • Smart Data will not be deemed to have received a cancellation notice unless it has issued Customer with written confirmation of receipt and a unique reference number. If Customer is not furnished with a unique reference number within 48 hours of transmitting its cancellation notice, Customer must escalate to support@smartdata.co.za and or Yasmin.khan@smartdata.co.za
  • The processing of a request for cancelation by Smart Data shall be without prejudice to its right to any argument it may have in respect of this Contract. Customer recognizes that the cancelation of Services in certain cases is not reversible or can incur financial penalties, Smart Data may therefore postpone the actual termination of the Services upon acceptance of receipt of a notice of cancellation in order to clarify the implications of termination to the Customer and to allow the Customer to withdraw a notice of cancellation.
  • Once the Customer has submitted Smart Data a notice of cancelation which is not handled in the manner set out herein, the Customer shall remain liable for any charges imposed by Smart Data against the Customer's account.

Smart Data 5 GB Deal Promotion

  • Promotion will run for 2 weeks from launch date
  • The first 250 people to buy a 5 GB sim card will get it at R100
  • The data will last for 14 days