Terms And Conditions

Definitions

For purposes of these Conditions, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:

All monetary amount in these Conditions are exclusive of VAT, unless otherwise stated.

In circumstances of the CPA being applicable to these Conditions, the provisions of the CPA will prevail in the event of a conflict between any provision of the Conditions and the provisions of the CPA.

Introduction

2.1          These Conditions set out the terms and conditions in terms of which 316 Solutions will provide the Services to the Customer and constitutes a binding agreement between 316 Solutions and the Customer as set out in clause 3 below.

2.2          316 Solutions is entitled to amend these Conditions from time to time and will place the amended Conditions on the 316 Solutions website (www.316solutions.co.za) which amendment will bind the Customer from the date that the amendment has been published on the 316 Solutions website.

Duration

3.1          The Customer accepts and agrees that these Conditions will become binding on it once 316 Solutions has processed the Application Form and agreed to provide the Customer with the Services.

3.2          These Conditions will continue to be binding on the Customer in respect of:

3.2.1      Residential Fibre Internet Services, on a month to month basis with a calendars month notice not later than the 10th of the month to end the service on the last day of that particular month if notice is given after the 10th of the month the cancelation of the service will only end at the end of the following month or

3.2.2      Business Fibre Internet Services, on a contractual basis or all other services, on a month to month basis; or until such time as the Services are cancelled in accordance with clause 12

Payment

General

4.1.1      316 Soulutions will provide the Customer with a monthly Invoice on the Invoice Date.

4.1.2      Unless the Customer notifies One Mile Telecoms in writing at (accounts@316solutions.co.za) within 3 days of receipt of an Invoice to the contrary, the contents of such Invoice will be deemed to be correct and will not be disputable.

4.1.3      The fees must be paid by the Customer in full, without deduction or set off and free of bank charges on the Invoice Date, unless agreed otherwise by 316 Solutions in writing or unless the Invoice has been submitted as a dispute in terms of clause 1 (subject to clause 13)

4.1.4      Fees are payable monthly in advance.

Unpaid Fees and Credit Limits

4.2.1      Should the Customer fail to make payment of the Fees in terms of clause 4.1 on the due date and fail to remedy its breach within 5 (five) calendar days notice to remedy its breach, then the Customers actions will constitute a material breach and 316 Solutions will be entitled but not limited to:

4.2.1.1   cease supplying current Services to the Customer and/or refuse the supply of new services to the Customer until such time as it receives payment in full of the outstanding amounts (including any interest accrued thereon);

4.2.1.2   institute legal action for any amounts due and payable and the Customer will be liable for costs on a scale of Attorney and own client together with collection commission at a rate of 10%.

4.2.1.3   charge interest on any unpaid and outstanding amounts, which amount  will accrue on a monthly basis at a rate of 2% above Prime overdraft rate of Nedbank Ltd. Calculated daily and compounded monthly until the amount due are paid in full;

4.2.1.4   list the Customer as a default payer in terms of regulation 19(4) of the National Credit Act 34 of 2005

4.2.2      In respect of a customer making use of the 316 Solutions VOIP services, residential and business VOIP customers will have a R200 and R1000 default credit limit per month respectively, to avoid unauthorized usage and charges on the account.

4.2.3      In order to increase or decrease the default credit limit, the Customer must submit a written request to that effect to sales@316solutions.co.za.

4.2.4      If your line has been suspended due to non-payment you are still liable for the line fee for the month the line is suspended. Should you wish to cancel the billing you will need to send a cancellation request to our accounts department accounts@316solutions.co.za . Should you wish to reconnect the cancelled services you will be charged a re-connection fee depending on the Fibre network you are connecting to. The reconnect fee will need to be paid before we can reconnect your services.

Methods of Payment

4.3.1      The Customer may only pay the Fees by means of a debit order, or by using a credit card through your customer portal, Instant EFT by using your unique customer code / invoice number as reference. Payments made via EFT are automatically allocated to the oldest invoice on your account. The bank details will not change without an official message on our website. Do not pay into any other account than the details found on your invoice.

4.3.2      A processing fee of R69.00 (including VAT) will be charged on all returned debit orders.

4.3.3      If the preferred method of payment by the Customer is EFT, it is the sole responsibility of the Customer to ensure that all payments are made using the correct beneficiary reference as indicated on the Invoice. Failure to comply may result in an incorrect allocation of the payment which may cause service disruption because of the account being suspended due to non-payment.

Fee Increases

The Customer acknowledges and agrees that 316 Solutions will be entitled, on 30 days’ written notice to the Customer, to increase the Fees payable by the customer in circumstances of the direct costs to 316 Solutions in providing the Services (including, without limitation, the charges charged by the network provider(s) in respect of such services) being increased. The increases to the Fees shall be commensurate with the increased costs of providing the Services.

Refunds

316 Solutions will not credit any customer because of Fibre downtime caused by maintenance on a fibre line, break in connection, power failures, slow speeds caused by FNO’s network, load shedding or any reason caused by third parties.

Service & Equipment

General

5.1.1      316 Solutions provides the Services to the Customer in terms of the Conditions.

5.1.2      Your access to the Internet is provided at the speeds set out in your service order. The speeds are indicated at maximum theoretical speeds, and are not guaranteed and will fluctuate from time to time.

Due to the nature of the Internet we cannot guarantee the speed at which devices connected to the Internet will communicate with you. What this means is that speeds below your contracted rates is not a breach of contract on our part. You should only log faults for poor internet speeds if the speed is consistently well below the contracted speed for a sustained period.

All Fibre to the Home or Business services are billed one month in advance. If you subscribe during the middle of a month you will be billed a Pro-rate amount for the rest of the month.

Web-based speed-tests are not reliable and will not be accepted by us as conclusive proof of poor performance. If a support call is logged with us, we will use industry accepted tests in a controlled test environment to verify the performance of your service.

Whilst 316 Solutions operates the 316 Solutions Infrastructure, 316 Solutions hereby advises the Customer that 316 Solutions does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by several third parties who provide separate but interrelated and connected services which as a whole, allows the 316 Solutions Infrastructure to function. These third parties operate as independent service providers who are not necessarily contracted by 316 Solutions and the Customer accepts and acknowledges this fact.

Whilst 316 Solutions will use its best endeavors to ensure that the Services are operational at all times, 316 Solutions does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on the actions and/or input of a number of independent third parties whom 316 Solutions has no direct control over. Accordingly, 316 Solutions will not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether 316 Solutions has entered into a service level agreement with such third party).

Equipment

5.2.1      If any supplied equipment needs to be returned to 316 Solutions, the cost thereof will be for the client.

5.2.2      Without limiting the generality of clause 5.2.1, it is noted that the Customer will be supplied with a complimentary Gigabit router if the Services include a 100/100Mbps Uncapped Fibre package. Upon cancellation or downgrade of such a 100/100Mbps Fibre package to a lower speed, 316 Solutions will arrange collection of the Gigabit router from the Customer and supply the Customer with an entry level Dual Band router as an alternative.

5.2.3      316 Solutions will maintain the Equipment (excluding Equipment in terms of clauses 2.1.1 and 5.2.1.2) at its own cost, provided that the Customer will be liable to 316 Solutions for any damage, destruction or theft of the Equipment which damage, destruction or theft is attributable to the Customer’s acts or omissions.

5.2.4      316 Solutions has the right to inspect the Equipment at all reasonable times during the currency of the Conditions and to remove the Equipment on termination of these Conditions for any reason.

5.2.5      Other than the Equipment, 316 Solutions will not be liable for the maintenance of any equipment provided by or on behalf of the Customer and/or whether utilized in conjunction with the Services.

5.2.6      The client should not remove any equipment installed by the FNO (Fibre Network Operator) for example ONT or CPE, if any of these units are removed by the client, the client will be liable for any costs occurred by 316 Solutions from such Fibre Network Operator. Ownership of all the equipment that we supply vests in us, including routers, firewalls, switches and access points.

5.2.7        For routers and fibre converters supplied by us, you must either:

5.2.7.1 Leave all equipment including power supply in the unit when moving out or

5.2.7.2 Return the router, power supply and all cabling in good working condition, supplied equipment needs to be returned to 316 Solutions, the cost thereof will be for the client; or

5.2.7.3 Pay us the full retail price of the fibre converter and router (or if the particular model is not sold anymore, the closest replacement models price).

5.2.7.4 You accept liability for any costs incurred by us as a result of repair or replacement of equipment where the equipment failure was caused by your use, misuse or changes to the equipment, other than as agreed to in writing by us.

Support Services

5.3.1 For any support assistance, the customer needs to call 316 Solutions call center or open a ticket via support@316solutions.co.za.

5.3.2 We work with a number of FNO’s. If there is an issue on your fibre circuit, we will log a fault with the relevant FNO. The turnaround time to resolve the issue is beyond our control, therefore we cannot be held liable for any delays in resolving downtime or degraded services. However, we will communicate turnaround times with you as soon as we know them. We will do our best to make sure the issue is resolved as soon as possible. Each FNO has different terms of use relating to end user damage and costs to repair. The terms are available on each of our FNO’s websites. By ordering our services you accept and agree to be bound by their terms. You will be informed of which FNO is providing your circuitry when you order from us.

Passwords, IP Addresses and account holder details

6.1          The Customer is responsible for maintaining the confidentiality of its password and other related sensitive information for its user account. In the event of a breach of security through the Customer’s account, the Customer will be liable for any unauthorized use of 316 Solutions Infrastructure and Services, including any damages resulting there from, until the Customer notifies 316 Solutions customer service of such a breach and 316 Solutions has been able to rectify the breach.

6.2          The Customer will be liable for any additional costs incurred by 316 Solutions due to poor passwords or other credentials of the Customer in relation to the Customer’s user account (for example: blank passwords or “test” accounts).

6.3          If 316 Solutions assigns the Customer an Internet Protocol address in connection with its use of the 316 Solutions Infrastructure and/or Services, the ownership of and right to use that Internet Protocol address will remain with and belong only to 316 Solutions, and the Customer will have no right to use that Internet Protocol address except as allowed by 316 Solutions in its sole and absolute discretion

Limitation and variation of services

7.1 Reliance on Third Parties

7.1.1      Whilst 316 Solutions operates the 316 Solutions Infrastructure, 316 Solutions hereby advises the Customer that 316 Solutions does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide separate but interrelated and connected services which as a whole, allows the 316 Solutions Infrastructure to function. These third parties operate as independent service providers who are not necessarily contracted by 316 Solutions and the Customer accepts and acknowledges this fact.

7.1.2      Whilst 316 Solutions will use its best endeavors to ensure that the Services are operational at all times, 316 Solutions does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on the actions and/or input of a number of independent third parties whom 316 Solutions has no direct control over. Accordingly, 316 Solutions will not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether 316 Solutions has entered into a service level agreement with such third party).

7.1.3      Notwithstanding the provisions of this clause 2, 316 Solutions will use its best endeavors to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where 316 Solutions is in a position to do so.

Upgrades and Downgrades

8.1          A downgrade occurs when the Customer changes its current package to a package with a lower cost, for example: changing from a Home Uncapped 20/20Mbps account to a Home Uncapped 10/10Mbps account would be considered a downgrade. An upgrade would be the opposite of a downgrade.

8.2          Upgrades or downgrades must be done using the Customer Zone or an email needs to be sent to sales@316solutions.co.za. The Customer must contact 316 Solutions to establish the lead time for such an upgrade or downgrade via sales@316solutions.co.za.

8.3          The Customer must notify 316 Solutions of downgrades or upgrades on or before the 20th of each month, in order for the downgrade or upgrade to take effect from the first day of the next month. Until such time as the downgrade or upgrade is effected by 316 Solutions, the Customer will continue to be charged for the rate of the existing package.

8.4          If a service is downgraded during the month, there will be no refund/pro-rata for the money paid already for that service

Indemnity and Limitation of Liability

9.1          The Customer agrees to indemnify 316 Solutions (and its Affiliates) and at all times keep it indemnified against all losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgments whatsoever in relation to or arising directly or indirectly out of the provision by 316 Solutions of the Services, and the Customer will reimburse 316 Solutions from time to time for all costs and expenses (including legal and other professional fees) that 316 Solutions may reasonably incur in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration in which 316 Solutions is a party and whether or not resulting in any liability on its part, except to the extent that such action or claim is found in final judgement to be the direct result of 316 Solutions’ fraud, gross negligence or breach of these Conditions.

9.2          Subject to the provisions of the CPA to the extent that the CPA is applicable to these Conditions and to the Customer, 316 Solutions will not be liable to the Customer, or any third party claiming through or on behalf of the Customer, in respect of any claim whatsoever, whether in contract, derelict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by 316 Solutions of the Services, except to the extent that such losses, damages, costs or expenses incurred by the Customer are found in final judgement to be the direct result of fraud, gross negligence or breach of these Conditions by 316 Solutions. In these or any other circumstances, the maximum amount of the liability of 316 Solutions in respect of such losses, damages, costs or expenses will be limited to the amount of Fees that have been paid to 316 Solutions by or on behalf of the Customer in connection with the Services.

9.3          Without limiting the generality of clause 9.2, 316 Solutions will not (other than in circumstances of the gross negligence or fraudulent intent of 316 Solutions) be liable for any damage or loss suffered by the Customer caused by and/or attributable to:

9.3.1      the Services being interrupted, suspended or terminated, for whatsoever reason; and/or

9.3.2      communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever; and/or

9.3.3      circumstances that constitute a force majeure event (as contemplated in clause 11); and/or

9.3.4      the Customer’s failure to perform its obligations under these Conditions; and/or

9.3.5      changes made to the Customer’s operating environment which were not communicated to 316 Solutions; and/or

9.3.6      a power failure or power interruptions at any site from where the Services or any component of the Services are rendered; and/or

9.3.7      any failure or delay by the Customer to report problems or queries to 316 Solutions’ call center and/or

9.3.8      the server and/or equipment of any recipient party being non-functioning for any reason whatsoever; and/or

9.3.9      the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the supplier and/or the customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the services;

9.3.10    the unavailability of 316 Solutions website for any reason whatever; and/or

9.3.11    the Customer using the Service for any unlawful, improper or immoral purpose; and/or

9.3.12    the unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, PBX or other telecommunication equipment.

Warranties

Subject to any warranties that may be implied by the CPA to the extent that the CPA is applicable to these Conditions and the Customer, 316 Solutions does not, make any representations nor, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services or the Equipment including but not limited to implied warranties of merchant ability and fitness or suitability for any intended purpose, nor that the Services will be error-free, secure or uninterrupted.

Force Majeure

11.1        316 Solutions will not be liable for any delay in performing or any failure to perform any of its obligations in terms of the Conditions due to any cause beyond its reasonable control.

11.2        Upon the occurrence of any delay or failure referred to in this clause 11, the provisions of the Conditions which are affected shall be suspended for as long as the cause in question continues to operate, provided that if the delay or failure referred to in this clause 11, has not ceased to operate within a period of 3 months from the date upon which it arose, the Services may by way of notice in writing be cancelled by either Party.

Cancellation

12.1        Should 316 Solutions commit a breach of any of the provisions of these Conditions and fail to remedy that breach within 7 business days after receipt from the Customer of written notice calling upon it so to do, then the Customer will be entitled to either:

12.1.1    enforce specific performance of the terms hereof; or

12.1.2    cancel the Services with effect from the beginning of the following calendar month

12.2        The Customer will be liable for the full cost of any Fibre line ordered by completing the Application Form and then cancelling such Application Form. This could include activation and connection fees that 316 Solutions have incurred.

12.3        Customers must notify the accounts department of a cancellation request in writing by emailing accounts@316solutions.co.za.

12.4        In addition to any other cancellation rights which 316 Solutions may have in these Conditions, if the Customer breaches any term of these Conditions including any failure to pay 316 Solutions any monies on due date, and fail to remedy that breach within 7 business days after receipt from 316 Solutions of written notice calling upon it so to do, then 316 Solutions will be entitled without prejudice to any right it may have as a result of that breach, cancel these Conditions and cease providing the Services to the Customer – this remedy will not be exhaustive and will be in addition and without prejudice to any others 316 Solutions may have under or in consequence of these Conditions.

12.5        If an application for business rescue proceedings or liquidation is filed by or against the Customer, or if the customer is sequestrated, liquidated, goes out of business or announces intention to do so, 316 Solutions will be entitled to immediately cancel these Conditions and terminate current Services to the Customer, upon notice to the Customer.

12.6        If the supply of the Services is terminated in accordance with this clause 12, the full outstanding balance of the Customer becomes due and payable immediately.

12.7        If your line has been suspended due to non-payment you are still liable for the full monthly package fee for the months the line is suspended. Should you wish to cancel the billing you will need to send a cancellation request to our accounts department accounts@316solutions.co.za. Should you wish to reconnect the cancelled services you will be charged a re-connection fee depending on the Fibre network you are connecting to. The reconnect fee will need to be paid before we can reconnect your services.

12.8        Please note that by default we require one full calendar month’s notification of non-renewal. If you do not provide this notice, you will be charged the rate stipulated on the relevant product page for the next renewal term. To illustrate, for non-renewal to be affected at the end of November, notice of non-renewal must be received on or before the last day of October. If a client cancels within the first 30 Days, the client will be liable to pay any activation fees that 316 Solutions incurred on behalf of the client.

12.9        If the client re-connects a service at a previously cancelled address, the customer will be liable to pay for the re-connection fee.

12.10     316 Solutions will be entitled to cancel these Conditions and terminate current Services to the Customer for any reason whatsoever, upon 30 days’ notice to the Customer.

Dispute Resolution

13.1        Any dispute between the Parties in regard to any matter arising out of any Invoice and/or these Conditions or their interpretation or their respective rights and obligations arising thereunder or their cancellation or any matter arising out of their cancellation, must first be (attempted to be) resolved by the Customer and a manager of 316 Solutions in accordance with the following procedure:

13.1.1    the Customer must submit to info@316solutions.co.za a written complaint / dispute setting out the Customer’s full particulars, contact details, customer reference number, relationship with 316 Solutions, statement of reasons for the complaint / dispute and any relevant evidence or supporting documentation;

13.1.2    316 Solutions must:

13.1.2.1  acknowledge receipt of the complaint / dispute within 3 business days of its submission by the Customer; and

13.1.2.2  determine the outcome of the complaint / dispute, and communicate this result to the Customer within 14 business days of the above acknowledgement.

13.2  316 Solutions will not entertain any dispute / complaint in respect of an Invoice or Fees based on unauthorised use of the Services, it being the Customer’s responsibility to safeguard access to the Services which it receives and to use the Services in the manner set out in these Conditions.

13.3        If the Customer is not satisfied with the outcome in clause 13.1, then the complaint / dispute will be submitted to and determined by arbitration. Such arbitration will be held in Johannesburg unless otherwise agreed to between the Parties in writing and will be held in a summary manner with a view to the proceedings being completed as soon as possible.

13.3.1    There will be 1 arbitrator whose appointment will be agreed upon between the Parties, but failing agreement between them within a period of 10 Business Days after the arbitration has been demanded, either of the Parties will be entitled to request the chairperson for the time being of the Johannesburg Bar Council to make the appointment who, in making his appointment, will have regard to the nature of the dispute.

13.3.2    The decision of the arbitrator will be final and binding on the Parties, and may be made an order of any court of competent jurisdiction.

13.3.3    Each of the Parties hereby submits itself to the jurisdiction of the Gauteng Local Division of the High Court of South Africa, Johannesburg should the other Party wish to make the arbitrator’s decision an order of that Court.

Confidentiality

316 Solutions will keep all information supplied to or acquired by it in connection with any order in terms of these Conditions strictly confidential, shall not use such information or any part thereof for any purpose other than permitted under these Conditions.

Notices

Notices required by these Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery, fax or by email. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th business day after posting. Emails and faxes will be deemed to be received on the business day they are sent if sent before 16h00 on that day or on the next business day thereafter is sent after 16h00 on a business day or if sent on a non-business day.

Personal Information

16.1        By requesting and utilising the Services, the Customer consents to:

16.1.1    316 Solutions recording and storing, in a secure manner, the Customer’s personal details for record-keeping purposes and in order to comply with its obligation in terms of these Conditions;

16.1.2    316 Solutions providing the Customer’s personal details to any law enforcement agencies upon it being requested to do so;

16.1.3    316 Solutions using location based services for any lawful or third party service;

16.1.4    Cookies being stored to provide customized services (if any);

16.1.5    certificates being stored;

16.1.6    316 Solutions, third party vendors / partners redirecting the Customer to third party vendor payment processing partners; and

16.1.7    316 Solutions making the Customer’s personal information available to its Affiliates, provided that such personal information will not be provided to or sold to any third parties which are not Affiliates of 316 Solutions without the prior written consent of the Customer.

General

17.1        The Customer will not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of the Conditions and/or the Services, in whole or in part, to any other party or person without the prior written consent of 316 Solutions.

17.2        No Party will have any claim or right of action arising from any undertaking, representation or warranty not included in these Conditions.

17.3        No extension of time, relaxation or indulgence granted by 316 Solutions to the Customer will be deemed to be a waiver or tacit amendment of 316 Solutions’ or the Customer’s rights in terms hereof, nor will any such relaxation or indulgence be deemed to be an ovation or waiver of the terms and conditions of these Conditions.

17.4        Each of the provisions of these Conditions will be considered as separate terms and conditions and in the event that these Conditions are affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if the illegal, invalid, prohibited or unenforceable provision was not a part hereof.

17.5        All costs, charges and expenses of any nature whatever which may be incurred 316 Solutions in enforcing its rights in terms of these Conditions, including without limiting the generality of the a foregoing, legal costs on the scale of attorney and own Customer and collection commission, irrespective of whether any action has been instituted, will be recoverable on demand from the Customer against which such rights are successfully enforced and will be payable on demand.

17.6        The validity of these Conditions, their interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of these conditions or their performance will be determined in accordance with the laws of South Africa.

17.7        This Agreement supersedes and cancels any and all previous agreements between 316 Solutions and the Customer relating to the subject matter hereof.

Acceptable Use Policy

18.1        General and Acceptable Use

18.1.1    The provisions of the Acceptable Use Policy, form part of this conditions and is binding on the Customer and intended as guidelines and are not meant to be exhaustive.

18.1.2    Generally, conduct that violates any law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in the Acceptable Use Policy, is prohibited. 316 Solutions prohibits activities that may damage its commercial reputation and goodwill and reserves the right to take such steps as it may deem required in order to protect itself from such damage being caused by the Customer.

18.1.3    The Customer must:

18.1.3.1  use the Internet and 316 Solutions Infrastructure for his/her own personal use only and must do so with respect, courtesy, and responsibility, giving due regard to the rights of other Internet and/or 316 Solutions Infrastructure users;

18.1.3.2  have a basic knowledge of how the Internet functions, the types of uses which are generally acceptable, and the types of uses which are to be avoided.

18.1.4    The Customer acknowledges and agrees that 316 Solutions is unable to exercise control over the content of the information passing over the 316 Solutions Infrastructure and the Internet, including any websites, electronic mail transmissions, news groups or other material created or accessible over the 316 Solutions Infrastructure. Accordingly, 316 Solutions is not responsible for the content of any messages or other information transmitted over the infrastructure and/or Internet.

18.1.5    The Customer agrees to indemnify 316 Solutions and its Affiliates in full and on demand from and against any loss, damage, costs or expenses which they may suffer or incur directly or indirectly as a result of the Customer’s use of the 316 Solutions Infrastructure and/or Internet otherwise than in accordance with the Acceptable Use Policy, the Conditions and the Applicable Laws.

Prohibited, Unacceptable and Unlawful Use

18.1.6    The 316 Solutions Infrastructure may be used only for lawful purposes and Customers may not violate any Applicable Laws when using the 316 Solutions Infrastructure and/or the Internet.

18.1.7    Transmission, downloading, distribution or storage of any material on or through the 316 Solutions Infrastructure in violation of Applicable Laws by the Customer is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secrets or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, violates export control laws, constitutes child sexual abuse imagery, pirated software, illegal downloads, “Hackers programs or archives”, “Warez Sites”, “IRC Bots”, “Illegal MP3’s”, drug dealing or other illegal activities.

18.1.8    The Customer is prohibited from posting of defamatory, scandalous, violent or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.

Business Use

18.1.9    The Customer acknowledges that:

18.9.1    there is a distinction between residential/home internet services (fibre-to-the-home) and business services (fibre-to-the-business);

18.9.2    a high number of users (on average, more than 5 users) accessing the 316 Solutions Infrastructure and/or Internet through a single account, it would result in a higher cost incurred by 316 Solutions to service such an account based on the 316 Solutions uncapped, unlimited and unshaped model;

18.1.10  Accordingly, the Customer acknowledges and agrees that, unless it is a Business Customer, it may not allow more than 5 users to access the 316 Solutions Infrastructure through its account at any given time. Failure to adhere to this requirement may result in the Customer incurring additional charges and 316 Solutions may immediately suspend or terminate the Services of such a Customer without notice.

System and Network Security

18.1.11  All references to systems and networks under this section includes the Internet (and all those systems and/or networks to which the Customer is granted access through 316 Solutions) and includes but is not limited to the 316 Solutions Infrastructure itself.

18.1.12  The Customer may not circumvent user authentication or security of any host, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, customer, host, or network (referred to as “denial of service attacks”).

18.1.13  Violations of system or network security by the Customer are prohibited, and may result in civil or criminal liability. 316 Solutions will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected.

18.1.14  Examples of system or network security violations include, without limitation, the following:

18.1.14.1  unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of 316 Solutions;

18.1.14.2 unauthorised monitoring of data or traffic on the network or systems without express authorisation of 316 Solutions;

18.1.14.3  interference with service to any user, customer, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;

18.1.14.4  forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting; and

18.1.14.5  employing posts or programs which consume excessive CPU time or storage space, permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for their own account; or resale of access to CGI scripts installed on the 316 Solutions servers.

Email Use and Spamming

18.1.15  It is expressly prohibited to send unsolicited mail messages (“junk mail” or “spam”), including, without limitation, commercial advertising and informational announcements, and the Customer will refrain from doing so.

18.1.16  The Customer will not use another site’s mail server to relay mail without the express permission of the site (known as public relay) or distributing, advertising or promoting products or software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or spam.

18.1.17  316 Solutions may examine the Customer’s mail servers to confirm that no mails are being sent from the mail server through public relay and the results of such checks can be made available to the Customer. All relay checks will be done in strict accordance with 316 Solutions’ policy of preserving customer privacy.

18.1.18  The Customer may not use the 316 Solutions Infrastructure and/or servers to effect or participate in any of the following activities:

18.1.18.1  posting to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner- published FAQ or description of the group or list;

18.1.18.2  sending unsolicited mass e-mailings, if such unsolicited e-mailings provoke complaints from the recipients;

18.1.18.3   engaging in any of the foregoing activities using the service of another provider, but channeling such activities through the 316 Solutions Infrastructure (or a 316 Solutions provided server, or using a 316 Solutions provided server as a mail drop for responses);

18.1.18.4  falsifying user information provided to 316 Solutions or to other users of the service in connection with use of a 316 Solutions service.

Fair Access

18.1.19  To help ensure that all Customers have fair and equal use of the Services and to protect the integrity of the 316 Solutions Infrastructure, 316 Solutions reserves the right, and will take necessary steps, to prevent improper or excessive usage of the 316 Solutions Infrastructure. These steps include, but are not limited to:

18.1.19.1  limiting throughput;

18.1.19.2  preventing or limiting Service through specific ports or communication protocols; and/or

18.1.19.3    complete termination of Services to users who grossly abuse the 316 Solutions Infrastructure through improper or excessive usage.

18.1.19.4   This applies to and will be enforced for intended and unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) prohibited usage.

18.1.19.5  Online activity will be subject to the available bandwidth, data storage and other limitations of the Service provided, which 316 Solutions may, from time to time, revise at its own discretion and without prior notice to the Customer.

Reporting Network Abuse and Complaints

18.1.20  Anyone may report a complaint, a violation or suspected violation of the Acceptable Use Policy to 316 Solutions by contacting 316 Solutions via email: info@316solutions.co.za.

Breach of the Acceptable Use Policy

18.1.21  316 Solutions may, in its sole discretion, determine what constitutes a breach of the Acceptable Use Policy.

18.1.22  Upon 316 Solutions becoming aware of an alleged violation of the Acceptable Use Policy, it may:

18.1.22.1  initiate an investigation into this alleged violation within a reasonable time after becoming aware thereof;

18.1.22.2  restrict or completely withdraw the Customer’s access to the 316 Solutions Infrastructure and Internet during the investigation in order to prevent further possible unauthorized activity – in these circumstances the Customer is not entitled to service credits for these outages.

18.1.23  If the Customer is found in violation of the Acceptable Use Policy, 316 Solutions may, in its sole discretion, restrict, suspend, or terminate the Customer’s account and/or pursue other civil remedies (including but not limited to any costs associated with the investigation of a substantiated policy violation). Generally, violations will be dealt with as follows, however, 316 Solutions may deviate from this if it determines it necessary:

18.1.23.1              first violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Cleanup Fee of R1,500 and the Customer’s account will be reviewed for possible termination;

18.1.23.2              second violations by the Customer of the Acceptable Use Policy will result in the Customer being liable for a Cleanup Fee of R3,500 and immediate termination of the Customer’s account.

18.1.24  If a violation is a criminal offence, 316 Solutions will notify the appropriate law enforcement department of such violation.

18.1.25  The Customer will be liable for any and all costs incurred by 316 Solutions as a result of the Customer’s violation of the Acceptable Use Policy. This includes, but is not limited to, legal fees on an attorney-client basis and costs resulting from Postmaster responses to complaints from and the clean-up of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations, and an investigation fee of no more that R1,500 per hour that 316 Solutions personnel must spend to investigate any violations.

Referral of Complaints to ICASA

19.1        If you are not happy about the outcome of the Complaint you have the right to escalate it to ICASA. If ICASA are not able to resolve the matter it may be referred to the ICASA Complaints and Compliance Committee for adjudication.

19.2        In terms of ICASA Code of Conduct Regulations 2008 you must give us an opportunity to resolve the matter within the 14 day period before you have the right to escalate your complaint to ICASA.

ICASA can be contacted in the following ways:

telephone (011) 566 3000,

fax (011) 444 1919 or

19.3.3 email: consumer@icasa.org.za

Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in South Africa. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.

20           ISPA Takedown notices or complaints

In terms of Section 75 of the Electronic Communications and Transactions Act (“the Act”) 316 Solutions has designated the Internet Service Providers’ Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the Act.

Contact ISPA

Tel: 010 500 1200

Takedown Notice Email

takedown@ispa.org.za

Takedown Notice Information and Form

https://ispa.org.za/tdn/

Postal

PO Box 518
Noordwyk
1687
Midrand

21           VOIP

As International pricing fluctuate on a constant basis, 316 Solutions cannot be held responsible for billing discrepancies of international calling rates.

END