1.1. Hollywood Connect (Pty) Ltd (Hereinafter referred to as “Hollywood Connect”) provides various services to enable electronic communications, including but not limited to, electronic communications network services (Hereinafter referred to as “ECNS”), electronic communications services (Hereinafter referred to as “ECS”) and ancillary support services (ECNS, ECS and the ancillary support services are hereinafter collectively referred to as the “Services”)
1.2. These terms and conditions (Hereinafter referred to as these “Terms and Conditions” govern the supply of the Services by Hollywood Connect to the Customer.
1.3. Unless otherwise indicated, all of these Terms and Conditions are binding on the Customer upon signature hereof.
2. DEFINITIONS AND INTERPRETATION
2.1. In this Agreement and its annexures, the following words or phrases shall have the meanings given to them below, unless the context requires otherwise:
2.1.1. “Admin Fees” refers to the fees payable by the Customer to Hollywood Connect, which Admin Fees are calculated on a sliding scale and based on the number of incidents of non-payment on the Customers payment record;
2.1.2. “Affiliate” refers, with respect to either Party, to any other entity which is a subsidiary or a holding company, or a subsidiary of the holding company of such Party;
2.1.3. “Agreement” refers collectively to the Application Form, these Terms and Conditions, any applicable Service Order Forms and any other annexures attached hereto from time to time and signed by the Parties.
2.1.4. “Application Form” refers to the Hollywood Connect Subscriber Application Form found on page 1 (One) of this Agreement, which Application Form is completed by the Customer and which Application Form constitutes an offer made by the Customer to Hollywood Connect for the provision of Services and/or Equipment, and which offer is open to Hollywood Connect to accept and/or decline in its sole and unfettered discretion;
2.1.5. “Business Customer” refers to a Customer that:
18.104.22.168. is a juristic person; and
22.214.171.124. operates with more than 5 (Five) registered employees; and
126.96.36.199. has requested business-specific services to be rendered by Hollywood Connect to it;
2.1.6. “Business Day” refers to the days in the Republic of South Africa that are not promulgated public holidays or weekends between the hours of 08:00 and 17:00 South African Standard Time;
2.1.7. “Charges” refers to the price that Hollywood Connect charges for Services and/or Equipment, and any amended or subsequent price that applies to those Services and/or that Equipment during the Term, and/or any applicable Renewal Term, of the Agreement. The Charges may comprise, inter alia, the Installation Costs, Admin Fees, Reconnection Fees, Early Termination Fees (where applicable) and MRC elements;
2.1.8. “Commencement Date” refers to the date on which Hollywood Connect provides the Customer with access to the Services;
2.1.9. “CPA” refers to the Consumer Protection Act, Act No. 68 of 2008, as amended from time to time. To the extent that the CPA is applicable to this Agreement, the provisions of the CPA shall prevail in the event of a conflict between any provision of this Agreement and the provisions of the CPA.
2.1.10. “Customer” refers to a person receiving services as defined in section 1 of the ECA;
2.1.11. “Data” and/or “Personal Information” refers to any and all information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person. Personal information may include, but is not limited to:
188.8.131.52. information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
184.108.40.206. information relating to the education or the medical, financial, criminal or employment history of the person;
220.127.116.11. any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;
18.104.22.168. the biometric information of the person;
22.214.171.124. the personal opinions, views or preferences of the person;
126.96.36.199. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
188.8.131.52. the views or opinions of another individual about the person; and
184.108.40.206. the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
2.1.12. “Early Termination Fee” refers to a penalty payable by the Customer to Hollywood Connect in circumstances where the the Agreement is terminated prior to the End Date, and is calculated as the amount of the relevant Installation Fee divided by the number of months in the Term and/or Renewal Term, as applicable, multiplied by the number of months remaining from the date of termination until the End Date.
2.1.13. “ECA” refers to the Electronic Communications Act, Act No. 36 of 2005, as amended from time to time;
2.1.14. “ECN” refers to an electronic communications network, as defined in section 1 of the ECA;
2.1.15. “ECNS” refers to the electronic communications network services, as defined in section 1 of the ECA;
2.1.16. “ECS” refers to electronic communications services, as defined in section 1 of the ECA;
2.1.17. “Electronic Communications” has the meaning ascribed thereto in section 1 of the ECA;
2.1.18. “End Date” refers to the last day of the Initial Term, and/or any subsequent Renewal Terms;
2.1.19. “Equipment” refers to the physical equipment (being moveable property) specified in the Application Form and supplied by Hollywood Connect to the Customer (or such substantially similar equipment as may be substituted therewith by Hollywood Connect from time to time), together with the associated software (but not spare parts) as may be provided by Hollywood Connect or a third party, the ownership in and to which Equipment remains vested in Hollywood Connect;
2.1.20. “Event of Force Majeure” refers, but is not limited to, fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of god; strikes, actions by or among workers or lock-outs (whether or not such labour difficulty could be settled by acceding to any demands of any such labour group of individuals); acts of war, hostilities (whether declared or undeclared), civil commotion, arrest, terrorism, sabotage or acts of the public enemy; any act or omission of any governmental authority; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence, such Party could not avoid or overcome. Notwithstanding the aforegoing, for the purposes of this Agreement:
220.127.116.11. a Party's failure to perform its obligations hereunder due to economic or financial considerations shall not constitute an event of Force Majeure;
18.104.22.168. neither the national lock down nor the National State of Disaster declared by the President of the Republic of South Africa in terms of the Disaster Management Act, 2002, shall constitute an event of Force Majeure;
2.1.21. “Fault” refers to a disruption to or interference in Hollywood Connects Network or Services which results in an interruption, outage or failure, poor functionality, poor or degraded quality and/or availability of the Services;
2.1.22. “ICASA” refers to the Independent Communications Authority of South Africa, which is the regulatory authority for the electronic communications sector in terms of the ICASA Act, Act No. 13 of 2000, as amended from time to time;
2.1.23. “Initial Term” refers to initial period of this Agreement which is agreed to by Hollywood Connect in the Application Form and/or Service Order Form, and the phrase “Renewal Term” refers to any applicable period pursuant to the Initial Term which is agreed to by Hollywood Connect;
2.1.24. “Installation Costs” refers to the costs payable by the Customer to Hollywood Connect prior to the Commencement Date of the Agreement as detailed in the Application Form and/or Service Order Form.
2.1.25. “Hollywood Connect” refers to Hollywood Connect (Pty) Ltd, being a private company registered according to the Company Laws of the Republic of South Africa, with company registration number 2015/131681/07, and whose principal place of business is situated at 6 Tetford Circle, La Lucia, KwaZulu-Natal, 4360;
2.1.26. “Hollywood Connect Network” refers to any one or more of the ECN’s which may be licensed to, owned and/or leased and/or operated by Hollywood Connect and over which the Services are provided from time to time;
2.1.27. “Licensee” refers to an entity which has been licensed to provide ECNS and/or ECS, or has been exempted from licensing by ICASA, or does not require a licence from ICASA only by virtue of the fact that they do not carry live traffic over their ECN;
2.1.28. “Location” refers to the installation address nominated by the Customer in the Application Form;
2.1.29. “MRC” refers to a monthly recurring charge, which MRC’s will depend on the Services selected and the Location of the Customer;
2.1.30. “Parties” refers to Hollywood Connect and the Customer collectively, and the term “Party” refers to r either one of them, as the context may require;
2.1.31. “Prime Rate” refers to the rate of interest per annum charged for the time being by Hollywood Connects duly appointed bank on unsecured overdraft facilities, as certified by any manager of the said bank whose designation and authority it shall not be necessary to prove;
2.1.32. “Services” refers to the provision of, inter alia, access to Hollywood Connects Network, the provision of ECNS, and/or the provision of ECS, and/or the provision of ECN maintenance services, and/or such other services as Hollywood Connect may offer from time to time;
2.1.33. “Software” refers to applications that are required to operate the Equipment, or add-on applications for enhanced functionality and that may be supplied to the Customer by Hollywood Connect from time to time;
2.1.34. “Supplier” refers to the company/ies that may provide the Services and/or Equipment to Hollywood Connect from time to time, which Services and/or Equipment Hollywood Connect may make available to the Customer in terms of this Agreement;
2.1.35. “VAT” refers to value-added tax, as defined in the Value-Added Tax Act, No. 89 of 1991, as amended from time to time; and
2.2. Any reference to a law or regulation is to that law or regulation as at the Commencement Date of this Agreement, and as amended from time to time.
2.3. In the event of any conflict between the provisions of this Agreement or the provisions of any Application Form and/or Service Order Form, or other annexure or schedule, then the following order of precedence shall apply in the interpretation of this Agreement:
2.3.1. this Agreement except that the Application Form and/or Service Order Form shall always determine the Commencement Date, Initial Term, Location, and Equipment and Services to be provided;
2.3.2. the Application Form / Service Order Form;
2.3.3. the other annexures or schedules duly signed by both Party’s.
2.4. The expiry or termination of this Agreement shall not affect those provisions of this Agreement which provide that they will operate after any expiry or termination, or which notwithstanding that they may not expressly provide therefor, are intended to operate after any expiry or termination of this Agreement for whatsoever reason.
2.5. The rule of construction that an agreement shall, in the event of ambiguity, be interpreted against the party responsible for the drafting or preparation of that agreement, shall not apply to this Agreement
2.6. When any number of days is prescribed in this Agreement, the days shall be calculated exclusive of the first day and inclusive of the last day, unless the last day does not fall on a business day, in which case the last day shall be the next Business Day.
2.7. Any reference to a sum of money in this Agreement is a reference to that sum of money exclusive of VAT, unless otherwise expressly specified.
3. DURATION AND TERMINATION
3.1 Subject always to Hollywood Connect having accepted the offer contained in the relevant Application Form, this Agreement shall come into full force and effect upon signature by the Customer and shall remain in full force and effect for the duration of the Initial Term, and/or any subsequent Renewal Terms, unless earlier terminated by either Party as a result of an unremedied breach in accordance with the breach provisions contained hereunder, or unless terminated by either Party in accordance with clause 3.2 hereunder.
3.2 Subject to anything to the contrary contained elsewhere in this Agreement, and where applicable subject to the payment of an Early Termination Fee by the Customer, either Party may terminate this Agreement at any time by giving the other Party at least 1 (One) calendar months prior written-notice.
3.3 Either Party may also terminate this Agreement if the other Party (“Defaulting Party”) breaches any term hereof and fails to remedy such breach within a period of 7 (Seven) Days following written demand from the other Party (“Innocent Party”), which termination shall be without prejudice to any other rights that the Innocent Party may have as against the Defaulting Party in law.
3.4 Either Party may also terminate this Agreement, in the event that the other Party is sequestrated, placed into liquidation (provisional or final) or goes into business rescue.
3.5 On termination, Hollywood Connect will cease to provide the Services. The Customer will be liable, without prejudice to any other rights Hollywood Connect may have available to it in law and/or elsewhere in this Agreement, for all charges that are still due and payable at the date of termination, together with any applicable Early Termination Fee, as per clause 4 together with the due and proper return of any Equipment belonging to Hollywood Connect.
4. EARLY CANCELLATION FEE, ASSOCIATED COSTS AND RETURN OF EQUIPMENT
4.1 The Early Termination Fee payable by the Customer to Hollywood Connect will be determined as follows:
4.2.1 In the event that the Agreement is conducted on a month-to-month basis, as indicated in the relevant Application Form and/or Service Order Form, and subject to a full calendar months prior-written notice of termination being given, no Early Termination Fee shall be payable, and the Customer shall simply be required to return any and all Equipment belonging to Hollywood Connect.
4.2.2 In the event that the Agreement is entered into for a fixed term, ie: for the duration of an agreed Term and/or any applicable Renewal Term, and as indicated in the relevant Application Form and/or Service Order Form, and the Agreement and/or Service is subsequently terminated prior to the Commencement Date thereof, the Customer shall be liable for an amount equal the actual cost that has been incurred by Hollywood Connect prior to the termination notice.
4.2.3 In the event that the Agreement is entered into for a fixed term, ie: for the duration of an agreed Term and/or Renewal Term and as indicated in the relevant Application Form and/or Service Order Form, and the Agreement and/or Service is subsequently terminated post the Commencement Date but prior to the relevant End Date, the Customer shall be required to pay Hollywood Connect an Early Termination Fee calculated in accordance with clause 2.1.12 above.
4.2.4 In amplification of clause 4.2.3 above and by way of illustration only, if the Term of the Agreement is for 12 (Twelve) months and the Installation Costs are R 2 750.00 (Two Thousand Seven Hundred and Fifty Rand), and the Customer terminates the Agreement and/or Service after 4 (Four) months, the Early Termination Fee would be calculated as follows:
(Installation Fee of R 2 750.00 divided by the Term of 12 months) multiplied by the remaining 8 months of the Term = R 1 833.34 (Early Termination Fee).
5. CHARGES AND PAYMENT
5.1 The Customer will be required to pay any applicable the Installation Costs (where applicable on a month-to-month basis), any Admin Fees, any Reconnection Fees and any Early Termination Fees, together with any applicable interest thereon, upon invoice from Hollywood Connect, however all MRC’s are payable monthly in advance.
5.2 The Customer shall continue to make payment of the Charges as they fall due even if any dispute arises concerning the Charges or any other matter. Should a dispute regarding an invoice occur, Hollywood Connect shall be entitled to continue receiving full payment for any and all Services rendered without prejudice to any other rights it may enjoy herein or at law.
5.3 If a Customer subscribes to a Service during the middle of a month, the Customer will be billed a pro-rata amount for the rest of the month, which pro-rata amount may be added to the Customers first invoice.
5.4 Invoices will be emailed to the Customer and the Customer undertakes to ensure that it has provided Hollywood Connect with a valid email address for this purpose, and the Customer further agrees to accept delivery of electronic invoices as valid invoices.
5.5 All Charges and other amounts payable are quoted exclusive of VAT.
5.6 All payments must be made in South African Rand, free of exchange, set-off or deduction, and by debit order unless otherwise agreed in writing, to the account set out below:
Acc No: 198765
Branch Code: 198765
5.7 The Customer’s first invoice will consist of the (prorated – if applicable) MRC as well as the applicable Installation Costs and shall be payable prior to the Commencement Date.
5.8 The Application Form makes provision for signing a debit order mandate in favour of Hollywood Connect. If the Customer opted for this method of payment, Hollywood Connect will submit the debit order to the Customer’s account at month end in the month prior to the month in which the Services are being rendered, and on successful receipt of the debit order, Hollywood Connect will process the payment to the Customer’s connectivity account. The reference number to be used by the Customer will be the Customer’s connectivity account number, which will be sent to the Customer via email when the Equipment was activated.
5.9 If the Customer fails to make any payment on the due date, Hollywood Connect may, without prejudice to any of its other rights, suspend the performance of its obligations, and shall be entitled to charge the Customer interest on the overdue amount from the due date to the date of actual payment at the rate of 2% (two percent) above the Prime Rate being charged by Hollywood Connects bankers, plus any additional costs incurred by Hollywood Connect as a result of the Customer’s failure to make payment on the due date. The interest will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest.
5.10 Hollywood Connect will not accept any liability or responsibility for delays, suspensions or impact to Services due to use of non-approved payment methods by the Customers.
5.11 If the Customer’s debit order bounces for any reason, Hollywood Connect reserves the right to resubmit the debit order at any time, and/or to suspend the provision of Services pending the successful processing of the debit order.
5.12 Non-payment of any Charges by due date, whether as a result of unpaid debit orders, declined cards or any other cause may result in immediate suspension of Services (which may not be limited to the particular Service in question). Hollywood Connect reserves the right to suspend any Services for non-payment, and to withhold such Services until all arrears, together with any applicable interest and other admin fees are settled in full on any and all Equipment and Services.
5.13 Services which have been suspended for non-payment of Charges will remain suspended until payment has been made and the Service is reconnected as described below. The Customer will not be credited for data or Services that would otherwise have been available to the Customer during the period of suspension.
5.14 If the Customer remains in default of a monthly Charges for 2 (two) consecutive calendar months, Hollywood Connect may terminate the Agreement with immediate effect. The Customer will remain liable for all Charges for any period of suspension together with any applicable Early Termination Fee, without prejudice to any other remedies Hollywood Connect may have available to it in terms of this Agreement and/or in law.
5.15 Hollywood Connect shall be entitled to vary the Charges payable by the Customer upon 30 (thirty) days’ notice. Should the Customer not be amendable to paying the amended Charges, the Customer may terminate the Agreement by giving notice thereof, which termination shall become effective upon the date that the Charges change, but not prior thereto.
5.16 If Hollywood Connect has to incur additional costs to supply the Services or install the Equipment at a new location (that is not the Location that the Customer originally requested when requesting and confirming the Service on the Application Form) and provided that Hollywood Connect agrees to change the Location to which it provides Equipment or Services, which it may refuse to do in its sole discretion and/or on such amended terms as it deems appropriate, the Customer will be liable for all of those additional costs. The Customer expressly and irrevocably undertakes to insure, at its own expense and expressly noting the insurable interest of Hollywood Connect, any Equipment supplied to it.
5.17 The Customer will be liable for additional Charges for any support services that are required as a result of damage to the Equipment and/or ECN, where such damage has been caused by the Customer's negligence or misuse.
5.18 Should the Customer settle all unpaid Charges together with any applicable interest thereon, the Customer may be reconnected as described below:
5.18.1 Hollywood Connect may charge an Admin Fee for failed or returned payments, regardless of method of payment or the reason for non-payment. Such Admin Fees are payable immediately and in conjunction with the outstanding Charges which resulted in non-payment. Non-payment of Admin Fees will be considered non-payment and will be subject to the same terms. Once levied, Admin Fees are not recoverable or reversible, regardless of whether payment is made within the prescribed period.
5.18.2 If the Customers Services are suspended or terminated for any reason, including non-payment, Hollywood Connect may charge a reconnection fee for subsequent reactivation of Services.
5.18.3 Reconnection Fees are payable in full before any Services can be reactivated, once suspended. Hollywood Connect may charge multiple Reconnection Fees where multiple Services are affected and may charge "escalating" penalties for repeated non-payment offences. Any prior leniency shown in this regard will not prejudice Hollywood Connects right to enforce such penalties in full at any time (within its discretion).
5.18.4 Reconnection of Services may be subject to a waiting period of up to 72 (seventy-two) hours, regardless of when payment is received or cleared.
5.18.5 In cases of suspension of Services due to non-payment, Hollywood Connect reserves the right to levy both Reconnection Fees and Admin Fees together with interest on the overdue amounts. Any and all Charges must be settled in full, prior to reconnection of affected Services.
5.18.6 Both Admin Fees and Reconnection Fees will not exceed R 300 [Three Hundred Rand] (charged on a sliding scale based on the number of incidents of non-payment), and this amount is based on (but not limited to) a reasonable estimation of accumulated administrative costs (such as labour), bank penalties and resubmission charges levied by payment carriers.
5.19 A certificate signed by any financial manager of Hollywood Connect shall be prima facie proof of the amount owing by the Customer for the purposes of obtaining provisional sentence or summary judgment. The burden of proof should the Customer dispute the correctness of such signed certificate, shall rest with the Customer.
5.20 Hollywood Connect and/or its nominated agents reserves the right to carry out a general credit check on the Customer before accepting any Application Form and/or Service Order Form, or at any time during the Term, or any relevant Renewal Term, of this Agreement. The purpose of the credit check is to determine whether or not the Customer meets Hollywood Connect's credit criteria and risk profile. By entering into this Agreement, the Customer consents to Hollywood Connect conducting these check/s.
5.21 To ensure accuracy of information collected for the credit check and to carry out the credit check, Hollywood Connect may ask for copies of identity documents, company registration documents, VAT certificates, banking details, references or other documents. Hollywood Connect undertakes to use this information only for the purposes of undertaking the credit check and/or performing its obligations in accordance with the terms of this Agreement, and for no other purposes. Hollywood Connect will not alter, adjust, or copy the Customer's information, nor disclose it other than for these purposes. The Customer may request that Hollywood Connect return this information back to the Customer at any time or delete it, which request shall be dealt with in accordance with any relevant legislation applicable to Hollywood Connect, including but not limited to the Protection of Personal Information Act, No 4 of 2013, as amended from time to time.
5.22 In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time through the complaint procedure set out in clause 18 of this Agreement and to continue paying any and all Charges as and when they become due, to prevent interruption of Services while the billing is in dispute. Reparations will be made to Customers with successful disputes by means of an account credit or refund, at Hollywood Connect's discretion.
5.23 Hollywood Connect reserves the right to terminate Services where a Customer has shown a repeated disregard for payment terms and consistently fails to make regular scheduled payments on time and using approved payment methods.
6 DEBIT ORDER AUTHORISATION
6.1 By accepting the Terms and Conditions contained in this Agreement, the Customer hereby authorises Hollywood Connect to debit their nominated bank account or Visa/Mastercard any variable amount pertaining to the Service or Equipment they have selected, on sign up for a calculated pro-rata and thereafter at the beginning of each month (or on signup entirely for purchase of non-service products). This sum being the amount for settlement of the monthly amount due by the Customer in respect of the Services as described in the Application Form and/or any applicable Service Order Form.
6.2 The Customer authorises Hollywood Connects nominated agent to debit their bank account or Visa/Mastercard on Hollywood Connects behalf (the “Authorised Party”). The debit authority will remain in force until such Services are cancelled, subject to the condition that Customer agrees that debits related to cancellation notice periods will be honoured before the expiration of the debit authority.
6.3 The Customer agrees that the Authorised Party may freely cede, delegate or assign any of its rights or obligations in terms of this debit order instruction without consent from the Customer, and that the Customer may not cede, delegate or assign any of their rights and obligations in terms of this debit order instruction to any third party without the prior written consent of the Authorised Party and of Hollywood Connect.
7.1 The Customer acknowledges that the Equipment is and remains the property of Hollywood Connect, and the Customer shall use the Equipment only for the purpose for which it is intended and in accordance with any laws or regulations.
7.2 Notwithstanding the retention of ownership by Hollywood Connect, risk in and to the Equipment will pass to the Customer on delivery.
7.3 Should the Customer not be the owner of their respective premises, the Customer shall notify the owner of the premises, of Hollywood Connect's ownership of the Equipment in writing as soon as possible before the Commencement Date and shall do all such things as are reasonably within his/her power to protect the ownership rights of Hollywood Connect in relation to the Equipment.
7.4 Should the Customer move from their respective premises, the Customer will inform Hollywood Connect of the cancellation of the Service in writing, in which event the Customer may be liable for payment of, inter alia, Early Termination Fees.
7.5 The Customer may not decompile, reverse engineer, modify, tamper with, add to or in any way alter the Equipment.
7.6 If the Customer cancels the Service, the Customer will be billed for the Equipment, or the Customer may return the Equipment, at its own cost, to Hollywood Connect in its original condition and original packaging, as per the following:
7.6.1 The Customer will have 20 (twenty) days from the time their Service is deactivated (turned off at the end of the 1 (One) calendar months' notice) to return the Equipment.
7.6.2 Hollywood Connect will send the Customer a reminder 10 (ten) days from the time the Service is deactivated, if Hollywood Connect has not yet received the Equipment.
7.6.3 If Hollywood Connect does not receive the Equipment back from the Customer within the 20 (twenty) day return period, the Customer will be billed for the Equipment, and upon full payment therefor, it will be owned by the Customer.
7.6.4 No Equipment returns will be accepted after 20 (twenty) days have elapsed from the time the Customer’s account was deactivated.
7.6.5 All courier costs and/or risks involved in returning the Equipment are for the Customer’s own account.
8.1 If the Services are to be provided to a specific Location, then the Customer may not change that Location without the written consent of Hollywood Connect, which consent may be withheld in the sole and absolute discretion of Hollywood Connect.
8.2 Hollywood Connect's Services and ECN are provided in some cases by other Licensees or third-party Suppliers who Hollywood Connect may depend on.
8.3 The Customer acknowledges and accepts that although Hollywood Connect will exercise all their rights under their respective agreements with those 3rd parties to ensure that they continue to provide the Customer with the Services, as the case may be, Hollywood Connect may not be able to continue to render Services to the Customer in the same way or at all, in which event the Customer accepts that it shall have no claim for non-performance by Hollywood Connect.
9 DOWNGRADES AND UPGRADES
9.1 The Customer must notify Hollywood Connect of downgrades or upgrades (i.e., a change in the type of Service selected by the Customer) to its selected Services on or before the 20th (twentieth) of each month, in order for the relevant 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 the Hollywood Connect, the Customer will continue to be charged for the rate of the existing Service.
9.2 If a Service is downgraded during the month, there will be no refund/pro-rata for the money already paid for that Service.
9.2.1 Downgrades or Upgrades must be done using the online portal found on Hollywood Connect's website or by contacting Hollywood Connect via email on supp[email protected] or via telephone on +27 87 093 6949.
10.1 The Customer remains responsible for all amounts due in term of this Agreement up until the date of termination, together with any costs or expenses relating to the termination of this Agreement and the cancellation of the Services, including, but not limited to the replacement cost of any Equipment which Hollywood Connect is unable to recover for any reason or which is damaged, etc.
10.2 The Customer may not do or omit to do anything that directly or indirectly:
10.2.1 damages the Equipment or Hollywood Connect's ECN or compromises Hollywood Connect's Services; or
10.2.2 which the Customer should reasonably have anticipated to have this effect;
10.2.3 the Customer shall be liable for any expense incurred by Hollywood Connect, or damages suffered by Hollywood Connect in remedying the effects of the abovementioned damages and the Customer shall, on demand, reimburse Hollywood Connect in the amount necessary to cover such expense.
10.3 Hollywood Connect may, upon notice to the Customer, suspend part of, or the full use of the Services provided to the Customer, if the Customer fails to perform any obligation under this Agreement, without prejudice to any other rights it may enjoy.
10.4 The Customer shall ensure reasonable access to the Location is afforded to Hollywood Connect and/or its duly appointed representatives, for the installation and/or removal (if applicable) of Equipment, and/or for purposes of allowing Hollywood Connect to fulfill its obligations in terms of this Agreement.
11 INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
11.1 The Customer will not have any rights of ownership or use in or to the trademarks, design, specification, software and other intellectual property in and in relation to the Equipment, ECN’s and Services, or manner in which the Services are provided, other than as set out in this Agreement.
11.2 The Customer may not remove, alter or add to the serial number, identification number, labels, trademarks, logos or other identifying symbols that exist on the Equipment (the “Marks”). The Customer may not use the Marks in connection with the Customer’s own products or services or represent to any person that the Customer is the owner of the Marks or represent that the Supplier has endorsed the Customer, or their own products and services as a result of Hollywood Connect allowing the Customer to use the marks.
11.3 Hollywood Connect will keep all information supplied to, or acquired by it, in connection with this Agreement strictly confidential, and shall not use such information or any part thereof for any purpose other than permitted in this Agreement or at law.
12 CESSION, ASSIGNMENT, AND SUB-CONTRACTING
12.1 Hollywood Connect shall be entitled to cede and/or assign to any third-party, at its absolute discretion, all or any of its rights and/or obligations under this Agreement.
12.2 The Customer may not cede or assign any of its rights or obligations under this Agreement without the express prior written consent of Hollywood Connect, which consent Hollywood Connect shall not be obliged to provide.
13 FORCE MAJEURE
13.1 If either Party is rendered unable, in whole or in part, by an Event of Force Majeure to perform or comply with any obligation or condition of this Agreement, such obligation or condition shall be suspended to the extent and for the duration of the continuance of the inability so caused, and such Party shall be relieved of any liability during such period, provided that the Event of Force Majeure will not operate to suspend the obligation of a Party to make payment if such payment becomes due and payable for Services rendered in terms of this Agreement.
13.2 The Party declaring an Event of Force Majeure shall give prompt written notice to the other Party specifying the exact nature of the intervening circumstances and its estimated duration.
13.3 The Party declaring an Event of Force Majeure shall use all reasonable endeavours and employ all reasonable means to overcome or abate the Event of Force Majeure as quickly as possible.
13.4 If an Event of Force Majeure continues for a period of more than 30 (thirty) days, the Parties will consult with each other with a view to the future implementation of this Agreement. If no agreement is reached by the Parties in this regard within a period of 7 (seven) days thereafter, either Party may terminate this Agreement forthwith upon 14 (fourteen) days’ prior written notice to the other.
14 PRIVACY AND POPI
14.1 Hollywood Connect will use the Customer Personal Information strictly in accordance with the Regulations promulgated in terms of the ECA and/or the the POPI Act, whichever is applicable
14.2 Hollywood Connect will only collect Personal Information consistent with the purpose for which it is required. The specific purpose for which the information is collected will be apparent from the context in which the information is requested.
14.3 The nature of the Personal Information which will be collected relates to contact details (such as name, address, telephone number and e-mail address).
14.4 In providing the Personal Information to Hollywood Connect, the Customer acknowledges that the information has been collected directly from them, in their capacity as a Data Subject as defined in terms of the POPI Act, and that the Customer have knowingly and expressly consented to its processing by Hollywood Connect. Where the Customer is providing another person’s Personal Information to Hollywood Connect, the Customer warrants that it has obtained such person’s informed and express consent to the processing of their Personal Information for purposes of Hollywood Connect providing the Services.
14.5 Provision of Personal Information to Hollywood Connect is voluntary, and in the event that the requested information is not provided, Hollywood Connect may not be able to provide Services. The Personal Information shall only be used for the purpose for which it was collected, unless the Customer has agreed to an alternative purpose in writing or as allowed by any applicable law.
14.6 Hollywood Connect will only process Personal Information in a manner that is adequate, relevant and not excessive in the context of the purpose for which it is processed.
14.7 Hollywood Connect will take such steps as may be required to ensure that it complies with any law in respect of transfer, storage, security and use of the Personal Information.
15 LIABILITY AND DISCLAIMERS
15.1 In accordance with the express provisions of this Agreement, Hollywood Connect will not be liable for:
15.1.1 Any loss or liability resulting from Service access delays or Service access interruptions; or
15.1.2 Any loss or liability resulting from data non-delivery or data mis-delivery; or
15.1.3 Any loss or liability resulting from an Event of Force Majeure; or
15.1.4 Any loss or liability resulting from the unauthorised use or misuse of the Customer’s account identifier or password; or
15.1.5 Any loss or liability resulting from errors, omissions, or misstatements in any and all information or Services(s) provided under this Agreement; or
15.1.6 Any loss or liability resulting from the interruption of the Customer’s Service.
15.1.7 Any loss or liability attributable to any 3rd party and/or any of their duly appointed agents and/or representatives.
15.2 The Customer irrevocably agrees to indemnify Hollywood Connect, including its directors, employees, consultants, sub-contractors, Suppliers, Licensors and Affiliates) and at all times keep them indemnified against any and all direct and/or indirect losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgements whatsoever in relation to, or arising directly, or indirectly, out of the provision by Hollywood Connect of the Services and/or the Equipment.
15.3 The Customer will reimburse Hollywood Connect from time to time for all costs and expenses (including legal and other professional fees) that Hollywood Connect 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 Hollywood Connect 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 Hollywood Connect’ fraud, gross negligence or breach of this Agreement.
15.4 Subject to the provisions of the CPA, to the extent that the CPA is applicable hereto, Hollywood Connect 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, delict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by Hollywood Connect of the Services and/or Equipment, 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 this Agreement by Hollywood Connect. In these, or any other circumstances, the maximum amount of the liability of Hollywood Connect in respect of such losses, damages, costs or expenses will be limited to the amount of Charges that have been paid to Hollywood Connect by, or on behalf of, the Customer in connection with the Services in the past 6 (Six) months preceding the cause of action leading to such losses, damages, costs or expenses.
15.5 Hollywood Connect will not be liable for the Customer’s compliance, and/or non-compliance, with any laws, rules and/or regulations that may govern the Customer’s purchase and/or use of the Equipment and/or Services, and the Customer expressly and irrevocably undertakes to indemnify and hold harmless Hollywood Connect, including its directors, employees, consultants, sub-contractors, Suppliers, Licensors and Affiliates, against any losses, damages, costs, fines, and/or penalties which either it, and/or Hollywood Connect may incur as a result thereof.
15.6 The Customer agrees that Hollywood Connects entire liability, and the Customer’s exclusive remedy, with respect to any Services(s) and/or Equipment provided under this Agreement, and any breach of this Agreement is solely limited to the amount of the Charges paid by the Customer to Hollywood Connect in the immediately preceding 6 (six)-month period.
15.7 Under no circumstances shall Hollywood Connect, its directors, employees, consultants, sub-contractors, Suppliers and Affiliates be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services and/or Equipment, including for the cost of procurement of substitute services and/or equipment.
15.8 The Customer indemnifies Hollywood Connect, its directors, employees, consultants, sub-contractors, Suppliers, Licensors and Affiliates against any loss, cost, damage or expense resulting from any claim by virtue of the Customer’s breach of any of the terms and conditions of this Agreement.
15.9 Subject always to the provisions of the CPA, to the extent that it is applicable, Hollywood Connects Services are provided on an as is, as available, basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Hollywood Connect expressly disclaims any representations or warranties that Hollywood Connect services will be error-free, secure or uninterrupted.
15.10 No oral advice or written information given by Hollywood Connect, its directors, employees, consultants, sub-contractors, Suppliers, Licensors and Affiliates, will create a warranty; nor may the Customer rely on any such information or advice as if it were a warranty. The terms of this section will survive any termination of this Agreement.
15.11 Hollywood Connect will use its best efforts to ensure that the Services are available, but cannot guarantee that it will not be interrupted and/or error free. In amplification of this, the Customer hereby acknowledges and accepts that the ECN and/or Service may, at various times, be down for various reasons including, but not restricted to, utility interruption, Equipment failure, an Event of Force Majeure, or human error.
15.12 The terms of this clause 15 will survive termination of this Agreement.
16 MONITORING AND DATA COLLECTION
16.1 Hollywood Connect may be obliged by, inter alia, its Suppliers and/or other regulatory authorities, including but not limited to ICASA, to monitor the performance of the Equipment and/or Services on Hollywood Connects ECN from time to time to enable the Supplier/s to improve where possible, or if necessary, take corrective action to ensure enhanced performance, and to comply with any applicable regulatory obligations as a Licensee. Hollywood Connect will give the Customer as much notice as possible of any requirements in this regard and the Customer will undertake to comply with the Hollywood Connect request for these purposes.
16.2 Hollywood Connect may also need to disclose the Customer’s Data to Hollywood Connects Supplier/s to enable them to enter the Location as Hollywood Connects agent, or to effect repairs or maintenance on that part of Hollywood Connects ECN.
16.3 The Customer hereby gives Hollywood Connect permission to release the Customer’s Data for the purposes set out in this clause 16, subject always to Hollywood Connect complying with any and all applicable laws including, but not limited to, the POPI Act and the ECT Act.
17 DISPUTE RESOLUTION
17.1 If a dispute arises between the Parties about any matter related to this Agreement, the Customer and Hollywood Connect agree to implement the dispute resolution procedure set out hereunder:
17.1.1 First level escalation: the finance manager of each Party of equivalent status, shall be in contact by telephone or email to attempt to resolve the dispute amicably within 5 (five) days. In order to resolve the dispute, each Party shall provide the other with relevant documentation required for purposes of determining the dispute.
17.1.2 Second level escalation: if first level escalation is not successful, the Parties shall refer the matter along with the relevant documentation to the general manager or representatives of equivalent status who shall attempt to resolve the dispute within a period of 15 (fifteen) days. If the Customer is not a juristic person then this level of escalation may not be required.
17.1.3 Third level escalation: if the Parties are still unable to resolve the dispute amicably, either of the Party’s may refer the matter to arbitration for final resolution in Johannesburg by the Arbitration Foundation of South Africa (“AFSA”) by an arbitrator appointed by AFSA in accordance with the AFSA rules.
17.2 This clause 17 shall not prevent the Parties from approaching a court of competent jurisdiction to obtain urgent interim relief.
17.3 Failure to follow all of the steps in this procedure and to provide relevant documentation (subject at all times to the provisions of this Agreement dealing with confidentiality) shall constitute a material breach of this Agreement.
18 BILLING DISPUTES
18.1 For billing disputes, the Customer is required to direct a complaint to [email protected] (“Billing Dispute Notice”).
18.2 The Customer’s Billing Dispute Notice is required to be accompanied by the following:
18.2.1 the Customer’s full particulars and contact details;
18.2.2 the Customer’s relationship with Hollywood Connect and any customer reference which may be applicable;
18.2.3 a statement of the reasons for the complaint with enough detail to allow Hollywood Connect to assess the stated reason; and
18.2.4 any relevant evidence or other documentation which the Customer wishes to submit in support of the Customer’s complaint.
18.3 A complaint may be lodged in the required manner within 60 (sixty) days from the date of the relevant invoice, whereafter the complaint shall prescribe and the Customer shall be prevented from referring a further complaint for the same issue.
18.4 Under the ICASA Code of Conduct Regulations, Hollywood Connect is required to:
18.4.1 Acknowledge receipt of the Customer’s complaint within 3 (three) Business Days; and
18.4.2 Determine an outcome for the Customer’s complaint and communicate this to the Customer within 14 (fourteen) Business Days.
18.5 Hollywood Connect shall provide a response to the Customer’s complaint within 14 (fourteen) Business Days, which response may be a rejection of the Customer’s complaint on the basis that:
18.5.1 the billing Dispute Notice Notice was not received by Hollywood Connect within 60 (sixty) days from the date of the relevant invoice;
18.5.2 the Customer’s complaint does not contain all of the information set out in clause 18 (Eighteen) of this Agreement or was not submitted in accordance with clause 18 (Eighteen).
18.5.3 The Customer has not made payment in accordance with (and does not have a right to withhold payment) in terms of this Agreement.
18.5.4 Hollywood Connect has confirmation from the Customer that the Customer’s complaint has been resolved;
18.5.5 Hollywood Connect reasonably believes that the Customer does not have a bona fide dispute in relation to the disputed Charges.
18.5.6 A request for information or documentation from the Customer lodging the complaint, which is reasonably required to assist Hollywood Connect in making a determination in the matter, is not duly and properly provided. The Customer shall provide such information or documentation as soon as possible and shall not unreasonably delay providing the requested information and documentation.
18.5.7 A determination of the complaint and the reasons for such determination.
18.6 As a current or prior Customer of Hollywood Connect, the Customer agrees to allow Hollywood Connect to attempt settlement of any billing complaint for 14 (fourteen) Business Days before raising a dispute with any third-party, credit card company or bank.
18.7 Hollywood Connect requires that the Customer agrees that Hollywood Connect be the first option in terms of this Agreement for any billing complaints.
18.8 Should Hollywood Connect receive a chargeback or other reversed charge from a third-party, credit card company or bank on the Customer’s behalf before Hollywood Connect has been given a chance to resolve the issue with the Customer, Hollywood Connect has the right to collect on the rendered Services and any fees associated with those disputes.
18.9 Not all billing complaints may be settled to the Customer's satisfaction. Once this procedure as stated in clause 18 (Eighteen) of this Agreement has been exhausted, the Customer may use any third-party, credit card company or bank in an attempt to settle the dispute. However, Hollywood Connect still retains the right to collect on any rendered Services or Charges that are due. Should Hollywood Connect be unable to reverse any disputed amounts with a third-party, credit card company or bank, Hollywood Connect will submit the full delinquent amount for collection. Hollywood Connects rights are reserved.
18.10 Hollywood Connect reserves the right to take such measures immediately:
18.10.1 Where a determination of the Billing Dispute Notice has been made and communicated to the Customer; or
18.10.2 Where the Customer has indicated that it is unable to pay its invoice or bill or has filed or are the subject of any application to court for sequestration or liquidation or otherwise seek to reach a formal arrangement with the Customer's creditors.
19 REFFERAL OF COMPLAINTS TO ICASA
19.1 The Customer has the right to refer complaints to ICASA. If ICASA is not able to resolve the matter, it may be referred to the ICASA Complaints and Compliance Committee for adjudication.
19.2 Please note that under the ICASA Code of Conduct Regulations 2008, the Customer must give Hollywood Connect an opportunity to resolve the matter within the 14 (fourteen) day period before the Customer has the right to escalate its complaint to ICASA.
19.3 ICASA can be contacted in the following ways:
19.3.1 Telephone (011) 566 3000;
19.3.2 Fax (011) 444 1919; or
19.3.3 Email: [email protected]
19.4 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 in terms of clause 17 (Seventeen) of this Agreement.
20 TAKEDOWN NOTICES
20.1 In terms of Section 75 of the ECA, Hollywood Connect has designated the Internet Service Providers' Association (“ISPA”) as an agent to receive notifications of infringements as defined in Section 77 of the ECA.
20.2 The following details can be noted of ISPA in relation to making complaints:
20.2.1 Telephone: 010 500 1200
20.2.2 Takedown Notice Email: [email protected]
20.2.3 Takedown Notice Information and Form: https://ispa.org.za/tdn/
P.O. Box 518
21 NOTICES AND ADDRESSES FOR SERVICE
21.1 Unless otherwise specified any notice or communication in terms of this Agreement:
21.1.1 must be in writing to be effective;
21.1.2 must be sent by hand, registered post or e-mail to the addresses below, which physical addresses the Parties select as their respective domicilium citandi et executandi:
21.2 A Party may change its address to any other address within the Republic of South Africa. Such change will only take effect upon receipt or deemed receipt of such notice by the other Party.
21.3 The Customer must notify Hollywood Connect of any change of address.
21.4 Any notice or communication shall:
21.4.1 if delivered by hand during business hours to the person apparently in charge of the address selected, be deemed to have been received on the date of delivery, provided proof of delivery to this person can be proven by the sender;
21.4.2 if sent by registered post, be deemed to have been received 6 (six) days after posting provided the date of sending can be proven by the sender; and
21.4.3 if sent by e-mail, be deemed to have been received on the first day following the date on which it has been transmitted from the information system under the control of the sender, provided the time and date of transmission can be proven by the sender.
21.5 Any written notice or communication which has actually been received by a Party shall be regarded as sufficient notice even if it has not been sent in the manner or to the address provided for above.
21.6 Emails 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 if sent after 16h00 on a Business Day or if sent on a non-Business Day.
22.1 The Customer warrants and represents that all information provided on the Application Form or elsewhere relating to this Agreement is true, correct, and complete, and the Customer indemnifies Hollywood Connect against any claim that may arise as a result of a breach of this warranty.
22.2 Hollywood Connect shall further be entitled to disclose any information of the Customer to enable the provision of emergency services, directory or repair services to the Customer and for any purpose for which such information is required in law.
23.1 The Parties acknowledge and agree that this Agreement sets out the whole of the agreement between them and that there are no other agreements, guarantees, or representations, either verbal or in writing, in regard thereto upon which any Party is relying in concluding this Agreement.
23.2 No variation of this Agreement shall be binding unless recorded in writing and signed by the Parties, save that Hollywood Connect may vary this Agreement from time to time upon written notice thereof to the Customer.
23.3 No Party shall be bound by any express or implied term, representation, warranty, promise, or the like not recorded herein.
23.4 No indulgence which either Party may grant to the other shall constitute a waiver of any of the rights of the grantor.
23.5 If any provision of this Agreement shall be held illegal or unenforceable, such provision shall be deemed separate and divisible from and shall in no way affect or impair the validity or enforceability of the remaining provisions.
23.6 The interpretation of this Agreement will be governed by the laws of the Republic of South Africa. The Parties agree that this Agreement is subject to the exclusive jurisdiction of the Durban Magistrate's Court.