Terms and Conditions
- Definitions
1.1 Unless the context clearly indicates otherwise, the following words, phrases and expressions shall have the respective meanings assigned thereto hereunder:
1.1.1 “the/this agreement” means these terms and conditions of use, including the Schedule, the Service Provider (Bakone Preon cc herein referred to as Preontek)’s website terms and conditions of use, the Service Provider’s copyright notice, the Service Provider’s privacy policy, the Service Provider’s mailbox rules and all other terms and conditions which the Service Provider might from time to time impose in respect of the service, as amended and updated from time to time
1.1.2 “effective date” means the date on which Preontek activates the Customer’s subscription to the service or the date of last signature hereto, whichever is earlier.
1.1.3 “service(s)” means the service or services described in this agreement and any other service that the Customer might subscribe to or which might form part of Preontek’s offering from time to time;
1.1.4 “Membership fee” means the fee provided for in this agreement, as set out in Preontek’s standard price list from time to time.
1.2 If any provision in a definition is a substantive provision imposing rights or obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
1.3 When any number of days is prescribed in this agreement, same shall be reckoned exclusive of the first and inclusive of the last day unless the last day falls on a Sunday, Saturday, or public holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
1.4 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.5 Unless the context indicates the contrary, each reference to:
1.5.1 the singular shall include a reference to the plural and vice-versa;
1.5.2 any one gender shall include reference to each of the other gender; and
1.5.3 a natural person shall include a reference to a Body Corporate and vice-versa.
1.6 Headings to clauses are for reference purposes only and shall not govern the interpretation of this agreement
2. Introduction
2.1 Preontek sells access to it’s network on a subscription basis which facilitates use of the worldwide web, electronic mail, FTP and related services via a dialup, wireless, fibre or other medium for Customers with a valid service agreement.
2.2 By using the service provided by Preontek, the Customer will be signifying his/her acceptance of the terms and conditions of use, even if this agreement was not signed by the Customer, which would in turn form a binding agreement between the Customer and Preontek.
2.3 The Customer acknowledges that Preontek is unable to exercise control over the content of the information passing over the infrastructure and the Internet, including but not limited to any websites, electronic mail transmissions, news groups or other material created or accessible over its infrastructure. Therefore, Preontek is not responsible for the content of any messages or other information transmitted over it’s infrastructure.
2.4 Preontek’s infrastructure may be used to link into other networks worldwide and the Customer agrees to conform to the acceptable use policies of these networks. The Customer may obtain and download any materials marked as available for download off the Internet but is not permitted to use it’s Internet access to distribute any copyright materials unless permission for such distribution is granted to the user by the owner of the materials.
3. Conditions of access
3.1 Preontek hereby, with effect from the effective date, grants the Customer access to the service in the terms and conditions of this agreement.
3.2 The Customer hereby acknowledges receipt of such access and agrees that:
3.2.1 The Customer may not move or sell their Customer equipment. The equipment is on a rental basis for the duration of this service agreement. Should equipment require relocation/reconfiguration, Preontek is to be contracted to perform the changes; Charge will be quotes based on site survey results;
3.2.2 the user may under NO circumstances change the IP address allocated to them by Preontek to any other IP address on the Preontek’s network. Changing the IP address will result in immediate suspension of all services to the Customer in question;
3.2.3 in the event of the Customer’s passwords being compromised, it becomes the responsibility of the Customer to contact Preontek to have their password(s) changed;
3.2.4 the Customer will not attempt to circumvent Preontek’s network in any way, including but not limited to IP “spoofing” or MAC Address Spoofing. The Customer will not attempt to gain access to any area of Preontek’s network where they do not/should not have access to.
3.3 Should the Customer fail to comply with any of the provisions hereof, the Customer agrees to pay to Preontek immediately, on demand, all costs, loss and/or damages incurred or suffered by Preontek as a result of the said breach. This may include (without being limited to) the payment of an additional Membership fee.
4. Service availability
4.1 Preontek will use reasonable endeavors to make the service available to Customers, and keep the service available to such Customers at all times. However, the Customer agrees that Preontek shall not be liable in respect of any loss or damage caused by or arising from the unavailability of, any interruption in or the use of the service for any reason whatever. This exclusion of liability of Preontek for loss or damage will include (but is not limited to):
4.1.1 losses caused by negligent acts of Preontek and any acts of Preontek’s employees;
4.1.2 any direct, consequential, incidental, indirect or special loss or damage flowing from business interruption, loss of business information, loss of data or any other cause;
4.1.3 any loss regardless of whether a claim for such loss is based on breach of contract, delict, breach of implied warranties or otherwise; and
4.1.4 any loss whether it could have been foreseen or not.
4.2 Preontek will use its best endeavors to notify the Customer of any maintenance and repairs which may result in the service being unavailable, but does not warrant or otherwise contractually undertake that such notice will be given.
5. Communication
The Customer hereby agrees that Preontek may from time to time send the Customer communications regarding (without being limited to) special offers,/discounts which Preontek may negotiate for it’s Customers, operational changes that may affect the service and/or new services launched by Preontek from time to time.
6. Payment
6.1 The Customer agrees to pay the Membership fee, which may include (without being limited to) the monthly access fee, installation fee, fees for closed user groups and fees for other services the Customer may subscribe to from time to time. Unless Preontek specifically agrees otherwise, the Membership fee will be payable monthly in advance on or before the 5th of the month.
6.2 Preontek will invoice the Customer for the Membership fee on a monthly basis via e-mail or other online medium unless another agreement has been made between Preontek and the Customer.
6.3 The Membership fee and all other amounts payable in terms hereof shall be paid free of exchange and without deduction or set-off by way of a direct debit order (drawn against a current banking account nominated by the Customer) in favour of Preontek, and in such other manner as Preontek may from time to time determine. The Customer agrees that in furnishing the Customer’s bank details, the Customer authorizes Preontek to deduct all amounts payable in terms of this agreement from the account specified. Should Preontek require the Customer to, the Customer agrees to sign all such forms and do all such things as may be necessary to give effect hereto.
6.3.1. First month’s subscription, data top ups, subscription upgrades or any additional invoices for hardware/ services – a debit order will be deducted on the first banking day of the month.
6.3.2. New activations after the 22nd of the month – the first month’s subscription will also be deducted on the 5th banking day of the following month.
6.3.3. All future monthly subscriptions – debit order will be deducted on the 2nd last banking day of every month.
6.4 Should the Customer fail to pay any amount on the due date for payment, then, without prejudice to any other rights Preontek may have:
6.4.1 Preontek shall be entitled to take all such further steps as may be necessary to recover the outstanding amount from the Customer, in which event the Customer agrees to pay all costs associated with such recovery on an attorney and own customer basis;
6.4.2 Preontek shall be entitled to, without notice, limit or suspend the Customer’s access to the service until such time as the outstanding amount has been paid in full; and/or
6.4.3 Preontek shall be entitled to terminate this agreement with immediate effect.
6.5 The Customer may not withhold payment of any amount due to Preontek in terms of this agreement by reason of any alleged breach of this agreement by Preontek, nor will the Customer be entitled to any discount, refund or other credit under any circumstances.
6.6 Uncapped services installed/ activated after the 15th of the month will be billed half a month’s subscription. Uncapped services installed/ activated before the 15th of the month will be billed a full month’s subscription. Capped services will be billed in full month’s subscriptions only, regardless of the date of installation/ activation.
7. Security
7.1 In order to ensure the security and reliable operation of the service to all Customers, Preontek hereby reserves the right to take whatever action Preontek deems necessary to preserve the security and reliability of its network.
7.2 The Customer may not utilise the service in any manner which may compromise the security of Preontek’s network or tamper with the service or the network in any manner whatsoever.
7.3 Violations of system or network security by the Customer are prohibited, and may result in civil or criminal liability. Preontek will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
7.3.1 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 Preontek;
7.3.2 unauthorised monitoring of data or traffic on the network or systems without express authorisation of Preontek;
7.3.3 interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
7.3.4 forging of any ICP-IP packet header (spoofing) or any part of the header information in an e-mail or a newsgroup posting.
8. User Etiquette and Abusive Behaviour
8.1 The Customer hereby agrees to adhere to generally acceptable Internet and e-mail etiquette. In this regard, without being limited to the examples listed below, the Customer agrees not to:
8.1.1 engage in any abuse of e-mail or spamming, including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
8.1.2 take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent the Customer’s affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service;
8.1.3 use the service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights;
8.1.4 use the service to make fraudulent offers to sell or buy products, items or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”;
8.1.5 use the service in a manner that may infringe the intellectual property rights (for example copyright or trade marks) or other proprietary rights of others, including (without being limited to) the transmission of pirated software;
8.1.6 use the service in a manner that which could damage, impair, overburden or disable the service or interfere with any other party’s use or enjoyment of the service;
8.1.7 use the service to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
8.1.8 cancel any Usenet post other than the Customer’s own;
8.1.9 repeatedly post gratuitous off the topic postings;
8.1.10 gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect personal information about third parties without their knowledge or consent; and
8.1.11 maintain mailing lists, without the express permission and approval of the list Customers (should mailing lists contain invalid or undelivered addresses or addresses of unwilling recipients, those addresses must be promptly removed);
8.1.12 violate the privacy of any person or attempt to gain unauthorized access to the service or any other network, including (without being limited to) through hacking, password miming or any other means; and/or
8.1.13 use the service to engage in any illegal or unlawful activity.
8.2. Should the Customer engage in any one or more of the above practices, which shall be determined in Preontek’s sole discretion and which decision shall be final, then Preontek shall be entitled, without prejudice to any other rights it may have, to:
8.2.1 without notice, suspend the Customer’s access to the service;
8.2.2 terminate this agreement with immediate effect; bill the Customer for any costs incurred by Preontek, including (without being limited to) bandwidth, administration costs, downtime, usage of Preontek’s name or registered domain names and CPU cycles; and/or
8.2.3 Notwithstanding Preontek’s privacy policy, disclose any information relating to the Customer, whether public or personal, to all persons affected by your actions.
8.3 Public relay occurs when a mail-server is accessed by a third party from another domain and utilized to deliver mails, without the authority or consent of the owner of the mail-server. User mail-servers must be secure against public relay as a protection to both themselves and the Internet at large. Mail-servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection, such delivery must be disallowed.
8.4 Preontek reserves the right to examine Customer’s mailservers to confirm that no mails are being sent from the mail-server through public relay and the results of such checks can, in Preontek’s sole discretion, be made available to the user.
8.5 Preontek also reserves the right to examine the mailservers of any Customers using Preontek’s mail-servers for “smart-hosting” (when the Customer relays it’s mail off a server of Preontek to a mail-server of the Customer himself) or similar services at any time to ensure that the servers are properly secured against public relay. All relay checks will be done in strict accordance with Preontek’s policy of preserving customer privacy.
8.6 Preontek further reserves the right, in addition to the rights set out in 8.2 above, to (partially or fully) limit the download speed available to any particular Customer if, in the opinion of Preontek, such Customer is abusing the system by regularly downloading large volumes of data from services such but not limited to as bit-torrent or other ‘peer to peer’ protocols, and thereby significantly limiting bandwidth available to other customers.
9. Complaints
9.1 Upon receipt of a complaint, or having become aware of an incident, Preontek reserves the right to inform the Customer’s network administrator of the incident and require the network administrator or network owner to deal with the incident according to this AUP.
9.2 Preontek shall be entitled to share information concerning the complaint received with other Internet access providers, or publish the information, and/or make available the Customer’s details to law enforcement agencies.
9.3 Any one or more of the steps listed above, insofar as they are deemed necessary by Preontek in it’s absolute and sole discretion, may be taken by Preontek against the offending party.
9.4 All cases of violation of the terms of this agreement should be reported to info@preontek.co.za.
10. Indemnity
10.1 The Customer hereby unconditionally and irrevocably indemnifies Preontek and agrees to hold Preontek free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by Preontek or instituted against Preontek as a direct or indirect result of:
10.1.1 the Customer’s use of the service;
10.1.2 installation of client premises equipment (CPE) and network cards.
10.1.3 the Customer’s failure to comply with any provision of this agreement or any other requirements which Preontek may impose from time to time; and
10.1.4 any unavailability of, or interruption in the server, as contemplated in clause 4.1 above.
11. CPE: Ownership and Risk
11.1 Preontek reserves its rights of ownership in the CPE device installed at the Customer’s premises and leases the CPE to the Customer who rents it from Preontek for the duration of this Agreement;
11.2 Preontek shall have the unfettered right to reclaim possession of the CPE on termination of this Agreement for whatever reason.
11.3 Preontek will assume responsibility, at its own cost, for the insurance of CPE installed at the Customer’s premises and for such maintenance of equipment installed as is attributable to normal wear and tear or where damage to the equipment does not result from misuse or negligence on the part of the Customer or as a result of the theft of equipment. Any other damage to Preontek equipment including: lightning, corrosion, equipment failure, malfunction or any other act of God, will only be repaired or replaced by Preontek at a cost to the Customer which will be quoted to the customer prior to replacement. The Customer agrees to provide reasonable access to Preontek personnel for repairs and replacement.
12. Breach
Should the Customer be in breach of any provision of this agreement, then Preontek shall be entitled, without prejudice to any other rights it may have and without notice to the Customer to forthwith:
12.1 claim immediate payment of all outstanding amounts payable in terms of this agreement;
12.2 suspend the Customer’s access to the services; and/or
12.3 terminate this agreement, retain all amounts already paid by the Customer and recover all costs incurred by Preontek, including (without being limited to) legal costs on an attorney and own customer basis, administrative costs and the costs of man hours lost.
13. Certificate of Indebtedness
13.1 The amount due and payable by the Customer to Preontek in terms of this agreement at any time shall be determined and proved by a certificate signed by one of Preontek’s directors, whose appointment, qualification and authority need not be proved.
13.2 Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against the Customer.
14. Cession and Delegation
14.1 The Customer may not cede any of your rights or delegate any of the Customer’s obligations under this agreement without Preontek’s express written consent.
14.2 Preontek shall be entitled, in its sole discretion and without notice to the Customer, to cede and transfer or delegate to any third party all or ay of its rights or obligations under this agreement.
15. Jurisdiction
The Customer hereby consents to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by Preontek arising out of this agreement, provided that Preontek shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the Customer consents to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.
16. Duration
This agreement will commence on the effective date and will endure for an initial continuous period of twelve months, and thereafter for an indefinite period, subject to the right of either party to terminate this agreement at any time by means of 1 (one) calendar month prior written notice to such effect to the other party. Upon termination of this agreement, any outstanding amounts remain payable and have to be settled within 30 days of termination. Should the customer at any stage during the contract wish to downgrade their connection to a smaller package, 1 (one) calendar month prior written notice is required. In the event of cancellation by the customer which is accepted by Preontek it remains the sole and exclusive responsibility of the customer to ensure that the cancellation has been effected and that no further amounts are debited from the relevant account in respect of the Preontek service. Preontek reserves the right to request proof of cancellation. Cancellations must be faxed to 086 444 0500 or emailed to info@preontek.co.za & Preontek disclaims all and any liability in respect of any cancellation not effected in this manner (and where such cancellation is not actually received).
17. General
17.1 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 relies in concluding this agreement.
17.2 The parties choose their respective domicilia citandi et executandi for the purposes of giving any notice, the serving of any process and for any other purpose arising from this agreement as follows:
17.2.1. Bakone Preon cc t/a Preontek : Unit 11B, 1 Stans Place, Palm Ridge, Alberton, 1431
17.2.2 The Customer: the address the Customer furnished to Preontek in the schedule hereto when subscribing for the service;
17.3 The Customer agrees that any notices Preontek sends to the Customer in terms of this agreement may be
17.4 No indulgence, leniency or extension of time which Preontek may grant or show to the Customer shall in any way prejudice Preontek or preclude Preontek from exercising any of it’s rights in the future.
17.5 The Customer warrants that as at the effective date, all the details furnished by the Customer to Preontek are true and correct and that the Customer will notify Preontek forthwith in the event of a change to such details.
17.6 Telephonic Support is offered to the customer, call outs will be to Preontek’s discretion and will need to booked in advance.
17.7 Internet banking and other such exchanges where information that the Customer deems valuable and private is transmitted and received should be carried out at the Customer’s own risk. Preontek does not and will not take any responsibility for the violation of a Customer’s privacy or leakage of valuable information due to their negligence. All Customers should run a highly restrictive firewall on their gateway.
18. Installation Costs
Installation costs will be requested on signature of this contract. The costs incurred will be quoted upon inspection of the site and is also based on the contract purchased. The installation cost may include the rental of the equipment from Preontek for the duration of the Customer’s service contract with Preontek. At all times the equipment remains the sole property of Preontek. All installation, including installation of network cards, is undertaken at sole risk of the customer. In the event that the customer requests the equipment to be moved, a payment of a call out fee as indicated on the quotation will charged to the customer. The move will be subject to a site evaluation at the new premises. Should the test prove negative for signal please refer to paragraph 20 of the terms and agreements
19. Virus Filtering
Preontek undertakes to filter content and scan all e-mail messages for viruses on the server side, but cannot be held liable for any virus that may slip past this line of defense. All Customers will be responsible for their own antivirus protection.
20. Signal test
The service provided by Preontek is subject to the availability of sufficient signal to the Customer’s premises which is dependant on a reasonable line-of-sight to one of Preontek’s High Sites.
21. Limitation of Liability
No withstanding the above terms, Preontek will not be liable to you or any other person/entity as regards any loss or damage caused by or arising from the interruption and/or unavailability of the services, howsoever arising. The Customer and/or any other person/entity will not have any claim, action or application against Preontek howsoever arising for direct damages, indirect damages, loss of profits and incidental, special or consequential damages and the customer hereby indemnifies and holds harmless Preontek, its officers, employees, subsidiaries, affiliates and contractors in respect of such damage or loss. The Customer acknowledges that they have read and understood these terms and conditions and agree to be bound by them.