1. Appointment
The Customer hereby appoints Altitude Sync to provide the Service/s to the Customer for the duration of this Agreement, which appointment Altitude Sync accepts, on the terms and conditions contained in this Agreement.
2. Commencement and Duration
2.1. The Agreement shall commence upon the Effective Date and shall endure until the termination date of the last of the Schedules.
2.2. The duration period of each of the Services shall be as specified in the relevant Schedules.
3. Charges and Payment
3.1. Altitude Sync shall be entitled to commence invoicing the Customer for the Costs in relation to each Service from the date that such Service is Commissioned, as set out in the Schedule concerned (”Date of Commissioning”).
3.2. When the Date of Commissioning is delayed through the fault of the Customer, Altitude Sync shall be entitled to commence invoicing the Customer for the Costs in relation to each Schedule, with effect from 60 (sixty) days after the Signature Date.
3.3. In the event of a single Service consisting of several components, Altitude Sync shall be entitled to commence invoicing the Customer for each respective component of that Service as and when each component of that Service is activated for Customer use.
3.4. Customer is responsible for and agrees to pay to Altitude Sync all Once Off Costs and Monthly Costs specified in the Cost Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
3.5. The Costs specified in the Cost Schedule exclude:
3.5.1. VAT and any other any taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement, and
3.5.2. all and any ECNS Provider fees, for which Customer agrees to make payment directly to the ECNS provider on such terms as are agreed between the ECNS provider and Customer, and shall at all times be the responsibility of the Customer. The Customer hereby indemnifies and holds Altitude Sync harmless against any claims, costs and/or damages which may be incurred by the Customer or the ECNS Provider as a result of a failure by the Customer to pay the ECNS Provider fees, or any part thereof, as the case may be.
3.6. Invoicing will be processed and delivered monthly in advance, and all invoices for Services shall be settled by the Customer, monthly within 30 (thirty) days of the date of invoice.
3.7. In the event of any dispute arising as to the amount or calculation of any Costs to which Altitude Sync is entitled in terms of this Agreement, the dispute shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on Altitude Sync and Customer. The cost of the determination shall be paid on demand by the Party against whom the determination is made, or as determined by the said auditors. However, where the provisions of the CPA are applicable to this Agreement, and do not allow for the enforcement of the above provisions this clause shall not apply.
3.8. Any amount falling due for payment by Customer to Altitude Sync in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two percent (2%) charged by Altitude Sync from time to time, monthly in arrears.
3.9. Altitude Sync shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the Monthly Costs, provided that:
3.9.1. Altitude Sync shall not be entitled to increase the Monthly Costs during the first 12 (twelve) months of this Agreement; and
3.9.2.Altitude Sync shall not increase the Monthly Costs on more than one occasion in any subsequent 12 (twelve) month period of this Agreement.
3.9.3. Should such an increase, as envisaged per sub-clause 3.7.2 above, occur after the initial 12 (twelve) month period, the Customer shall have the right to request Altitude Sync to provide proper and reasonable justification for such an increase, which Altitude Sync shall not unreasonably withhold.
3.10. Invoices will be emailed to the Customer’s designated email address (for billing purposes) indicated in the Application Form unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed.
4. Customer’s Obligations
4.1.Altitude Sync is obliged to protect its technical infrastructure against security threats and to protect the interests of its customers by ensuring that the conduct of no one customer prejudices the user experience of the other customers. Accordingly, Altitude Sync imposes certain reasonable rules relating to the Customer’s conduct while using the Services which are contained in Altitude Syncs’ Acceptable Use Policy (“AUP”) (available at http://gsol.co.za/company/policies/acceptable-use-policy). Because security threats can be fluid and acceptable usage can change, Altitude Sync may from time to time amend this AUP by publication on its website. These amendments will not materially affect the Agreement, but will merely update the limits of the Customer’s existing duty to use the Services in a safe and responsible manner.
4.2. Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
4.2.1. damages in any way Altitude Syncs’ technical infrastructure or any part thereof;
4.2.2. impedes, impairs or precludes Altitude Sync from being able to provide the Service/s in a reasonable and business-like manner;
4.2.3. constitutes an abuse or malicious misuse of the Service/s; or is calculated to have any of the abovementioned effects. In such an event, should Altitude Sync incur expenses to remedy the situation, Altitude Sync reserves the right to charge the Customer the amount necessary to cover Altitude Syncs’ additional expenditure. Notwithstanding the above, Altitude Sync reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
4.3. Customer is prohibited from selling, reselling or otherwise dealing with the Service/s which are proprietary to Altitude Sync in any manner whatsoever. Without limitation to the aforegoing, any consideration which Customer may receive whilst acting in breach of this prohibition shall be forfeited to Altitude Sync.
4.4. Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service/s through any of Customer’s Equipment, personnel and/or address.
4.5. Customer is prohibited from modifying any Equipment (including but not limited to router equipment) utilised by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such Equipment.
4.6. Customer shall at all times adhere to and ensure compliance with the Schedule/s, if applicable.
4.7. Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Altitude Sync, its servants, its agents or any other persons for whom it may be liable in law if Altitude Sync interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to Altitude Sync.
4.8. Customer may not at any time use the Service in contravention of any South African Law. Customer acknowledges that Altitude Sync has no obligation to assist Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
5. Provision of the Services by Altitude Sync
5.1. To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against Altitude Sync, is to require Altitude Sync to remedy the defect in the quality of the Services performed.
5.2. If Altitude Sync has supplied Equipment to enable the Customer to utilise the Services in the circumstances set out in clause 6.1, defects in the Equipment will be dealt with as described in clause 7.
6. Returns and Refunds
6.1. If the provisions of the CPA are applicable to this Agreement, to the extent that Equipment is supplied to a Customer, the Equipment is warranted in respect of quality, suitability and durability for a period of 6 (six) months of the Effective Date in respect of the Equipment concerned. Provided the Customer is not in breach of the Agreement, Customer may within this period return the Equipment to Altitude Sync without penalty if the Equipment fails to satisfy the requirements and standards contemplated and Altitude Sync shall repair or replace the failed, unsafe or defective Equipment.
6.2. If Customer elects to enforce the provisions of clause 7.1 and, within 3 (three) months of any repair undertaken by Altitude Sync, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered by Customer, Altitude Sync shall, in its sole and absolute discretion:
6.2.1. replace the Equipment; or
6.2.2. refund to Customer the Once Off Cost applicable thereto.
7. Warranties
7.1. Altitude Sync warrants and represents that:
7.1.1 it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
7.1.2 it is the owner of or has the right to use under licence any intellectual property employed by it during or as part of the Services;
7.1.3 it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
7.1.4 the Services shall be performed in compliance with South African Law;
7.1.5 the Services shall be provided in accordance with the provisions of this Agreement;
7.1.6 the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with the highest standard of its industry.
7.2 Save as expressly set out in clauses 6, 7 or 8.1 above, Altitude Sync does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
7.3 Altitude Sync does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
7.3.1 will be preserved or sustained in its entirety;
7.3.2 will be delivered to any or all of the intended recipients; or
7.3.3 will be suitable for any purpose;
7.3.4 will be free of inaccuracies or defects or bugs or viruses of any kind; or
7.3.5 will be secured against intrusion by unauthorised third parties; and Altitude Sync assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 8.
8. Risk and Ownership
8.1 All rights of ownership in and to any Equipment:
8.1.1 supplied by Altitude Sync on a loan or rental basis, shall remain vested in Altitude Sync;
8.1.2 acquired by the Customer from Altitude Sync either free of charge or at a subsidised price shall remain vested in Altitude Sync for the duration of the Initial Period of the Schedule in terms of which it is supplied; and
8.1.3 acquired at Altitude Sync” listed price shall remain vested in Altitude Sync until the Customer has made payment therefor in full to Altitude Sync.
8.2 All risk in and to the Equipment shall pass to the Customer on delivery thereof at the premises of the Customer. Upon the signature of a proof of delivery by the Customer, the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
8.3 In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after the signature of a proof of delivery, the Customer shall be obliged to replace and/or repair or to pay to Altitude Sync the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
8.4 The Customer undertakes:
8.4.1 to display in relation to the Equipment no lesser degree of care than it would have if the Equipment belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;
8.4.2 not, in any manner, to alienate, encumber or otherwise dispose of the Equipment;
8.4.3 not to procure repair or maintenance of the Equipment by any third party without the prior written consent of Altitude Sync (which shall not be unreasonably withheld) or in any other manner tamper with the Equipment.
9. On-site Support
9.1 A call-out fee (of R750, subject review) applies for any on-site support required after the initial installation where Altitude Sync or its agent was not at fault
9.2 the Customer shall bear the risk of damage to, or loss of, Terminal Equipment installed at their premises and shall be liable to pay to Altitude Sync on presentation of invoice the reasonable cost of repair of Terminal Equipment or, if repair is not feasible, the actual replacement cost
9.3 if repairs or replacements have to be done on Terminal Equipment that is not covered under manufacturer’s warranty or that has been damaged by anybody other than Altitude Sync or its agent, then in addition to the paragraph above,Altitude Sync shall charge its full installation rate for the call-out to repair/replace faulty Terminal Equipment.
10. Limitation of Liability
10.1 Altitude Sync shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising whereAltitude Syncs’ failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
10.1.1 the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement; or
10.1.2 circumstances that constitute an event of force majeure as contemplated in clause 17 hereof; or
10.1.3 all telecommunications infrastructure and communication line faults; or
10.1.4 failure or unreasonable delay by the Customer to report faults/problems to Altitude Sync; or
10.1.5 the failure of any hardware, software program, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which Altitude Sync relies to provide the Service/s.
10.2 Altitude Sync shall not be responsible for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising if such loss is caused by any defect or failure in the Equipment due to:
10.2.1 compliance by Altitude Sync with any applicable legislation; and/or
10.2.2 any alteration to the Software and Equipment by the Customer; and/or
10.2.3 any defect and/or hazard in any third-party equipment required by the Customer to be used in the provision of the Services.
10.3 In addition to 10.1 and 10.2 above, and to the extent permitted by South African Law, Altitude Sync shall not be responsible for indirect or consequential damages or loss (including but not limited to loss of data, profits and goodwill) of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
10.4 The Customer shall indemnify and hold Altitude Sync and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 10.2 above.
10.5 Subject to clause 10.1 – 10.3 above, the entire liability of Altitude Sync and Customer’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 12 (twelve) months preceding Customer’s written notice to Altitude Sync in respect of such claim.
10.6 Customer hereby indemnifies Altitude Sync against and holds Altitude Sync harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of Altitude Sync is excluded in terms of clause 10.1 – 10.3 above.
10.7 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of Altitude Sync of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
10.8 Notwithstanding anything to the contrary contained in this Agreement, Altitude Sync reserves the right in its absolute discretion and after the receipt by Altitude Sync of any take-down notice in terms of the Electronic Communications and Transactions Act 25, 2002 or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of Altitude Syncs’ intention to remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, Altitude Sync shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by Altitude Sync shall in no way constitute a breach by Altitude Sync of this Agreement.
11. Documentation
11.1 Any specifications, descriptive matter, drawings and other documents which may be furnished by Altitude Sync to Customer from time to time:
11.1.1 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement by way of a Schedule;
11.1.2 shall remain the property of Altitude Sync and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in Altitude Sync. Such documents shall be returned to Altitude Sync on demand.
12. Breach
12.1 If either party hereto:
12.1.1 breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from the non-breaching party;
12.1.2 commits any act of insolvency;
12.1.3 endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the non-breaching party’s’ rights hereunder or at all;
12.1.4 allows any judgement against it, in excess of R1 ,000.000.00 (One Million Rand), to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
12.1.5 is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered;
the other party shall have the right, as and where applicable without prejudice to any other right which it may have against the breaching party, to:
- a) suspend or terminate the Services;
- b) in the case of Altitude Sync, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until Customer has remedied the breach; and/or
- c) cancel this Agreement;
in any event without prejudice to the non-breaching party’s’ right to claim damages. The right of either party to suspend or terminate the Services as a result of breach shall apply throughout the duration of the Agreement, both within the Initial Period and thereafter.
12.2 The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
12.3 Subject to what is set out in Clause 12.1 above, Altitude Sync shall be entitled to suspend the provision of the Services where Customer breaches any provision of this Agreement or where any payment to Altitude Sync is overdue by more than 30 (thirty) days.
12.4 If the provisions of the CPA are applicable to this Agreement, the above sub-clauses shall operate as follows:
12.4.1 The Parties will be required to give 20 business days’ notice to the other of any of the circumstances set out in clause 12.1;
12.4.2 Clause 11.1(b) shall not be applicable and in such circumstances Altitude Sync shall be entitled to payment by Customer of no less than 80% (Eighty Percent) of the remaining amounts due and payable over the unexpired period of the Agreement.
12.4.3 In the case of lapsed long-term contracts wherein they automatically convert to the month-to-month term, or where product and service specific terms and conditions are not specified, a calendar month’s notice is required for service cancellation.
13. Intellectual Property
13.1 Notwithstanding anything set out in clause 13 below, all intellectual property rights in and to the Software (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to Altitude Sync. Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by Altitude Sync, or any of its third-party suppliers.
13.2 Customer warrants that it shall not use the Service/s to produce, host or present any content in contravention of any person’s intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party’s intellectual property rights. Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to 3rd parties.
13.3 Customer hereby indemnifies and holds Altitude Sync and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party made arising out of the provisions of clauses 12.1 and 12.2
Introduction
- Thank you for taking the time to review our Privacy Policy. At times, Altitude Sync will collect certain personal information about customers and visitors to websites hosted by us. Such information will include both identifiable personal data, as well as non-identifiable personal information. Identifiable personal information will be collected when you sign a contract for service with us, or use our website for a transaction or subscription service. Non-identifiable information is gathered automatically when you visit our website or those websites hosted by us, and stored for use in our system.
- The purpose of this privacy policy is to explain to customers what types of information we will collect and how that information is used. In most cases, we collect this information to ensure network integrity and that we continue to provide you with the most relevant content and best possible service that suits your needs. In some cases, we are required by law to collect personal information about customers. Except where the law requires otherwise, we undertake to protect the confidentiality of such data.
Confidentiality
- Altitude Sync respects customer privacy and the privacy of those accessing our website, or those websites hosted by us. We undertake to protect the confidentiality of our customers and users including all personal information supplied in the course of contracting with us for services. We undertake not to sell your personal information to third parties for commercial or marketing purposes.
Collection of Personal Data
- Altitude Sync collects personal data about our users when you visit a website hosted by us; apply for a service subscription; respond to a customer questionnaire; and through the use of cookie technology. We may also combine information about you that we have with information we obtain from our business partners or affiliates.
** A cookie is a data file that sits on your computer hardisk. The cookie is placed there by a remote web server that you have visited using a browser like Netscape or Internet Explorer. It is used to uniquely identify you during web interactions with a website and contains data parameters that allow the remote HTML server to keep a record of who you are, and what actions you take at the remote web site. You have the option to disable the cookie function in your browser, but will be restricted from accessing many sites as a result.
Use of Personal Data
- Altitude Sync may on occasion use your personal information to contact you about promotional offers; advise you of matters relevant to service provision and in some cases, solicit your feedback. However, Altitude Sync will provide you with an option within every communication to opt out of receiving any communications of this nature or you can contact our customer services representatives to ensure that you do not receive such promotional information, at +27-21-812-1500.
- Altitude Sync may log the websites you visit; collect IP addresses and information about your operating system and the type of browser you use for the purposes of network/system administration; to report aggregate information to our advertisers, and to audit the use of our site. This data however will not be used to identify individual users who will at all times remain anonymous.
- Any information Altitude Sync collects from you through correspondence with us, whether via e-mail, telephonically or by written letter, will only be used to address the matters within that correspondence. If this requires referring such correspondence within Altitude Sync or to a third party to ensure customer service, your personal information will only be disclosed to the point necessary to address your query or concerns, and will otherwise be kept confidential.
Public Space (Bulletin Boards, Chat Rooms and Third-Party Sites)
- Any information that customers disclose in a public space, including on any bulletin board, chat room or any site Altitude Sync may host for you, is available to anyone else who visits that space. Altitude Sync cannot safeguard any information you disclose there.
Site Linking
- Altitude Sync” websites contain many links to sites that belong to third parties unrelated to us. Altitude Sync cannot be held responsible for any use of your personal information arising from you disclosing personal such information on third party sites. Altitude Sync cannot protect any information you may disclose on these sites and recommends that you review the privacy policy statements of those sites you visit.
Minors
- Altitude Sync will not enter into a service subscription contract with a minor unless such minor has explicit written consent from a parent or guardian to do so. Altitude Sync undertakes not to contact minors about promotional offers or for marketing purposes without a parental consent. [If you include this, you may want to ensure that this is covered in your subscription terms as well.]
Reservation of Rights
- Altitude Sync reserves the right to disclose information about customers where required in good faith, to do so by law or to exercise our legal rights or defend ourselves against legal claims.
- Altitude Sync reserves our rights to disclose your personal information where you have given us explicit legal written consent to do so.
- Altitude Sync reserves the right to monitor user and network traffic for site security purposes and prevent any unauthorized attempts to tamper with our site or cause damage to our property.
- Altitude Sync reserves the right to make changes to this privacy policy or update it. Where a major change is made, customers will be informed by e-mail notification or through a notice on our website. Customers and site visitors bear the responsibility to ensure that they have read the changes or updates as the case may be.
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