MASTER SERVICES AGREEMENT
Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
“AFSA” means the Arbitration Foundation of Southern Africa.
“Agreement” means this Master Services agreement, including all Annexures hereto, and any Service Confirmation Schedule executed pursuant to the terms of this Agreement.
“Customer” means the end user subscribing to any Skyworks Wireless service or product.
“Charges” shall mean all charges and/or fees payable by the Customer to Skyworks for the Services.
“Confidential Information” means any information or data which by its nature or content is identifiable as confidential and/or proprietary to a Party and/or any third party, or which is provided or disclosed in confidence.
“Customer Equipment” means customer premises equipment (modems, routers etc), or any networks or network equipment not owned or controlled by Skyworks. “Documentation” means the documentation supplied by
Skyworks to the Customer.
“Effective date” means the date of signature on which the Customer agrees to these terms and conditions.
“ECA” means the Electronic Communications Act 36 of 2006, as amended from time to time.
“Customer Premises” shall mean the location or locations occupied by the Customer to which the Services are delivered as specified in the SCS. “Facilities” shall mean any property owned, licensed or leased by Skyworks,
including points of presence (“POP”), but does not include Customer Equipment, and used to deliver the Services.
“Force Majeure Event” means any circumstances beyond the Parties’ reasonable control including, without limitation, war, national emergency, civil disturbance, theft,
fire, flood, explosion, natural disaster, unusually severe weather conditions, prohibitive legislation or regulations and failure of power or utility supplies (including electronic communications);
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trademark, or copyright material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property, which specifically includes all copyright, design rights and any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;
“MRC” means monthly recurring cost as set out in the applicable Order Form.
“Skyworks” means Skyworks Telecoms CC (Close Corporation), a company duly registered under the company laws of the Republic of the South Africa with Registration Number 2008/116497/23 and having its principal place of business at Shop 7C, 1st Floor, Entrance 6, Financial Square, Mandela Drive, Witbank, South Africa.
“Skyworks Equipment” means any Skyworks equipment or products, including any Facilities, or any other equipment or products which are supplied to the Customer by Skyworks (for use in conjunction with the Services).
“Service Confirmation Schedule or SCS” means a schedule signed by both Parties in confirmation that the service ordered has been implemented and completed and the necessary tests have been executed, and the customer accepts this as the formal handover document;
“Service request Form” shall mean a request for the Services submitted by Customer to Skyworks in a form prescribed by Skyworks.
“Party” means either of the signatories to this Agreement and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns.
“Prime Rate” means the prime rate published by Skyworks’s principle bankers, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove.
“Services” means the services provided by Skyworks to the Customer as more fully described in the Service Confirmation Schedule, including the provision of Skyworks Equipment and Facilities.
“Service Activation Date” means the service activation date set forth in the Service Confirmation Schedule or the date that the Services commence, whichever is the earlier.
“Service Levels” means the specific performance levels applicable to the provision of the Services.
“Service Term” means the time period, including periods of renewal, specified in each Service Confirmation Schedule during which the Services specified therein are to be provided.
“Territory” means Republic of South Africa.
“VAT” means value-added tax, chargeable under the VAT Act of 1991. “Degradation” means the presence of anomalies or defects in the absence of a fault.
“Degraded Service” means the presence of anomalies or defects that cause a degradation in QoS, but do not result in total failure of the service.
“Incident” means a fault that directly affects the Service levels by substantially or completely reducing them. This excludes any faulty Customer equipment. ‘MTTRs’ (Mean Time to Respond) means the average time from when the ticket is
logged with the Skyworks to the time a Skyworks Support Representative attends to the incident or trouble ticket.
“MTRS” (Mean Time to Restore Service) means average time from the first detection or reporting of service interruption to Skyworks by the Customer until the time when the service is restored.
“Network Unavailability” means the time where the service is unavailable or degraded to such an extent that it is unusable, measured from the first detection or reporting of service interruption to Skyworks by the Customer until the time when the service is restored and excluding any service interruption outside of Skyworks’s contracted services supplied to the Reseller.
Network Unavailability will not include Scheduled Maintenance/Emergency Maintenance or any unavailability resulting from (a) any local loop provider, (b) Reseller’s applications, equipment or facilities, (c) acts or omissions of Customer or any use of the service authorised by Reseller, (d) reasons of Force Majeure, or (e) power loss and/or interruptions at the Customer Premises.
“NNI” means Network to Network Interface between distinct MEN operated by one or more carriers.
“Off-Net Services” means those Services provided at any Customer or End User premises that are not on Skyworks’s electronic communications network and where an infrastructure build will be required to connect the Customer and/or End User to Skyworks’s electronic communications network.
“On-Net Services” means those Services provided at Customer or End User premises that are on Skyworks’s electronic communications network.
“QoS” means quality of service
“SLA” means service level agreement.
“UNI” means the physical interface or port that is the demarcation between the Customer and the service provider (Skyworks).
“Uptime” means total number of available minutes in a calendar month. “AUP” means an Acceptable Use Policy.
“Broadband Access Service” means the wireless broadband access service provided by Skyworks to the user using Fibre, WIFI, WiMAX or other relevant technologies.
In this Agreement:
headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation.
a natural person includes a juristic person and vice versa; the singular includes the plural and vice versa; and a Party includes a reference to that Party’s successors in title and assigns allowed at law.
Any reference in this Agreement to:
“Business hours” shall be construed as being the hours between 08h30 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time.
“days” shall be construed as calendar days unless qualified by the word “business“, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
“person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality; and
“writing” means legible writing and in English and excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
The words “include” and “including” mean “include without limitation” and “including without limitation“. The use of the words “includes” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
Terms, other than those defined in this agreement, will be given their plain English meaning, and those acronyms and phrases known in the information technology and telecommunications industries will be interpreted in accordance with their general accepted meanings.
Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulation alter) who is not a Party to this Agreement.
“CPE” means Customer Premises Equipment means radio antenna, masts, brackets, cabling, indoor wireless routers, and associated equipment installed the customers premises to allow access to the Skyworks Wireless network.
2. COMMENCEMENT AND DURATION
- Skyworks Wireless will carry out a site survey to confirm if delivery of services is available, should services not be possible this agreement will become null and void with immediate effect.
- This Agreement shall come into effect on the Effective Date from when the SCS was signed and shall continue in force for an indefinite period unless terminated by either Party in accordance with its terms.
- The initial term of each Services Confirmation Schedule shall commence on the Service Activation Date and shall expire on the date set forth in the applicable Service Confirmation Schedule (“Initial Service Term”). After the expiry of the Initial Service Term, the Service Confirmation Schedule shall automatically renew on a month-to-month basis unless terminated by either Party on thirty (30) days’ written notice.
- Notwithstanding the termination of this Agreement, each Service Confirmation Schedule shall remain in force until termination thereof and shall remain subject to the terms of this Agreement.
- Customers that have chosen the monthly contract term option are bound for an initial 90day period, after which the contract term will reset to a 30day notice period.
- Customers that have chosen the 24-month contract term option are bound for a period of 24months, after which the contract term will reset to a 30day notice period.
- If a customer relocates to a location where Skyworks Wireless is unable to provide services, they will be not held liable for the duration of the contract term selected. 30 days’ notice will be required together with proof of the new address.
3. SKYWORKS OBLIGATIONS
- SKYWORKS shall make the Services available to the Customer as specified in each Service Confirmation
- SKYWORKS agree to implement, follow up and support Services, as the Parties deem appropriate under the circumstances in order to foster a satisfactory business relationship between Skyworks and the Customer.
- SKYWORKS shall inform the Customer about new developments and modifications to the Services or required equipment.
- In terms of the SKYWORKS Equipment necessary to provide the Service, where required and such equipment will always remain property of SKYWORKS.
- SKYWORKS shall ensure that the equipment and, in the event where the equipment consist of more than one component, that each component shall be delivered for installation only at the Customer Location on or before the estimated delivery date.
- SKYWORKS shall ensure that all equipment shall be installed at the Customer location in accordance with the manufacturer’s specifications at SKYWORKS’s standard rates.
- SKYWORKS shall be responsible for support services to the Customer as set out in the Service Level Agreement.
4. CUSTOMER ORDER PROCEDURE
- The Customer shall order new Services or change existing Services by submitting a new Service Confirmation Schedule (SCS) to SKYWORKS specifying the new and/or changed Services required.
- SKYWORKS will submit an SCS to the customer acknowledging acceptance of the signed quotation/order and is thereby obliged to provide the requested services.
- SKYWORKS shall be entitled to request, on receipt of a Service Request Form and prior to the issuing of the SCS in terms of clause 4.2, information related to the Customer’s creditworthiness. For the avoidance of doubt the Parties agree that SKYWORKS is authorised to conduct all reasonable credit checks and searches.
- Each SCS shall create, subject to the terms and conditions of this Agreement, an individual contractual relationship between the Parties for the provision of the Services for the duration of the applicable Service Term. The provisions of the SCS, once signed by the Customer, shall prevail over the terms and conditions of this Agreement to the extent that there is any conflict between the provisions of the SCS and this Agreement.
5. CONNECTION AND SERVICE COMMENCEMENT
- SKYWORKS shall use best effort to ensure that the Services are made available to the Customer on the Service Activation Date and shall promptly inform the Customer of any delay in meeting the Service Activation Date.
- Notwithstanding anything in this Agreement, the Services shall only commence on the Service Activation Date and there will be no obligation on SKYWORKS to commence provision of the Services prior to the Service Activation Date.
- The Customer shall notify SKYWORKS of any problems with the Services within forty eight (48) hours of the Service Activation Date, failing which, the Services shall be deemed to be accepted by the Customer. In the event that the Customer notifies SKYWORKS of a problem regarding the Services within the specified time period in this clause 5.3, SKYWORKS shall rectify such problem within a reasonable period of time.
- With regards to a microwave link, reception of the service is dependent online of Site and until a signal strength test can be performed reception can in no way be guaranteed.
6. ACCESS TO THE CUSTOMER AND/OR CUSTOMER PREMISES/AND CUSTOMER PREMESIS EQUIPMENT
- The Customer shall provide SKYWORKS with reasonable access to the Customer Premises to enable SKYWORKS to exercise its rights and fulfil its
obligations under this Agreement, subject only to the Customer’s reasonable security policies.
- The Customer shall remain responsible for providing and maintaining the Customer premises at its own expense. In the event that the Customer fails to maintain the Premises, the Customer shall reimburse SKYWORKS for the any costs incurred to repair or replace any SKYWORKS Equipment and/or Facilities damaged or destroyed as a result of the Customer failure to maintain the premises.
- SKYWORKS restricts access to all “CPE” equipment, any change requests shall be requested via the SKYWORKS Help desk.
- All CPE equipment remains property of SKYWORKS.
- The customer hereby gives Skyworks permission to install equipment and cabling in his premises, furthermore the customer agrees that necessary permission from the relevant bodies and landowners have been obtained and Skyworks will not be held liable for any claim, loss, or damage due to this installation or its related activities.
7. ACCEPTABLE USE OF NETWORK AND SERVICES
- The Customer is solely responsible for ensuring that Customer uses the Services lawfully and that the Customer complies with all applicable laws and with
SKYWORKS’s Acceptable Use Policy published on www.skyworks.co.za
- The Customer indemnifies SKYWORKS and holds it harmless against any claims: arising from a breach of this clause 7; and/or by third parties in respect of prohibited or unlawful activities conducted by the Customer or its Customers.
- The Customer shall not take any steps or fail to take any steps which directly or indirectly: rearrange, disconnect, remove, attempt to repair, or otherwise tamper with the Services, without the prior written consent of SKYWORKS;
damage SKYWORKS’s network (or any networks interconnected to SKYWORKS) or any part thereof.
cause SKYWORKS to breach any of its license terms or any provision of applicable legislation.
cause the imposition of any lien or encumbrance on the Facilities and/or SKYWORKS Equipment.
constitutes an abuse of the Services (in the reasonable opinion of SKYWORKS).
- To help ensure that all customers have fair and equal use of the service and to protect the integrity of its network, SKYWORKS reserves the right, and will take necessary steps, to prevent improper or excessive usage. The action that SKYWORKS may take includes, but is not limited to:
Shaping throughput, preventing, or limiting service through specific ports or communication protocols, irrespective of usage.
Limiting throughput, preventing, or limiting service through specific ports or communication protocols in the case of excessive usage; and
A complete termination of service to customers with improper usage.
- This policy applies to and will be enforced for both intended as well as unintended (e.g., viruses, worms, malicious code, or otherwise unknown causes) excessive and/or prohibited usage.
- Online activity will be subject to the available bandwidth, data storage and other limitations of the Broadband access service, which SKYWORKS may, from time to time, revise at its own discretion and without prior notice to the customer.
- Users may not engage in any activity that compromises or threatens SKYWORKS’s ability to provide the Broadband access service in a reasonable and efficient manner to all other users.
- Examples of restricted use include, but are not limited to, running systems and servers that generate excessive number of packets or throughput at a constant rate that will cause degradation of the SKYWORKS network.
- The Broadband access service may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
- Violations of system or network security are prohibited and may result in criminal and civil liability. SKYWORKS will investigate incidents involving such violations and may involve, or will cooperate with, law enforcement agencies if a criminal violation is suspected.
- Examples of system or network security violations include, without limitation, the following:
Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.
Unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network.
Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
Knowingly distribute computer viruses or other malicious computer programs.
The infringement of other’s intellectual property rights or the breaching of any laws or infringement of any third-party rights, including without limitation, copyright.
- SKYWORKS reserves the right to implement technical mechanisms which prevent usage patterns in violation of this AUP. SKYWORKS further reserves the right to take such action as may be necessary to protect the integrity of the system, including, but not limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
- Nothing contained in this policy shall be construed to limit SKYWORKS’s rights or remedies in any way with respect to any of the foregoing activities, and SKYWORKS reserves the right to take any actions that it may deem appropriate with respect to such activities, including without limitation: investigating suspected violations of this AUP, taking action to recover the costs and expenses of identifying offenders and terminating their access to and use of the Broadband access service, and levying cancellation charges to cover Skyworks’s costs in the event of termination of access to the Broadband access service. In addition, SKYWORKS reserves all available rights and remedies with respect to such activities at law or in equity.
- This AUP may be clarified or modified periodically and SKYWORKS reserves the right to modify this policy at any time, which changes shall become effective as soon as they are posted to the SKYWORKS website.
8. DATA USAGE AND NETWORK POLICY
- The user acknowledges that SKYWORKS is unable to exercise control over the data 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, SKYWORKS is not responsible for data transmitted over its infrastructure.
- SKYWORKS infrastructure may be used to link into other networks worldwide and the user agrees to conform to the acceptable use policies of these networks.
- Users of the SKYWORKS network include not only the SKYWORKS customers, but in the case of resellers of the SKYWORKS services, the customers of the resellers too.
- Resellers of SKYWORKS services are responsible for the activities of their customers.
- The user may obtain and download any materials marked as available for download off the Internet, but is not permitted to use their Internet access to distribute any copyrighted materials unless the owner of the materials grants permission for such distribution to the user.
- The user is prohibited from obtaining, disseminating or facilitating over SKYWORKS network any unlawful materials, including but not limited to:
- Copying or dealing in intellectual property without authorisation
- Child pornography, and/or
- Any unlawful hate-speech materials
- To help ensure that all customers have fair and equal use of the network to all subscribers, Online activity will be subject to the available bandwidth, data storage and other limitations of the service provided, which SKYWORKS may, from time to time, revise at its own discretion and without prior notice to the customer.
- All services are uncapped, and no maximum amount of download or upload is applicable.
- This service is a best effort service with no maximum or minimum speed guarantee.
- Quality of Service is active on the network and certain protocols (p2p, file sharing) will take lower preference and SKYWORKS reserves the right to limit the customers connection when it sees fit.
- The sharing of SKYWORKS connection between persons outside of a household or business and the sharing of usernames is prohibited.
- Shaped accounts are subject to limitation of all peer to peer traffic such as torrents, kazaa etc during peak hours and as required by SKYWORKS Unshaped & Business accounts are not subject to shaping but are subject to QOS where required.
- Due to the nature of radio signals various factors man-made and natural can degrade or affect the performance of your signal. Whilst all measures are taken to provide the best possible signal SKYWORKS can in no way be held responsible for degraded performance of your connection due to these or other factors.
9. SYSTEM AND NETWORK SECURITY
- All references to systems and networks under this section include the Internet (and all those systems and/or networks to which user are granted access through SKYWORKS and include but is not limited to the infrastructure of SKYWORKS itself.
- The user may not circumvent user authentication or security of any host, device, network, or account (referred to as “cracking” or “hacking”), nor interfere with service to any user, host, device, or network (referred to as “denial of service attacks”). The host, device, network or account shall also not be used for any illegal purpose, including phishing.
- Violations of system or network security by the user are prohibited and may result in civil or criminal liability. SKYWORKS will investigate incidents involving such violations and will involve and co-operate with law enforcement officials if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
- 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 SKYWORKS.
- Unauthorised monitoring of data or traffic on the network or systems without express authorisation of SKYWORKS.
- Interference with service to any user, device, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks
- Forging of any TCP-IP packet header (spoofing) or any part of the header information in an email or a newsgroup posting.
- The User acknowledges that SKYWORKS is lawfully required to intercept communications in accordance with the provisions of the Regulation of Interception and Provision of Communication- related Information Act 70 of 2003 (“the Act”). Any interception of communications shall be strictly in accordance with the requirements of the Act, as and when required under the Act.
11. MANAGING ABUSE
- Upon receipt of a complaint, or having become aware of an incident, SKYWORKS reserves the right to:
- Inform the user’s network administrator of the incident and require the network administrator or network owner to deal with the incident according to any and all relevant clauses in the Terms and conditions of this Master Service Agreement, and in particular, clauses 7. ACCEPTABLE USE OF NETWORK AND SERVICES and clause 8. DATA USAGE AND NETWORK POLICY.
- In the case of individual users suspend the user’s account and withdraw the user’s network access privileges completely.
- Charge the offending parties for administrative costs as well as for machine and human time lost due to the incident.
- In severe cases suspend access of the user’s entire network until abuse can be prevented by appropriate means.
- Take such action as may be necessary to protect the integrity of the system, including, but not being limited to, system monitoring, as well as protocol management and shutting down of ports affected by viruses, worms or other malicious code.
- Implement appropriate technical mechanisms to prevent usage patterns that violate this AUP
Share information concerning the incident with other Internet access providers, or publish the information, and/or make available the users’ details to law enforcement agencies.
- SKYWORKS may take any one or more of the steps listed above, insofar as SKYWORKS deems them necessary in its absolute and sole discretion, against the offending party.
12. LAWS AND LEGISLATION
- SKYWORKS infrastructure may be used only for lawful purposes. Users may not violate any applicable laws or regulations of South Africa within the territory of South Africa. Should the user reside outside of South Africa, the laws of the country in which the user resides shall apply.
- Transmission, distribution, or storage of any material on or through the infrastructure in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
- The User undertakes to use Skyworks services in accordance with any restrictions imposed under the following legislation:
- Electronic Communications and Transactions Act 25 of 2002
- Electronic Communications Act 36 of 2005
- Films and Publications Act 65 of 1996 (as amended)
- Regulation of Interception and Provision of Communication-related Information Act 70 of 2003
13. LEGAL RIGHTS
- Nothing contained in this policy shall be construed to limit SKYWORKS’ rights or remedies in any way with respect to any of the aforementioned activities, and SKYWORKS reserves the right to take any action that it may deem appropriate with respect to such activities, including without limitation:
- Investigating suspected violations of this FUP.
- Taking action to recover costs and expenses incurred in identifying and resolving abuse.
- Terminating users’ access to and use of the SKYWORKS service.
- Levying cancellation charges to cover SKYWORKS costs in the event of termination of the SKYWORKS service.
- In addition, SKYWORKS reserves all available rights and remedies with respect to such activities at law or in equity.
- This policy forms part of SKYWORKS standard terms and conditions of service.
- This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no warranty, undertaking, representation, term or condition relating to the subject matter of this Agreement (not incorporated in this Agreement) shall be binding on either of the Parties. This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
- No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
- No waiver, suspension, or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
- Any provision or clause of this Agreement which is or becomes unenforceable for any other reason whatsoever, shall (only and only to the extent that it is so unenforceable) be treated as pro non script and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
- The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
- Neither this Agreement nor any rights or obligations hereunder may be ceded, delegated, or assigned by the Customer without the prior written consent of SKYWORKS.
15. SUSPENSION OF SERVICES
- SKYWORKS may lawfully suspend, withdraw all or part of any Service at any time until further notice to the Customer if, in SKYWORKS’s reasonable discretion:
- the continued provision of the Services will cause SKYWORKS to breach an applicable law or be in contravention of its Licenses.
- the Customer is in breach of or otherwise is not complying with any of the provisions of this Agreement; and
- Any overdue tax invoice for charges billed by SKYWORKS to the Customer remains unpaid for longer than 7 (seven) days.
- The exercise of SKYWORKS’s right to suspend the Services under this clause 15 is without prejudice to any other remedy available to SKYWORKS under this Agreement and does not constitute a waiver of SKYWORKS’s right to subsequently terminate the Agreement.
- Where SKYWORKS has suspended the Services in terms of clause 15.1, SKYWORKS may:
- refuse to reconnect the Services unless precluded by any law or order of court; and
- if it agrees to reconnect the Services, require the Customer to pay a reconnection fee in advance as a pre-condition to making the Services available again.
16. FEES AND CHARGES
- All payments payable by the Customer in terms of each SCS shall be paid in full without deduction or demand, free of exchange, to SKYWORKS, and the Customer shall not be entitled to withhold any part of such payments or to make anything but the full payments due to SKYWORKS in terms of each SCS.
- SKYWORKS shall be entitled to adjust the fees and Charges as a result of any regulatory, economical, or government-imposed factors that impact on such fees and Charges by means of 30days notice.
- The rates payable by the Customer to SKYWORKS as set out in each SCS hereof shall escalate annually on the annual anniversary date of the Service Commencement Date of the SCS to such rates as may be agreed between the Parties.
- Failing mutual agreement, then the rates payable for the following twelve-month period shall escalate by a maximum factor of the increase in the CPI during the immediately preceding twelve months plus 3% (three per centum).
16.4 Any charges incurred by SKYWORKS in the provision of the Service/s will be increased when increases are applied by the suppliers of these services and
products to SKYWORKS, notification will be provided in writing within 14 days of SKYWORKS being made aware of any pending increases.
- Invoices rendered by SKYWORKS in respect of the Services shall be rendered monthly in advance, except for Charges that are dependent upon usage of the Services, which shall be billed in arrears.
- Billing for partial months shall be pro-rated based on a calendar month.
- All invoices are due payable within seven (7) days after the date of invoice.
- If payment is not received by SKYWORKS for any reason whatsoever by the due date for payment, then the Customer shall be liable to pay to SKYWORKS (and without prejudice to any other right or remedy of SKYWORKS) any resulting bank or other charges incurred by SKYWORKS consequent thereupon; and
- Any associated reasonable administrative charges including interest that has accrued on the unpaid amount up until the amount (as provided for in clause 17.1 has been received by SKYWORKS.
- If any amount is overdue, the Customer shall pay interest on the overdue amount at prime rate plus 2% (two percent), such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).
- All Charges for the Services are exclusive of applicable taxes.
- Except for taxes based on SKYWORKS Net income, the Customer will be responsible for all applicable taxes.
- All VAT is payable upon receipt of a valid VAT invoice.
- In the event of any dispute arising as to the amount or calculation of any fee or Charge which is payable by Customer.
- the dispute shall first be referred to the Financial Directors of the Parties.
- Should the dispute not be resolved within 7 working days, then the matter shall be referred for determination to independent auditors.
- They shall act as experts and their decision shall be final and binding on SKYWORKS and Customer.
- The Party at fault, as determined by the independent auditors, shall make payment towards the expenses for the engagement of the independent auditors’ services.
- Payments shall be made by means of a monthly debit order on at the end of each month unless agreed in writing by SKYWORKS management.
18. SERVICE LEVELS AND MAINTENANCE
- The SCS shall set forth the service levels specifically applicable to the Services ordered by the Customer.
- SKYWORKS is committed to providing a reliable, high quality network to support its services offered. Accordingly, SKYWORKS offers the following guarantees: Network Response Times Guarantee – 8 hours response during working days.
- Response Time – this is the time taken for SKYWORKS to respond (acknowledge) that there is a fault on the Network. If possible, SKYWORKS will inform the Customer of the Network failure and give estimated times for the Network to be restored.
- SKYWORKS shall conduct scheduled maintenance in respect of the Services in such a manner that it does not cause unreasonable outage or interruption of the Services.
- In the event that scheduled maintenance requires a Service interruption or outage, SKYWORKS shall exercise commercially reasonable efforts to:
- provide Customer with seven (7) days’ prior written notice of such scheduled maintenance.
- work with Customer in good faith to attempt to minimize any disruption in Customer’s services that may be caused by such scheduled maintenance; and
- perform such scheduled maintenance during the non- peak hours of 12:00
a.m. (midnight) until 6:00 a.m. local time where reasonably possible.
- The SKYWORKS Technical Service Desk will be available between 8:00 am and 18:00pm during working days for e-mail and web-based support queries (www.skyworks.co.za).
- The Technical Service Desk can be contacted telephonically on 087 802 0762 and its hours of operation are 08h00 to 17h00 weekdays. Additional information can be sent to the Technical Service Desk via e-mail at email@example.com
- If for any reason the Technical Service Desk cannot be reached telephonically, the Customer shall follow the agreed escalation procedure.
- The Customer shall report all faults to SKYWORKS in by calling 087 802 0762 or 066 470 6494, or emailing firstname.lastname@example.org or logging a fault via the website www.skyworks.co.za
- All requests to the SKYWORKS Support Desk (email@example.com) will be answered within an estimated 8 hours during working days.
- Where assistance is required by either Party, this shall be requested through the SKYWORKS Technical Service Desk.
- A copy of all contact telephone numbers, and escalation matrix shall be made available on the SKYWORKS website and will be updated as and when changes occur.
- From time to time testing and routine maintenance will be required on the network infrastructure and will normally be performed during off-peak times (00:00 – 06:00).
- Where testing or maintenance is required during the times stipulated in above, a standard service interruption notification will be communicated to the Customer at least 7 (seven) calendar days prior, where possible.
- SKYWORKS shall monitor the infrastructure platform and notify the Customer in the event of disruptions that will affect the delivery of service.
- The Customer shall supply SKYWORKS with the following details when logging a fault:
- reference number (from the helpdesk).
- start time of the fault.
- service affected.
- symptoms and nature of the downtime.
- Scheduled maintenance of the SKYWORKS network (or portion thereof) will not normally result in Service interruption or outage. However, in the event scheduled maintenance should require a Service interruption or outage, SKYWORKS will exercise commercially reasonable efforts to:
- provide Customer with seven (7) days’ prior written notice of such scheduled maintenance,
- work with Customer in good faith to attempt to minimise any disruption to Reseller’s services that may be caused by such scheduled maintenance, and
- to perform such schedule maintenance during the non-peak hours of 0:00 (midnight) until 06:00 local time.
- SKYWORKS will arrange for the necessary repairs arising in terms of this Agreement.
19. CHANGE MANAGEMENT PROCEDURE
- Notification of all planned changes or maintenance schedules will be e-mailed or sent via WhatsApp.
- The customer shall provide a mobile number to SKYWORKS to which notifications can be sent via WhatsApp.
- SKYWORKS shall try and inform the Customer of any change or scheduled maintenance that will affect service at least seven (7) calendar days before the planned implementation date.
- If the Customer requires that the planned changes or maintenance to be stalled, postponed or rescheduled because of business-affecting reasons, these reasons must be reported to the SKYWORKS within 24 hours of receiving notification from SKYWORKS.
- SKYWORKS Technical Service Desk will inform and consult with the Customer regarding any emergency change or maintenance to correct a fault that will affect service, at least one (1) hour before the implementation, if possible.
- If and to the extent an emergency change is required and, after all attempts to inform the appropriate Customer representative as the Customer escalation matrix failed, SKYWORKS may make such a change provided, and shall as soon as reasonably practicable after making such a change and again upon termination of
the emergency concerned, provide the Customer representative with full written details of such change and the reason or reasons therefore.
- All changes are managed by the Technical Service Desk. The start of the change is logged; the change is implemented by trained technical personnel and overseen by a SKYWORKS supervisor. The end of the change is logged, and the success thereof logged and recorded.
- Termination for Convenience:
- Either Party shall be entitled to terminate this Agreement by providing the other Party with 30 (thirty) days’ prior written notice to that effect.
- Termination in accordance with clause 20.1.1 above shall not affect the Service Term of any SCS, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the Service Term of the SCS.
- Notwithstanding the Service Term set out in the SCS, the Customer shall be entitled in its sole discretion and without cause, to the terminate one or more SCS’s (the “Terminating Services”) by giving SKYWORKS 30 (thirty) days’ prior written notice, which termination shall be subject to the early termination charges set out in clause 21 below.
20.2 Termination for cause:
In the event that there is a breach by either Party, the non-defaulting Party shall be entitled to provide the defaulting Party with 30 (thirty) days’ written notice to remedy such breach, including but not limited to breaches set out below, a meeting of that Party convened to consider or pass a resolution, or a declaration is made in respect of that Party, a petition is presented in respect of that Party, legal proceedings are commenced by or in respect of that Party or any other step is taken, for the provisional or final winding-up, sequestration, judicial management, curatorship or dissolution of that Party’s assets, business, undertaking or estate or with a view to a composition, assignment or arrangement with such Party’s creditors;
the Party being or becoming unable (or admitting its inability) to pay its debts generally as they fall due or being (or admitting to being) otherwise insolvent or stopping, suspending or threatening to stop or suspend payment of all or a material part of its debts or making a general assignment or arrangement or composition with, or for the benefit of, its creditors (or any class of them);
any business rescue proceedings under the Companies Act, 2008, being commenced against it or a resolution being proposed to place the Party under
supervision under the Companies Act, 2008, at any duly convened meeting of the shareholders or board of directors of the Party.
any liquidator, curator, judicial manager, business rescue practitioner or similar officer being appointed in respect of the Party or any part of its assets, undertaking, business or estate or such entity (or any organ of that person or entity) requests such appointment;
the Party committing any act which, if it were a natural person, would be an act of insolvency as contemplated in the Insolvency Act.
The non-defaulting Party shall be entitled to terminate this Agreement, where the defaulting Party fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this Agreement after having been required to do so within a period of 30 (thirty) days.
21. EFFECTS OF TERMINATION
- Termination of this Agreement and/or an SCS in whole or in part, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
On termination of this Agreement and/or a SCS:
- all benefits (including rights of use and licenses) conferred upon the Customer in terms of this Agreement and/or a SCS, shall immediately cease and the Customer shall have no claim, whatsoever, against SKYWORKS. for the loss of such benefits.
- the Customer shall return all Facilities and/or SKYWORKS equipment located on the Customer Premises and/or Customer premises or facilitate SKYWORKS removal of such Facilities and/or SKYWORKS. Equipment; and
- the Customer shall promptly return to SKYWORKS or otherwise dispose of as SKYWORKS may instruct all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents, or papers
- The termination of this Agreement and/or an SCS shall not of itself give rise to any liability on the part of SKYWORKS to pay any compensation to the Customer, including but not limited to, for loss of profits or goodwill.
- SKYWORKS shall be entitled to cancel all orders for Services placed by the Customer prior to the termination date, whether such orders have been accepted by SKYWORKS, without incurring any liability of any nature to the Customer.
22. INTELLECTUAL PROPERTY RIGHTS
- Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
22.2. Each party indemnifies the other party against all crimes, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement of any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the infringement by a Party of the intellectual Property Rights of the other Party.
- SKYWORKS retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services. In particular, SKYWORKS retains all right, title and interest in all Intellectual Property rights in and to work products, deliverables, documentation, reports, designs, formulae, methodologies, software, proposals, specifications, feasibility reports and systems, whether used to provide or as are developed or created as part of the Services.
- SKYWORKS shall retain all right, title and interest in all Intellectual Property developed or generated pursuant to and as part of the performance of the Services provided under this Agreement.
- The Customer is aware of the SKYWORKS interest in the equipment installed at their premises.
- It is the customer’s responsibility to ensure that SKYWORKS’ equipment installed at their premises is insured for a minimum value of R4,500.
- If the customer fails to Insure SKYWORKS equipment for the value stated in clause 23.2 the customer will be held fully and solely liable for the total loss or damage incurred by SKYWORKS.
- The customer can apply to have SKYWORKS equipment insured by SKYWORKS, in which case any lost, stolen or damaged equipment will be replaced by SKYWORKS within business 48 hours.
23.4 If the customer chooses to insure SKYWORKS equipment through their own Insurance Provider, the customer will remain completely liable for the total monthly service fee due to SKYWORKS, irrespective of the unavailability of the service.
- Each Party hereby warrants unto and in favour of the other Party:
- it has full power, authority and legal right to execute this Agreement, to assume the obligations contained in this Agreement, and further to perform and observe the terms and provisions hereof.
- to the best of the Party’s knowledge and belief, all facts and circumstances material to this transaction, or which would be material or would be reasonably likely to be material and which may affect the willingness of the Parties to enter into this Agreement are known to the Party, have been disclosed by the Party to the other Party;
- as at the Signature Date, no legal proceedings of any kind of administrative proceedings in terms of any law which shall prevent either Party from fulfilling its obligations in terms of this Agreement, have been instituted against such Party.
- at all times during the currency of this Agreement neither Party has any obligations/duties to third parties which, if discharged, shall prevent the Party from fulfilling its obligations in terms of this Agreement; and
- all necessary action has been taken to authorise the execution and performance of this Agreement and the execution and performance of this Agreement will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a Party or by which it or its property may be bound.
- SKYWORKS does not make any representations or warranties in respect of the quality or functionality of the SKYWORKS Equipment. The Customer shall only be entitled to rely on the warranties and indemnities provided by the original equipment manufacturer in respect of the SKYWORKS Equipment, which warranties and indemnities shall be enforced directly against the original equipment manufacturer and not against SKYWORKS.
- The Customer hereby indemnifies and holds SKYWORKS harmless against all loss, damage, costs and/or expenses which SKYWORKS may suffer or incur and any and all claims which may be brought against SKYWORKS by any third party in respect of any loss, liability, damage, costs and/or expenses of any nature whatsoever as a consequence of or which may arise from or is attributable to the
engagement of the Customer, the provision of the Services by the Customer or any acts or omissions on the part of the Customer
26. LIMITATION OF LIABILITY
- Neither Party shall be liable to the other Party for any indirect or consequential loss or damage (including any loss of profit/contract/opportunity) which may be suffered by the other Party under or in connection with this Agreement.
- The total liability of either Party under or in connection with this Agreement shall, to the extent permitted by Law, not exceed the aggregate value of the Services that have been carried out under this Agreement at the time at which any claim is made.
- Where the insurance cover of any insurance policy that is procured by either Party under this Agreement, which is capable of being called upon to cover any liability/damage, exceeds the aggregate cap of liability, such aggregate cap of liability shall not compromise the insurance cover that can be claimed by either Party to cover the liability/damage in question.
- Accordingly, the imposition of such aggregate cap of liability shall not be construed as a stipulation alter in favour of any insurer who would otherwise be liable to make payment from the insurance cover to cover a claim that is in excess to such aggregate cap of liability under such insurance policy.
- This Clause 26 shall not limit liability of either Party in any case of fraud, deliberate default, or reckless misconduct by either Party
27. FORCE MAJEURE
- A force majeure event shall occur when either Party is prevented or restricted directly or indirectly from performing all or any of that Party’s obligations in terms of this Agreement by reason of Force Majeure, which shall constitute a “Force Majeure Event” for the purposes hereof.
- The exclusive remedy of a Party affected by a Force Majeure Event (“the Affected Party”) constitutes that:
- it shall be relieved of performance of its obligations in terms of this Agreement during the period that such event and its consequences continue (but only to the extent it is so delayed or prevented from performing partially or at all by the Force Majeure Event), and, provided that notice has been given in terms of Clause 28.1, shall not be liable for any delay or failure in the performance of any of its obligations in terms of this Agreement or losses or damages whether general, special or
consequential which the other Party (“the Unaffected Party”) may suffer due to or resulting from any such delay or failure; or
- The Affected Party shall give written notice to the Unaffected Party at the earliest possible opportunity in writing of the occurrence of the event constituting the Force Majeure Event, together with details thereof and a good faith estimate of the period of time for which it shall endure;
- At all times whilst a Force Majeure Event continues, the Parties shall meet at regular intervals to discuss and investigate, and if possible, to implement other practical ways and means to overcome the consequences of such a Force Majeure Event, with the objective of achieving the import and intent of this Agreement without unreasonable delay.
27.3 The Affected Party shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event on its ability to perform under this Agreement and to terminate the circumstances giving rise to a Force Majeure Event as soon as reasonably possible and upon termination of the event giving rise thereto, shall forthwith give written notice thereof to the Unaffected Party7
28. DISPUTE RESOLUTION
- In the event of there being any dispute or difference between the Parties arising out of this Agreement and/or any SCS, the said dispute or difference shall on written demand of either party be submitted to arbitration in Sandton in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
- Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
- The Parties agree that the written demand by SKYWORKS to the dispute in terms of clause that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
29. NOTICES AND DOMICILIA
- The Customer selects as its domicile citadel et executant the physical addresses, fax numbers and email addresses as specified in the Service Agreement Form for the purposes of giving or sending any notice provided for or required under this Agreement.
- SKYWORKS selects as its domicile citadel et executant the physical addresses, and email addresses as specified below for the purposes of giving or sending any notice provided for or required under this Agreement.
Shop7B, 1st Floor, Entrance 6, Financial Square, Mandela Drive, Witbank, South Africa.
- Provided that a Party may change its domicile or its address for the purposes of notices to any other physical address or telefax number by written notice to the other Party to that effect. Such change of address will be effective 5 (five) business days after receipt of the notice of the change.
- All notices to be given in terms of this Agreement will be given in writing and will:
- be delivered by hand or sent by telefax or email.
- if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and
- if sent by telefax or email during business hours, be presumed to have been received on the date of successful transmission of the telefax or email. Any telefax or email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
- Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 29.
30. APPLICABLE LAW AND JURISDICTION
- This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
- 30.2 The Parties hereby consent and submit to the non- exclusive jurisdiction of the South Gauteng High Court, Johannesburg in any dispute arising from or in connection with this agreement.