FIBRE GEEKS (PTY) LTD TERMS & CONDITIONS
*THE CUSTOMER ACKNOWLEDGES THAT BY SIGNING THE INSTALLATION AGREEMENT THAT THE CUSTOMER UNDERSTANDS THE CONTENT HEREOF AND AGREES THERETO ACCORDINGLY.
Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto.
“The Act” means the Electronic Communications Act 36 of 2005, as amended from time to time, and any regulations, as may be amended or replaced from time to time.
“Agreement” means the Registration Form and these terms and conditions which will apply to the Customer.
“Authority” means the Independent Communications Authority of South Africa established in terms of section 3 of the Independent Communications Authority of South Africa Act, 2000 and its successors who govern and oversee the telecommunications and electronic communications industry;
“Business Day” means Monday to Friday excluding any public holiday as defined under the Public Holiday Act, 36 of 1994
“Commencement date” means the date when FIBRE GEEKS has processed the Registration Form and notified the Customer that it has agreed to provide the Customer with the FIBRE GEEKS Fibre Line and where applicable the CPE;
“Connection Fees” means the once off fees which are payable by the Service Provider from time to time to FIBRE GEEKS in respect of all fees and charges levied by FIBRE GEEKS to the Service Provider attributable to the connection of the Customer to the FIBRE GEEKS Network.
“CPA” means the Consumer Protection Act, 68 of 2008, as amended and any regulations published in terms thereof, as amended or replaced from time to time;
“CPE” means the Consumer Premises Equipment and associated fibre cable (including software, hardware, cables, connectors, programmes, interfaces, associated media, printed materials, and/or on-line or electronic documentation associated with it, which meets the requirements of the Services selected by Customer in the Application Form, and which CPE is provided by and owned by FIBRE GEEKS;
“Customer” means the person who has applied for and who FIBRE GEEKS has agreed to provide the Fibre Line and CPE, where applicable, and who will be liable for the payment of the Installation Fees and for compliance with the Agreement.
“Device” means any equipment used by Customers to connect to the CPE, to access, use or receive electronic communications services as defined in section 1 of the Act.6
“ECS” means any system of electronic communications facilities (as defined under section 1 of the Act, including without limitation satellite systems; fixed systems (circuit- and packet-switched); mobile systems; fibre optic cables (undersea and land-based); electricity cable systems (to the extent used for electronic communications services); and other transmission systems, used for conveyance of electronic communications; “ECNS” means a service as defined under section 1 of the Act, whereby a person makes available an electronic communications network, whether by sale, lease or otherwise, for that person’s own use for the provision of an electronic communications service or broadcasting service; to another person for that other person’s use in the provision of an electronic communications service or broadcasting service; or for resale to an electronic communications service licensee, broadcasting service licensee or any other service contemplated in the Act, and ‘network services’ is construed accordingly;
“Fibre Line” means a single Fibre Line provided by FIBRE GEEKS to the Customer which is an open, secure, high quality fibre connection between the Customer and FIBRE GEEKS’s infrastructure over a fibre transmission network to provide the FIBRE GEEKS Services and shall include any software, hardware, cables, connectors, programmes, interfaces, associated media, printed materials, and/or on-line or electronic documentation associated with it;
“FIBRE GEEKS” means FIBRE GEEKS (Pty) Limited, Registration number 2014/138808/07a private company incorporated in terms of the laws of the Republic of South Africa;
“FIBRE GEEKS Network” means the Fibre Lines and CPEs used by FIBRE GEEKS to render electronic communications services to Service Providers to provide their respective services to the Customer.
“FIBRE GEEKS Services” means any of the services available and supplied by Service Providers on the FIBRE GEEKS Network to the Customer, which the Customer may elect to purchase and use, and for which the Customer required a Fibre Line and CPE.
“Installation” means the physical act and labour of providing a Fibre Line and CPE to the Customer’s premise, and includes all physical work and materials required such as trenching, reticulation, splicing, termination and mounting of the CPE.
“Registration Form” means the agreement signed by Customer which authorizes FIBRE GEEKS to install, manage and maintain the FIBRE GEEKS Fibre Line and CPE at the Customer’s premises subject to the terms and conditions set out herein.
“Installation Date” means the appointment date on which the Installation is booked to take place and /or the date the Installation is completed whichever is later.
“Installation Fees” means the once-off fees which are payable to FIBRE GEEKS by the Customer for the installation of the FIBRE GEEKS Fibre Line. “No Show” Cancellation fee means the once off cancellation fee payable from the customer to FIBRE GEEKS in the event that the Customer is not available for the “Installation”.
“Office Hours” means Monday to Friday from 08:00 to 17:00, Saturday 09:00 to 13:00 excluding any public holiday as defined under the Publi c Holiday Act, 36 of 1994.
“Parties” means collectively, FIBRE GEEKS and the Customer;
“Personal Data” means all personal details conveyed to FIBRE GEEKS by the Customer such as his/her identity, whereabouts, credit levels, financial status, earning capabilities, family members, likes, preferences and dislikes, which are required in order to process the application and required to determine current and future customer requirements;
“RICA” means the Regulation of Interception of Communication and Provision of Communication Regulated Information Act 70 of 2002, as amended/replaced from time to time, and its related provisions, which apply to FIBRE GEEKS and to the Customer;
“Service Fees” means the fees payable which are payable by the Service Provider from time to time to FIBRE GEEKS in respect of all fees and
charges levied by FIBRE GEEKS to the Service Provider attributable to the use of the FIBRE GEEKS Fibre Line and FIBRE GEEKS Network.
“Service Provider” means any FIBRE GEEKS approved ECS and or ECNS licensed entity entitled to provide its services to the Customer ov er the
FIBRE GEEKS Network.
2. AGREEMENT TO INSTALL THE FIBRE LINE AND CPE
2.1. The Customer accepts and agrees that the terms and conditions set out under the Agreement will become binding on it once FIBRE GEEKS has processed the Registration Form, undertook the technical and commercial survey to determine feasibility and agreed to provide the Customer with the Fibre Line and the CPE.
2.2. FIBRE GEEKS reserves the right to amend these terms and conditions from time to time. FIBRE GEEKS will give written notice to each Consumer of such amendments and will place the amended terms and conditions on www.fibregeeks.co.za/terms and file such amended terms and conditions with the Authority, which amendment will be deemed to be incorporated into the Agreement and bind the Customer from the date that the amendment has been filed with the Authority.
2.3. Where, as a result of any amendment anticipated under clause 2.2, a Customer is of the view that such amendment is to its detriment; the Customer may terminate the Agreement without penalty provided that it gives FIBRE GEEKS 30 (Thirty) Business days notice in writing of its decision to terminate the Agreement.
2.4. Where a Consumer terminates the Agreement as per his rights under this clause, such termination will be without penalty, save where the Customer has been given or has purchased but not yet paid for the Fibre Line and/or the CPE. In such a case the Customer will have a legal duty and FIBRE GEEKS will have a legal right to demand from the Customer, full payment in respect of the Fibre Line and/or CPE, less any amounts which have already been paid to FIBRE GEEKS in respect thereof prior to such termination
3. PERSONAL INFORMATION, RIGHTS TO PRIVACY AND RICA
3.1. FIBRE GEEKS at any time reserves the right to make general credit reference enquiries about the Customer and to check the correctness of the information that has been supplied. FIBRE GEEKS shall be entitled to provide any information relating to the Customer’s account to any registered credit bureau.
3.2. The Customer warrants and represents that all information supplied by it is true, correct and complete and indemnifies and holds FIBRE GEEKS harmless against all claims, of whatsoever nature, that arise, directly or indirectly, as a result of any incorrect information being supplied
3.3. FIBRE GEEKS will use the Customer’s information strictly in accordance with the Regulations promulgated in terms of Section 69 of the Act and undertakes to use the Customer personal data only for the purpose
for which it has been collected and undertakes that this processing will be carried out in accordance with any notice, consent or other requirement which may be required by any applicable law in force in South Africa from time to time. FIBRE GEEKS furthermore will use the Customer’s information strictly in accordance with the provisions housed under its FIBRE GEEKS’ ECNS and ECS license.
3.4. The Customer accepts that RICA applies to the Fibre Line and the CPE which the Customer has requested FIBRE GEEKS to provide under this Agreement, and agrees that it must, where applicable, comply with the requirements of RICA, including, without generalising:
3.4.1. To provide FIBRE GEEKS with all required Personal Data and other details which FIBRE GEEKS is required to obtain from the Customer, in terms of section 39 of RICA.
3.4.2. Not to transfer the Fibre Line or CPE to another person, other than a family member or dependant without providing FIBRE GEEKS with the Personal Data and other details of the person who is taking over the Fibre Line and/or the CPE.
3.5. The Customer acknowledges and accepts that where it does not comply with these provisions that this will amount to a material breach by the Customer of this agreement which will allow FIBRE GEEKS to cancel the agreement and to claim damages as a result of the cancellation.
3.6. The Customer also acknowledges and accepts that where it does not comply with the provisions set out under clause 3.4, that this will be a breach of RICA and this will give rise to a possible criminal charge and sanction being imposed against the Customer as per the requirements of RICA.
4. DURATION OF AGREEMENT
4.1. Notwithstanding the Installation Date, the Agreement will start on the Commencement Date and will be on a month to month basis, save for where the Agreement is terminated earlier by either of the Parties in accordance with their respective rights set out under clause 15 of the Agreement.
4.2 Should there be an alternate agreement in place between FIBRE GEEKS and the Customer, then the agreement duration specified in the agreement shall supersede the duration specified under clause 4.1.
5. INSTALLATIONS OF THE FIBRE LINE AND CPE
5.1. The Installation Fees is inclusive of the required Fibre Line and CPE.
5.2. The Fibre Line and CPE will at all times remain the property of FIBRE GEEKS.
5.3. Where any other Device is required for the use of a service provider services, which is not provided by FIBRE GEEKS, the Customer will be responsible for installing such device at its own risk, cost and expense.
5.4. FIBRE GEEKS shall install the connections required for the use of the Fibre Line and the CPE at the Customer’s premises against payment of the relevant Installation Fees as quoted by FIBRE GEEKS.
5.5. FIBRE GEEKS shall make reasonable endeavours to meet the Installation Date as requested by the Customer. However FIBRE GEEKS gives no undertakings that it will be able to meet any Installation Date requested by the Customer, the Customer accepting that FIBRE GEEKS will install the Fibre Line and CPE when it is in a position to do so, which will depend on the availability of equipment and service providers or contractors, whatever the case may be.
5.6. FIBRE GEEKS will give the Customer notice of the Installation Date once it has received the CPE and secured the services of its FIBRE GEEKS contractors and service providers for the purposes of installing the FIBRE GEEKS Fibre Line and CPE.
5.7. FIBRE GEEKS will give the Customer notice of the Installation Date once it has received the CPE and secured the services of its FIBRE GEEKS contractors and service providers for the purposes of installing the FIBRE GEEKS Fibre Line and CPE.
5.8. If the Customer fails to make him/herself available for the Installation date and confirmed time and fails to notify FIBRE GEEKS at least 48 hours in advance, of their unavailability, FIBRE GEEKS reserves the right to charge a “No Show” Cancellation fee. The “No Show” Cancellation Fee will be added to the Installation invoice after the installation is completed.
5.9. Only Devices that has been type approved by the Authority may be used in conjunction with the Fibre Line and CPE, and which Device must have all the technical and operational characteristics and modifications of the type that has been approved.
5.10. If the Device is modified, it may not be used in conjunction with the FIBRE GEEKS Service until such time that the Authority has approved the modification.
5.11. FIBRE GEEKS reserves the right to terminate the Fibre Line and CPE, where any Device that has not been approved by the authority or that has been licensed or approved but has been modified without the approval of the authority in terms of section 35 of The Act has been used in connection with the FIBRE GEEKS Services or where the Device has been incorrectly installed or connected to the CPE and the Customer indemnifies FIBRE GEEKS against any liability, loss or damage which FIBRE GEEKS and/or the Customer may incur as a result of the unlawful or incorrect usage of such Device or the incorrect installation of the Device, what ever the case may be.
5.12. If the Customer is not the owner of the premises where the Fibre Line and the CPE is to be installed, the Customer must prior to any installation by FIBRE GEEKS, obtain permission from the owner of the premises for the installation and the Customer indemnifies FIBRE GEEKS against damages or claims resulting from the failure to obtain such permission including all and any costs which may have to be incurred by FIBRE GEEKS should FIBRE GEEKS have to remove the CPE and/or Fibre Line from the premises.
5.13. The Customer must at its own cost and expense provide suitable and adequate electrical power supply as may be required for the proper functioning of the Fibre Line and the CPE
5.14. The Customer must at its own cost and expense ensure that optimum environmental conditions as may be required for the proper management and/or functioning of the Fibre Line
6. USE OF THE FIBRE LINE, CPE AND RELATED EQUIPMENT
6.1. The provision of any Fibre Line to the Customer does not confer on the Customer any right to use the FIBRE GEEKS Service, the CPE or any element thereof.
6.2. The provision of any Fibre Line to the Customer does not confer on the Customer any right to make the CPE, the Fibre Line or any element thereof available to other parties, for purposes for which a license or license exemption is required under the Act, unless the Customer where applicable, and required in terms of the Act, has been granted such a license or license exemption, and such a license or license exemption is in effect.
6.3. The Customer agrees to only use the FIBRE GEEKS CPE or Device approved by the Authority and to comply with all relevant legislation applicable to the use of the FIBRE GEEKS CPE, and Device, including, without limitation, any license or license exemption that may be required in terms of the Act.
6.4. The Customer will ensure and warrants that the FIBRE GEEKS CPE, or the Fibre Line shall not be used for improper, immoral or unlawful purposes.
6.5. The Customer shall not resell capacity on any communications facility obtained from FIBRE GEEKS including the FIBRE GEEKS CPE and Fibre Line or cede or assign his/her rights to use the aforementioned
equipment or any element thereof or otherwise part control of them, without FIBRE GEEKS’s written consent.
6.6. The Customer shall not do anything or omit to do anything or allow anything to be done or omitted which infringes or may infringe FIBRE GEEKS’s rights as set out in the Act and FIBRE GEEKS’s license conditions.
6.7. The Customer must at all times whilst this Agreement is in place:
6.7.1. comply with any instructions issued by FIBRE GEEKS which concern the Customer’s use of FIBRE GEEKS CPE, the Fibre Line, or matters related thereto, and which may be required to ensure the provisioning of the FIBRE GEEKS Services as a whole, or to protect the integrity of the FIBRE GEEKS Network or to deal with emergencies;
6.7.2. provide FIBRE GEEKS with all information relating to the Customer’s use of the FIBRE GEEKS CPE, the Fibre Line, and/or the FIBRE GEEKS Network where the FIBRE GEEKS Services are installed and any other matters related thereto that FIBRE GEEKS may reasonably require from time to time; and which may be required to ensure the adequate provisioning of the FIBRE GEEKS Service, to protect the integrity of the FIBRE GEEKS Network, or to deal with emergencies;
6.7.3. allow FIBRE GEEKS free access to his/her premises during reasonable hours to install, inspect, maintain or remove the Fibre Line and/or CPE.
6.7.4. If, in any building where FIBRE GEEKS must install the Fibre Line and/or CPE, the existing infrastructure is the opinion of FIBRE GEEKS is of such a nature that it requires unreasonable work to be performed and/or excessive cost to install the Fibre Line and CPE, FIBRE GEEKS may, at its discretion:
18.104.22.168. refuse to provide the Fibre Line and/or CPE in that building or in any part thereof until the Customer have made at its own cost the necessary modifications to allow FIBRE GEEKS to provide the Fibre Line and CPE; 22.214.171.124. quote an installation cost in respect of the required modification, and if accepted by the Customer, install
at the Customer’s cost the required modifications.
6.7.5. The FIBRE GEEKS Network is designed to provide one Fibre Line per Customer per Customer’s premise. It the event that the Customer requires additional Fibre Line/s to his or her premise, FIBRE GEEKS reserves the right to quote an installation cost in respect of the required additional Fibre Line/s separately, and if accepted by the Customer, install at the Customer’s cost the required additional Fibre Line/s.
7. FAILURE OF THE FIBRE GEEKS SERVICES OR CPE
7.1. Whilst FIBRE GEEKS operates the FIBRE GEEKS Network, FIBRE GEEKS hereby advises the Customer that FIBRE GEEKS does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of 3rd parties who provide separate but interrelated and connected services which as a whole, allows the FIBRE GEEKS Network and the CPE to function. These 3rd parties operate as independent service providers who are not necessarily contracted by FIBRE GEEKS and the Customer accepts and acknowledges this fact.
7.2. Whilst FIBRE GEEKS will comply with and meet the Service Level Agreements and use its best endeavours to ensure that the FIBRE GEEKS CPE are operational at all times, FIBRE GEEKS does not warrant that the FIBRE GEEKS Services will be operational on a 24 (twenty four) hour 365 (three hundred and sixty five) days per year basis, this being due to the nature of the telecommunications industry and the network, which is dependent on the actions and/or input of a number of independent 3rd parties whom FIBRE GEEKS has no direct control over.
7.3. FIBRE GEEKS also advises and the Customer acknowledges and accepts that the CPEs are not manufactured by FIBRE GEEKS, but are manufactured by third parties. In most cases, due to the provisions of the Act read together with the authority code of practice and guidelines, FIBRE GEEKS will not be in a position to open certain CPEs or to test or operate the CPE before they are handed to the Customer in order to ensure that they are fit for purpose and / or are intact.
7.4. In light of the disclosures housed under clauses 7.1- 7.3 FIBRE GEEKS stipulates and the Customer acknowledges that FIBRE GEEKS cannot warrant or guarantee that the FIBRE GEEKS CPE will:
7.4.1. at all times be free of errors or interruptions;
7.4.2. always are available;
7.4.3. be fit for any purpose;
7.4.4. not infringe on any third party rights;
7.4.5. be secure and reliable, save where the FIBRE GEEKS Fibre Line and / or CPE are found to be defective and such defect has been solely caused by FIBRE GEEKS.
7.5. Notwithstanding the provisions of clause 7.4 above, FIBRE GEEKS will use its best endeavours to notify the Customer in advance of any failure of, or interruption to the FIBRE GEEKS Fibre Line and / or the CPE and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where FIBRE GEEKS is in a position to do so.
8. CHANGE OF PREMISES
8.1. In the event that Customer decides to move and/or relocate to a different location and/or premises, FIBRE GEEKS shall, provided the new location is in an area, where FIBRE GEEKS operates a FIBRE GEEKS Network and subject to the provisions of this agreement move the Customer’s Fibre Line and CPE to the new premises and/or location in which case the Installation Fees will be payable.
9. RISK, THEFT AND LOSS OF FIBRE LINE, CPE AND RELATED EQUPMENT
9.1. Whenever any Fibre Line, Equipment and in particular the CPE is lost, stolen or destroyed, the Customer must immediately notify FIBRE GEEKS and any police official at any police station in writing that the Fibre Line, the CPE and or any other FIBRE GEEKS equipment has been lost, stolen, misplaced or destroyed.
9.2. Risk in and to the use of the FIBRE GEEKS Fibre Line and CPE will pass to the Customer on the Installation Date. FIBRE GEEKS reserves the right to hold the Customer liable for the cost to replace the Fibre Line, CPE and or any other FIBRE GEEKS equipment, regardless of the cause of any such loss or destruction.
10. MAINTENANCE OF THE FIBRE GEEKS FIBRE LINE AND CPE
10.1. The Fibre Line and the CPE used by the Customer will be deemed to be in good working order until FIBRE GEEKS is advised otherwise.
10.2. Unless clauses 10.5 or 10.6 apply, or save where expressly stated to the contrary, the costs in respect of any repair and/or maintenance of the FIBRE GEEKS the Fibre Line and the CPE will be incurred and covered by FIBRE GEEKS.
10.3. The Customer must report all faults to his Service Provider and not to FIBRE GEEKS directly. The Service Provider is responsible for first line support and will contact FIBRE GEEKS if the problem has been identified as originating from the FIBRE GEEKS CPE or fibre lines. FIBRE GEEKS will attend to faults reported by the Service Provider during Office Hours and will apply its reasonable endeavours to have the affected FIBRE GEEKS CPE restored in the shortest possible time.
10.4. The Customer is responsible for maintaining the CPE, used.