- 1. Definitions and Interpretation
- 2. Appointment and Duration
- 3. Supply of Starter Packs
- 4. Regulatory Requirements & Limitation of Liability
- 5. Confidentiality and IPR
- 6. Breach
- 7. Domicilia and Notices
- 8. Consumer Protection Provisions
- 9. General
1.1. The following words and phrases shall have the following meanings and cognate expressions shall bear corresponding meanings:
1.1.1. “Activation” means the connection of a Customer’s SIM Card to the relevant Network Operator’s network in accordance with the criteria from time to time stipulated for “activation” by the Company and/or the Network Operator concerned in their sole discretion and “Activated” and “Activation Bonus” means the amount paid by the Company on Activation;
1.1.2. “the/these terms” means these general terms and conditions, as amended from time to time by publication of the Company’s website, which change shall have immediate effect and shall be binding upon the Distributor;
1.1.3. “Business Day” means a day which is not a Saturday, Sunday or public holiday in South Africa;
1.1.4. “the Company” means THE STARTER PACK COMPANY (PROPRIETARY) LIMITED (Registration No.: 2007/010809/07)
1.1.5. “Confidential Information” means information, knowledge, documents, material and trade secrets, methodologies and the like which are not in the public domain, other than information obtained from a third party, required to be released by law or independently developed;
1.1.6. “Customer” means the end user customer that uses the SIM Card;
1.1.7. “Network Operator(s)” means Vodacom, MTN, Cell C, Telkom, as well any other telephone network and/or provide telephony, voice, data and other services;
1.1.8. “Ongoing Revenue Commission” means such ongoing revenue commission calculated on the face value of an airtime voucher and inclusive of VAT as is from time to time offered to the Distributor in the sole discretion of the Company and which may at any time be revoked;
1.1.9. “Party” or “Parties” means the Company and/or the Distributor;
1.1.10. “RICA” the Regulation of Interception of Communications and Provisions of Communication Related Information Act of 2002, as amended from time to time;
1.1.11. “SIM Card” means a mechanism of connecting to a Network Operator’s network, currently being a subscriber identity module (incorporating a unique MSISDN);
1.1.12. “Starter Packs” means an activation pack containing a SIM Card;
1.2. Words importing any one gender shall include the other two genders; the singular shall include the plural and vice verse; a reference to natural persons shall include created entities and vice verse;
1.3. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive provision;
1.4. When any number of calendar days is prescribed in these terms, that number of days shall be reckoned exclusively of the first and inclusively of the last day;
1.5. The rule of construction that an agreement is interpreted against the party responsible for drafting it shall not apply and the expiration or termination of these terms shall not affect the provisions that are expressly or by implication (including clauses of general application, definitions and confidentiality and intellectual property rights clauses) intended to operate after any such expiration or termination.
2.1. By selling Starter Packs to the Distributor, the Company appoints its Distributor to distribute, market, sell and promote the sale of Starter Packs to Customers, and the Distributor undertakes to procure its best endeavours to maximise the sale of Starter Packs. This appointment can be revoked at any time. The Company shall be the exclusive supplier to the Distributor of Starter Packs and/or any similar or competing product and the Distributor shall not directly or indirectly procure same or similar products from any third party, nor be directly or indirectly interested or associated with any party that does so during its appointment as a Distributor and for a period of 5 (five) years thereafter. If the Distributor breaches this clause the Company may terminate without prejudice to its other rights.
3.1. The commissions and revenues earned by the Distributor shall from time to time be advised to the Distributor and the Company may from time to time unilaterally change or evoke same, in its sole discretion. Risk shall pass upon delivery. All amounts due to the Company are payable without set-off.
3.2. All amounts due to the Company shall be payable without deduction, set-off or demand, and shall be payable upon delivery and provision of a valid tax invoice to the Distributor (unless credit terms are extended by special arrangement). Any amount not paid to the Company timeously shall attract interest at the prime overdraft rate from time to time published by ABSA Bank Limited plus 3% (three percent). The Distributor shall purchase Starter Packs from the Company at such price as the Company may advise to the Distributor from time to time The Company shall use its reasonable endeavours to timeously supply Starter Packs to the Distributor, although delivery times shall be the Company’s best estimate and it shall not incur liability for late delivery. The Distributor shall adhere to all requirements (including credit and security requirements) as may be communicated by the Company to the Distributor from time to time. All amounts payable to the distributor are stated inclusive of VAT and where the Distributor is not a VAT Vendor, the stated amount shall be reduced by 12.29% (twelve point two nine percent).
4.1. The Distributor must collect the information referred to below and transmit same to the Company and/or Network Operator in the manner from time to time prescribed by the Company, and verify same in the manner contemplated in clause 4.2 below, in relation to each Customer, before the Customers receives a SIM Card:
4.1.1. MSISDN number of the SIM Card that shall be handed to the Customer; and
4.1.2. Full Name; and
4.1.3. Identity Number or passport number and country of issue if not South Africa; and
4.1.4. Address where the Customer resides, works, conducts business or in the case of a person who lives in an informal settlement, the physical address of the place where the Customer usually receives post.
4.2. The Distributor must verify the photo, full name, identity/passport number and address of the Customer by physically inspecting:
4.2.1. One of the following documents, dated not more than 3 (three) months prior, which must have the Customer’s name on it, to establish the Customer’s address; municipal rates bill, bank statement, telephone account, utility bill, television license, insurance policy, lease, credit agreement or motor vehicle license; and
4.2.2. The Customer’s photograph and identification or passport number. This must be done by inspecting the Customer’s South African permanent or temporary Identity Document or passport, or in the case of a foreigner, his passport or in the case of a refugee, his identification document issued by South African authorities.
4.3. The Distributor must retain copies of the documents set out in Clause 4.2 if at all possible.
4.4. The Distributor shall at all times act in the Company’s best interests and in utmost good faith towards the Company.
4.5. The Distributor acknowledges that the Network Operators and the Company are relying on the Distributor to perform certain functions on their behalf, which the Network Operator is required to perform in terms of RICA and which the Company may be contractually required to perform for the Network Operator, and as such should it breach these terms, it indemnifies the Company and the Network Operator concerned against any liability, loss, damage or cost they incur as a result.
4.6. The Distributor shall act in accordance with the reasonable instructions from time to time prescribed by the Company and without limitation, the Distributor acknowledges that he/she has read and understands the policy as displayed on the Company’s website and agrees to be bound by same. The Distributor agrees that it shall never divulge the details of a Customer to any third party. The Distributor may not assign any rights or obligations in terms of these terms.
4.7. Should the Company incur liability in terms of any law or regulation, as a result of the Distributor’s actions or omissions, then the Distributor shall indemnify the Company against any loss or damage incurred by it.
4.8. The Company shall not be liable for any claims, loss or damage resulting from claims that Starter Packs are defective, save to the extent that its suppliers provide redress in terms of a warranty provided as aforesaid by such suppliers. No Party shall be liable for consequential damages or any damages resulting from loss of data, loss of profit or business, loss from third party claims.
5.1. Each Party hereby undertakes to the other Party, during these terms and for a period of 2 (two) years from the termination thereof to keep confidential all Confidential Information whether written (including information contained in electronic format and not, without the other Party’s written consent, to disclose the Confidential Information in whole or in part to any person save its employees and to use it only for the benefit of the other Party as contemplated in these terms and upon demand return the other Party’s Confidential Information and not retain any copies.
5.2. Intellectual property rights of the Parties (including those relating to any products owned by either of the Parties, their vendors and/or suppliers and the software used to implement such products) shall at all times remain the sole property of such Parties.
6.1. Should the Distributor commit a breach of any of the provisions of these terms, then the Company may give the Distributor 7 (seven) days written notice to remedy the breach and if the Distributor fails to comply with such notice, the Company shall be entitled (in addition to any other remedy) to:
6.1.1. claim immediate payment and/or specific performance by the Distributor of all its obligations;
6.1.2. in either event without prejudice to its rights to claim damages.
6.2. The Company shall be entitled to claim legal costs on the scale as between attorney and own client.
The Distributor chooses any address given by it to the Company as its service addresses for all purposes arising from or pursuant to these terms, including the service of notices and legal proceedings, at which it shall be deemed to have received such notice or proceeding i f same is served upon such address.
8.1. This clause 8 only applies if the Distributor is also a consumer as defined in the Consumer Protection Act No. 68 of 2008 (“CPA”). Any provision of this clause that conflicts with another provision of these terms, shall prevail. For the purposes of this clause “Consumer” means the Distributor and “we” means the Company “you” means the Distributor. This clause will only apply if you are a Consumer and it will take precedence over any conflicting provision elsewhere in the Agreement.
8.2. Warranties -Subject to contradictions in the CPA that apply to Consumers and shall prevail:
8.2.1. we do not give any warranty or represent that any goods or services will be fit for any purpose, free of defects or do anything that you may expect and we shall not be liable to you or anyone else (and you indemnify us against third party claims) for any loss or damage of any kind, no matter how it is caused;
8.2.2. in addition we will also not be liable for any loss related to loss of data, loss of profit or business or any other kind of loss that is not reasonably foreseeable;
8.2.3. if persons to whom you on-sell our products and services ever claim against it, we will not be liable to you or them, and you indemnify us against their claims;
8.2.4. where we on-provide goods or services we shall never provide you with a better warranty or recourse than the original manufacturer of the goods or service provides us, which it shall pass on to you on a “flow through” basis.
8.3. Breach, termination –you shall be entitled to remedy a breach of these terms within 20 (twenty) Business Days of us giving notice of the breach, and we may only terminate if you persist in the breach after expiry of that period. If we fail to perform to the standards required by these terms, your sole remedy will be to require us to remedy the defect or to claim a reasonable reduction in the price paid for the service.
8.4. Quality –
8.4.1. If goods are found within 14 (fourteen) days of delivery to be (i) unsuited for the purpose for which they are intended; (ii) of poor quality or defective; or (iii) unusable or non-durable for a reasonable period of time having regard to the use to which such goods would normally be put and other relevant circumstances, then you may return the goods to us at our risk and expense and elect either to have the deficient goods replaced or to refund the price paid and, upon your election, we shall bear no further liability to you, save as contemplated in section 61 of the CPA (if any).
8.4.2. All other warranties or conditions as to quality, description or fitness for purpose are specifically excluded. Our liability for breach of this warranty (or any other claim based on any defect in goods that we supply) shall under no circumstances exceed the replacement or repair value (if we can repair the goods) of the goods shown to be defective or, at our election, reimbursement of the price received by it for the goods.
8.5. If we elect to make partial deliveries, each partial delivery shall be deemed to be the subject of a separate sale and non-delivery or delay in effecting any partial delivery shall not affect the balance of the sale or entitle you to cancel the sale.
8.6. In terms of Section 49 of the CPA we must bring terms to the Consumer’s attention where they limit our liability/risk or place risk/liability on the Consumer or require the Consumer to provide an indemnity or constitute a positive acknowledgment by the Consumer. You are entitled to sufficient time to consider these clauses that they must be clearly identified in different text and so you, by signing these terms, agree that you have read and properly considered and understood each of these clauses. Where a term in this clause conflicts with another provision of these terms, the provisions of this clause will prevail.
8.7. You have the right to cancel an order placed in advance for standard goods or services, subject to payment of a reasonable cancellation fee determined by us in our reasonable discretion.
9.1. Neither Party shall have any claim against the other for any failure of the other to carry out any of its obligations as a result of any cause whatsoever beyond the control of the other Party.
9.2. The Distributor may not assign any rights or obligations in terms of these terms and if it attempts to, the attempt shall not be valid but it shall be liable for the obligations of any third party that continues the relationship with the Company as surety and co-principal debtor in favor of the Company.
9.3. These terms constitutes the only terms applicable to the Parties relationship on the subject matter of these terms and supersedes all and any prior oral or written undertakings, agreements and understandings between the Parties. No related representation, oral agreement or side agreement and no waiver in terms of these terms, and no consensual cancellation of these terms shall be effective unless recorded in these general terms from time to time. A waiver by the Company shall not constitute an estoppel.
9.4. If any of the terms of these terms become invalid or unenforceable and the remaining terms are still capable of giving effect to the Parties underlying intention then such terms shall be severable and be deemed to be deleted from the other terms or provisions of these terms which shall remain in full force.