ESA Partner (Pty) Ltd (“Holla”) agrees to provide communication services to the Customer subject to the following terms and conditions:
1.1 Holla has entered into agreements with various companies to provide wholesales electronic communications network service (“ECNS”) and electronic communications service (“ECS”) under license. We are authorised to resell these licensed services.
1.2 This agreement sets out the terms and conditions that We have agreed with You to provide You with the services (and any other services) that You have requested from us.
2. Interpretation and Definitions
In this Agreement, the following terms will have the meanings provided below:
2.1 “Agreement” means the terms and conditions set out in this document (including all annexures) and Holla’s quotation accepted by the Customer.
2.2 “Approved Hardware” means your hardware which has been certified and approved for use with Holla’s services.
2.3 “Change Management” means Holla making a change to the settings or scope of the Service (for example a change to PBX settings).
2.4 “Cloud” means the use of remote servers accessible over an internet connection.
2.5 “Downtime” means Holla’s servers are unavailable due to problems with Holla’s systems or hardware (and not due to any third party dependency).
2.6 “Emergency” means the Customer is unable to make use of Holla’s services while using approved hardware and Suitable Connectivity for voice transmission.
2.7 “Equipment” means equipment supplied by Holla to You as requested by You for use with the Service and as recorded in our quotation. Equipment may, for example, include VoIP hardware, network routers, switches, handsets and modems.
2.5 “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime experienced in a calendar month, divided by the total number of minutes in a calendar month.
2.6 “PBX” means Private Branch Exchange, which is a private telephone network used within a company.
2.7 “Service” means the provision of cloud PBX and voice services, call recording and logging, cloud based (hosted) email services and data and/or internet services as more fully described in Annexure C.
2.8 “Service Fees” means the fees charged for using our Service.
2.9 “Suitable Connectivity” means a good quality internet connection with low enough latency, jitter and packet loss for clear voice transmission.
2.10 “Support” means providing assistance by email or telephone and/or diagnosing a problem directly related to the functioning of the Service.
2.11 “TMS” means Holla’s proprietary online Telephone Management System.
3. Period of this Agreement
This agreement will commence on the date of signature and will continue until either party terminates the agreement on 30 (thirty) days’ written notice or for breach.
Holla will provide You with the Service in accordance with the service levels in Annexure C and supply the Equipment (if any has been requested by You). Our Service will be provided in a professional way and in accordance with generally accepted telecommunications industry standards. We will use our best effort to keep the Service available at all times. However, our Services have third party and connectivity dependencies and Holla will not be responsible for any business interruption, loss of use, profit, anticipated profit, contracts, revenues, goodwill, anticipated savings, business information, data or other monetary loss that You may suffer if our Service is not available. It is the Customer’s responsibility to make sure that You have the necessary backup plans in place should our Services not be available at any time.
5. Your Undertakings
5.1 You agree that You have assessed your needs and the Service and Equipment selected by You are suitable for your requirements.
5.2 You agree that while using the Services You will comply with all applicable laws and with Holla’s acceptable use policies published on www.Holla.co.za.
5.3 You understand that interconnectivity between communication networks is an essential requirement for our Services. As such You agree that You will not do anything (or fail to do something) which may damage, impair or preclude Holla’s network, the network of our suppliers or any interconnected networks.
5.4 You acknowledge that if We or our suppliers have reason to believe that You are abusing the Service or using the Service unlawfully or for an improper purpose then We (or our suppliers) are entitled to suspend the provision of the Service without liability to Holla or our suppliers. If the Service is suspended in terms of this clause, We will give You notice of the suspension and the reasons for the suspension. You indemnify Holla and hold us harmless against any claims by third parties in respect of any prohibited or unlawful activities conducted by You while using the Service.
5.5 You must ensure that all your staff are trained in the proper use and operation of the Equipment and the TMS and that they are used in accordance with applicable manuals and instructions.
5.6 You must:
5.6.1 Comply with any instructions issued by Holla regarding your use of the Service and Equipment required for the provision of the Service.
5.6.2 Provide Holla with all information relating to your use of the Services and Equipment that We may reasonably require from time to time.
5.6.3 Provide primary contacts responsible and authorised to interact with us for administration, ordering new products and services, submitting Change Management requests and Support requests. Your primary contact information is set out in Annexure B. You must notify us of any change to the names/contact details of your primary contacts.
5.6.4 Provide Holla with all hardware information that You intend to use with the Services for our verification and approval before use with the Holla’s services.
6.1 Costs of the Service and Equipment (if any) are set out in the quotation/s accepted by You when You request the Service or Equipment.
6.2 Calling costs are calculated from the 15th to the 14th of each month and paid in arrears.
6.3 Service Fees are calculated by calendar month and paid in advance.
6.4 Holla has the right to change its cost of Service at any time on 30 (thirty) days’ notice.
6.5 Charges for additional services (for example Change Management) will be invoiced separately at Holla’s standard service rates.
7. Credit and Deposits
7.1 You authorise Holla to conduct all reasonable credit checks and searches to establish your creditworthiness and You must provide us with all documents reasonably required by us to undertake the necessary credit checks. We undertake that We will comply with all applicable data protection laws when processing your information.
7.2 We may require a deposit or other security to cover any debt that You may owe to us. We may set a calling credit limit for You at our discretion and may amend this from time to time. If You reach or exceed the calling credit limit set by us at any time during the use of the Service, your outbound calling services will be suspended. These services will only be restored when You pay all amounts due to us or provide us with additional security.
7.3 If You do not pay on time for pre-paid services your service will be suspended. Suspended services can be reactivated within 3 (three) months of suspension at no costs. After 3 (three) months of suspension your account will be terminated and all records, data and airtime deleted from record. Any service resumption after the 3 (three) month period will be at the discretion of Holla.
8.1 If You are a “Post-Paid” customer We require You to compete a debit order in the form of Annexure A. Payments will be made in accordance with the debit order. The maximum limit for a debit order is R150,000.00. Should the monthly amount due to us exceed this amount, You must pay us the excess amount by EFT within 5 (five) working days of date of invoice.
8.2 Invoices will be issued on or about the 15th day of each month.
8.3 Holla’s invoices will be deemed to be correct unless You raise a dispute or query within 45 (forty five) days of receiving it. If You dispute or query an invoice You must submit a written claim for the disputed amount, fully documenting the basis of the claim and with sufficient evidence and documentation to support it. You remain liable to pay all undisputed amounts.
9. Allocated Telephone Numbers
9.1 You are entitled to port your number/s in accordance with the rules of any applicable regulator or authority (for example, ICASA).
9.2 You are not permitted to use a number in any geographical area other than the geographical area to which the number is assigned.
9.3 The rights in geographic specific numbers from the national numbering range (for example, 021 or 031) will be deemed to be those of the Customer in accordance with ICASA regulations and may be ported prior to termination of this Agreement.
Either party may, on giving ten (10) days’ written notice of breach, terminate this Agreement unless the party receiving the notice cures the breach within the ten (10) day period. On termination, You must pay Holla for all Services rendered and expenses incurred by You prior to the date of termination.
11. Limitation of Liability
11.1 Holla will not be liable to the Customer, its employees, agents or sub-contractors or any third party for any consequential, indirect, special or incidental loss or damage of whatsoever nature and howsoever arising. This includes but will not be limited to loss of property or loss of profit, business, goodwill, revenue or anticipated savings or any costs, claims or demands whether out of breach of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability, in delict or otherwise, whether asserted against Holla or against the Customer by any third party and whether based on or in relation to this Agreement, any Service or supply of Ancillary Product, the rendering or non-rendering of the Services, withdrawal or suspension, or otherwise.
11.2 Holla depends on third party providers, directly or indirectly, to provide its services. To the extent permitted by law, the Customer agrees not to hold third party service providers liable for damages, losses, costs or expenses for any consequential, incidental or indirect losses or for any loss of profits, business, income or interest, or in respect of any claims by third parties arising from or in connection with any act, omission, neglect or default of a third party provider, or Holla where this is a direct result of the third party provider act or omission, neglect or default.
11.3 Your exclusive remedy for any claim arising out of this Agreement is for Holla to return the Services Fees paid to it by You in the 6 (six) months immediately preceding the event that gave rise to the claim.
12. General Rights and Obligations
12.1 Neither the Customer nor Holla are legally obliged to comply with any express or implied term, condition, undertaking, representation, warranty, or promise not recorded in this Agreement.
12.2 This Agreement replaces any arrangement or understanding held by the parties before the commencement of this Agreement.
12.3 No amendment, addition or consensual cancellation of this Agreement will be binding unless it is recorded in writing and signed by the Customer and Holla.
12.4 If Holla brings legal proceedings against the Customer to enforce payments of amounts owed to it, the Customer will be responsible to pay all costs Holla incurs in collecting the payment.
12.5 Neither party will lose any of its rights under this Agreement if it does not immediately and in every instance insist on them.
12.6 The Customer and Holla agree to accept any notice and legal processes at the addresses indicated on the front page of this Agreement.
12.7 Holla agrees to keep all information it has obtained regarding the Customer confidential and will only use such information for the purposes of providing the Services and conducting the necessary credit checks.