LEGAL – Imagine Standard Terms and Conditions (FTTH)

Effective from 01/10/2021

DEFINITIONS
In this Agreement, the words hereunder will have the meanings assigned to them below:-

AGREEMENT: means these Standard Terms and Conditions and any Application Form, Schedules, Annexures, Imagine’s Privacy Policy, Imagine’s Acceptable Use policy, Imagine’s mailbox rules and all other terms and conditions and attachments which may, from time to time, impose in respect of the Service/s, as amended and updated from time to time.

CUSTOMER/CLIENT: The party indicated as Customer / Client on the service subscription or application form

IMAGINE: Benwest Internet Services (Pty) Ltd trading as Imagine.

EFFECTIVE DATE: The Effective Date shall be the date on which the FNO confirms that the Customer link is operational. Should the Customer delay connection of the router for any reason whatsoever, this will not delay the effective date of the service. Billing will commence from the date that the FNO confirms an operational link.

FNO: means the Fibre Network Operator responsible for the installation, supply, monitoring and maintenance of the physical fibre infrastructure and ONT

FTTH: Fibre to The Home

ONT/OLT: Optical Network Terminal – Optical Light Terminal

SERVICE/S: means the service described in this application form and in Clause 1 below, including all software and equipment necessary for provision of the service/s and any other service that you may subscribe to or which may form part of Imagine’s offering from time to time.

VAT: means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991.

The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.

1. DESCRIPTION OF SERVICE AND SUPPLY
1.1 FIBRE TO THE HOME (FTTH) SOLUTION
1.1.1 Imagine shall supply the Client with the service as detailed in their Subscription Form and this Agreement or via a form on the Imagine Web Site, the Imagine Customer Control Panel, the Imagine HelpDesk system or via any other subscription channel that Imagine makes available to the Customer.
1.1.2 Access to and continued provision of this service is not guaranteed and is based on a favourable feasibility evaluation and coverage on the FNO network and then also on continued availability of the service in an area. FTTH is a broadband best effort service – speeds and continuous connectivity are not guaranteed.
1.1.3 Installation, setup and activation of the physical fibre line is carried out by the FNO, not Imagine and once complete is billed to Imagine directly by the FNO. This installation is for the customer’s account and will be billed either up front or on cancellation if the service is cancelled within the first 12 months after the Effective Date. Imagine will activate the customer account and will provide the Customer with a free to use router (which will remain the property of Imagine) allowing connection to the fibre network ONT/OLT at a single point within the customer premises. Courier fees for the router delivery are specified at the time of signup.
1.1.4 Any damage to the FNO’s ONT equipment will be charged directly to the client at the rate charged by the FNO.
1.1.5 All FTTH accounts are uncapped, unshaped, managed solutions.
1.1.6 The standard FNO installation fee includes an Access Build length (from the nearest FNO connection point to the point in the client’s premises where the ONT will be placed) as determined by the FNO. Should additional cabling be required over and above the FNO’s standard installation allowance, the FNO will quote the client directly for the additional build and those costs will be payable by the client either to Imagine or to the FNO, depending on the FNO’s procedures. These additional installation costs are payable immediately upon invoice.
1.1.7 Home Use : The FTTH Solution is designed for residential / home use only. This definition is in place on the basis that the FTTH solution is a home/residential solution and is designed and managed for a specific requirement of 5 or less home users per account. The FTTH solution is not intended for business use.
1.1.7.1 Customers requiring a business solution can apply for a FTTB (Fibre to the Business) Solution where available.
1.1.7.2 Imagine reserves the right to immediately and without notice, suspend or terminate the service of any customer not adhering to these requirements.
1.1.8 Fixed IP’s are available on request on certain FNO networks and carry an additional cost
1.1.9 If the client moves premises, there is no guarantee that the service will be available at the client’s new premises. In such a case, full applicable cancellation fees will apply. If relocation on the same FNO network is possible, service migration fees will apply as per the costs levied by the FNO for this service. Should the client relocate within 12 months of the Effective Date, an additional installation / activation fee may be applicable.
1.1.10 The FTTH service is a managed service. This is to ensure that all uncapped users on the network are provided with the best possible usage experience. During peak times, priority may be provided to real time services such as streaming and voice while services such as NTTP, Peer-to-peer and Torrents may receive lower priority.
1.1.11 Upgrading or downgrading of a service will carry an administration fee (which will be dependant on the FNO network on which the client has their service). The client will be billed for the highest line speed used in a calendar month.
1.1.12 The standard optional router supplied by Imagine is not intended to provide coverage around the whole of the client’s house/premises. Additional routers/access points can be quoted on if required. The supplied router remains the property of Imagine at all times. Supplied routers may be new or refurbished.
1.1.13 A call out fee will be applicable for any call outs or on site visits for faults not relating to an Imagine network fault or any fault not directly caused by Imagine.
1.1.14 All fault and support requests must be logged via the Imagine Helpdesk (helpdesk@imagine.co.za) response to and assistance with any logged ticket can take up to a maximum of 24 working hours. Working hours are Monday to Friday (8am to 5pm) and Saturday (9am to 1pm).
1.1.15 Outages can and do occur on the FNO networks and the municipal electricity supply which will affect the service supplied by Imagine IPS. These are outside of Imagine’s control and do not constitute a defect or failure of the solution or a breach of this Agreement. Imagine shall use its reasonable endeavours to ensure that the services are made available to the Customer throughout the duration of this agreement, in so far as such elements are within the reasonable control of Imagine.

2. EFFECTIVE DATE AND DURATION
2.1.1 The Effective Date shall be the date on which the FNO confirms that the Customer link is operational. Should the Customer delay connection of the router for whatsoever reason, this will not delay the effective date of the contract. Billing will commence from the date that the FNO confirms an operational link.
2.1.2 This Agreement will continue for a minimum of the initial contract period in Section A of the Subscription Form and then automatically on a month-by-month basis until such time as one calendar month’s written notice of cancellation is received from the client via the Imagine Helpdesk (helpdesk@imagine.co.za).

3. INSTALLATION AND MAINTENANCE
3.1 Fibre Installation/activations will be effected by an FNO approved technician or team of technicians. The technician/s will liaise with a Customer appointed representative directly to effect the installation. Imagine are not part of the fibre installation process and must be notified upon completion by the customer in order to timeously configure and deliver the router. Failure to notify Imagine will result in delays in provisioning the fibre service. The Customer will, without unreasonable delay, provide the access and paperwork necessary to install and maintain all equipment required to provide an operational network link.
3.2 Maintenance of Imagine Equipment
3.2.1 Imagine will maintain all Imagine equipment. The Customer undertakes to provide free and full access, to all equipment to an Imagine approved technician should the need arise. The Customer will also provide free and full remote access to all Imagine equipment when requested to do so by Imagine.
3.2.2 The Customer undertakes to use the Imagine equipment and related software only in strict accordance with instructions from Imagine. The Customer will be liable for any repairs or replacement of Imagine equipment for damage caused other than by the normal and instructed use of the Imagine equipment or for loss of the equipment via theft.
3.3 Insurance of Equipment
The Customer will be responsible for insuring all Customer and Imagine equipment on the Customer’s site against any form of loss or damage from all risks. This insurance should be of a value equal to the full replacement value of the equipment.

4. CHARGES & PAYMENT & CANCELLATION
4.1 The Service will be paid in full, in advance by the Customer by means of a monthly debit order or via EFT as specified in the Subscription Form. Fees for the first month of the Service are charged on a prorata basis and must be paid, along with any once off fees applicable prior to the service being activated. Full fees for the service must reflect in Imagine’s account a minimum of 3 days before the end of the month prior to the service that is being paid for to avoid suspension of the account. Should the client’s account be overdue, any payments received will be allocated to the oldest due amounts first.
4.2 All Service/s provided are to be billed as of the Effective Date. In the event of a single Service consisting of a number of components, billing will commence for each respective component of that Service as and when each component of that Service goes live.
4.3 Customer is responsible for and agrees to pay to Imagine all fees for the Service/s in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
4.4 A bounced debit order will incur an administration fee of R250.00 (Incl. VAT).
4.5 Unless otherwise stipulated, all prices specified include VAT.
4.6 Unless otherwise agreed, invoicing will be processed and delivered in advance and all invoices for Services will be settled, in full, a minimum of 3 days in advance of using the Service.
4.6.1 Imagine will suspend or terminate any unpaid service until payment is received in full. If the Service is suspended a reconnection fee of R1,000.00 (Incl. VAT) will be payable by the customer. If the service is terminated due to non-payment, a full reconnection fee equivalent to the full FNO Installation, Activation and Setup fee will be due any payable (along with any other outstanding fees) prior to the service being reactivated.
4.7 In the event of any dispute arising as to the amount or calculation of any fee or charge to which Imagine is entitled, the dispute shall be referred for determination to Imagine’s auditors. They shall act as experts and their decision shall be final and binding on Imagine and Customer. The cost of the determination shall be paid on demand by the party against whom the determination is made, or as determined by the said auditors.
4.8 Any amount falling due for payment by Customer to Imagine in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two percent (2%) charged by ABSA Bank from time to time, monthly in arrears. Continued non-payment will have the account referred for collection to AGS Collection agency or any other collection agent appointed by Imagine. All costs associated with the collections process will be payable by the client and will be separate from the fees payable for the Imagine services.
4.9 Imagine shall be entitled to increase the monthly fees referred to in this Agreement with 30 days written notice to the client.
4.10 Invoices will be processed and sent via email to the Customer’s designated contact indicated in the Application/Subscription Form for the service, unless the Customer provides a written request (via email to helpdesk@imagine.co.za) for delivery of invoices to another email address.
4.11 Should this Agreement be cancelled by either party for whatsoever reason within the first 12 months following the Effective date, then the FNO’s fibre installation fee/drop fee/activation fee/setup fee will be immediately payable to Imagine by the client unless such fees have been paid for up front to Imagine. The FNO’s installation/ activation/ setup fees are separate to any Imagine activation fees specified in the Subscription form. The free to use router remains the property of Imagine and must be returned to Imagine upon cancellation in good working condition with all required peripherals either by way of courier or hand delivered to the Imagine offices failing which the router will be charged to the customer at the then current retail value. If courier is selected then the rate of R199 will be billed to the signatory/account holder for collection of this/these device/s.
4.12 Cancellations must be sent in writing to helpdesk@imagine.co.za
4.13 The subscription/contract/Agreement is not transferrable.

5. CUSTOMER’S AGREEMENTS & OBLIGATIONS
5.1 This Agreement applies to all accounts, sub-accounts, and alternative account names associated with the customer’s primary account. The customer is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account.
5.2 By completing the order it is deemed that consent has been received by the customer from the landlord, owner or body corporate for the installation of the service.
5.3 Imagine reserves the right to amend or refuse access to Services, pricing or commission structures.
5.4 Customer shall comply strictly with all restrictions imposed on computer networks through which any information and/or data transmitted by Customer passes.
5.5 Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
5.5.1 damages in any way Imagine’ technical infrastructure, network or any part thereof;
5.5.2 impairs or precludes Imagine from being able to provide the Service/s in a reasonable and business-like manner;
5.5.3 constitutes an abuse or malicious misuse of the Service/s;
5.6 or is calculated to have the above mentioned effect. In such an event, should Imagine incur expenses to remedy the situation, Imagine reserves the right to charge the Customer the amount necessary to cover Imagine’s additional expenditure. Notwithstanding the above, imagine reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
5.7 Customer is prohibited from modifying any equipment (including but not limited to router equipment) utilised by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such equipment.
5.8 Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Imagine, its servants, its agents or any other persons for whom it may be liable in law (and in whose favour this provision constitutes a stipulation alteri) if Imagine interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to Imagine or in the circumstances contemplated in clause 8.4 below.
5.9 Customer may not at any time use the Service in contravention of any South African law. In particular, Customer undertakes to familiarize itself and ensure that it is kept continuously appraised of all South African law in force from time to time which has any bearing on the Service and/or its use. Customer acknowledges that Imagine has no obligation to assist Customer in this regard.
5.10 The Customer in entering into this contract undertakes it will not re-sell or in any other way transfer the Imagine connection. Any attempt to do so, whether successful of not, will result in the service being terminated by Imagine, in which event the Customer will be liable for a termination fee.
5.11 The Customer undertakes to communicate with Imagine and its staff in a professional and courteous manner at all times. Failure to do so may result in termination of the service upon which any cancellation fees would be immediately due and payable by the customer.

6. COMMUNICATION: The Customer hereby agrees that Imagine may from time to time send you communications regarding (without being limited to) special offers/discounts which Imagine may negotiate for its members, operational changes such as maintenance or infrastructure upgrades that may affect the service and/or new services launched by Imagine from time to time as well as network outage notifications. Opting out of these notifications will remove The Customer from receiving any such notifications.

7. SECURITY
7.1 In order to ensure the security and reliable operation of the service to all Imagine Customers, Imagine hereby reserves the right to take whatever action Imagine finds necessary to preserve the security and reliability of its network.
7.2 The Customer may not utilise the service in any manner which may compromise the security of Imagine’s network or tamper with the service or the network in any manner whatsoever.

8. EXCLUSION OF LIABILITY
8.1 Except as otherwise expressly provided herein to the contrary, Imagine shall not be liable to Customer or any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Imagine or against Customer by any party, arising directly or indirectly out of the Service/s, their use, access to, withdrawal or suspension of or out of any information or materials provided or not provided, as the case may be.
8.2 Subject to clause 8.1 above, the entire liability of Imagine and Customer’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid or due by Customer under this Agreement for the period of 12 (twelve) months preceding Customer’s written notice to Imagine in respect of such claim.
8.3 Customer hereby indemnifies Imagine against and holds Imagine harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of Imagine is excluded in terms of clause 8.1 above.
8.4 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time, and all liability on the part of Imagine of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded, and the provisions of clause 8.1 above shall apply mutatis mutandis to such exclusion.
8.5 Where the Service/s provided include Hosting Services, then, notwithstanding anything to the contrary contained in this Agreement, Imagine reserves the right in its absolute discretion and after the receipt by Imagine of any complaint from any governmental department, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of Imagine’ intention to remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, Imagine shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Web Hosting Services of such Customer. Any removal or termination by Imagine shall in no way constitute a breach by Imagine of this Agreement.

9. DOCUMENTATION
9.1 Any specifications, descriptive matter, drawings and other documents which may be furnished by Imagine to Customer from time to time:
9.2 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement;
9.3 shall remain the property of Imagine and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in Imagine. Such documents shall be returned to Imagine on demand.

10. BREACH
10.1 If the Customer hereto:
10.1.1 fails to make payment in full for a Service prior to use of that Service or;
10.1.2 where agreed, is invoiced after the use of Service and fails to make payment in full to Imagine within 7 (seven) days of receipt of invoice;
10.1.3 breaches any of the terms or conditions of this Agreement and fails to remedy such breach, as the case may be, within 7 (seven) days after the receipt of written notice