Polka Internet Access and Installment Sales Agreement
A. COMPONENTS OF THIS AGREEMENT
1. You are required to enter into this Agreement in order to receive the polka Internet Access Service, bundled with a PC or notebook of your choice, as selected by you in the Application Form.
2. The Agreement consists of the following:
2.1 the Application Form;
2.2 polka Internet Access Service Terms (Part B);
2.3 Installment Sale Terms (Part C); and
2.4 General Terms (Part D).
B. polka INTERNET ACCESS SERVICE TERMS
1 Introduction
1.1 polka sells access to its network on a subscription basis which facilitates use of the world wide web, electronic mail, FTP and USENET via a dial-up connection (“polka Internet Access Service”).
1.2 By using or subscribing to the polka Internet Access Service you agree that you have read, understand and are bound by the General Terms and Conditions, other notices published under “General” on our Legal Notices Webpage, the polka dial-up terms on the aforementioned page, as well as the terms and conditions contained herein (collectively “the polka Internet Access Service Terms”).
1.3 To the extent that there is any contradiction between the General Terms and Conditions, the polka dial-up terms and the terms and conditions contained herein, the following order of precedence shall apply: (1) the terms and conditions contained herein; (2) the polka dial-up terms; and (3) the General Terms and Conditions;
2 Interpretation
2.1 Unless the context clearly indicates to the contrary, any term defined in the General Terms and Conditions or the polka dial-up terms shall bear the same meaning when used herein.
2.2 Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto-
2.2.1 “Agreement” means the contract between us which consists of the parts identified in A.2. above;
2.2.2 "Application Form" means the document in terms of which you apply for the Service and provide your personal and related information to us;
2.2.3 “Contract Period” means a period of 36 (thirty six) months calculated from the Activation Date;
2.2.4 “Service” means the polka Internet Access Service described in clause 1.1 above;
2.2.5 “Subscription Fee” means the monthly service charge in consideration of the Service as recorded in the Application Form;
2.2.6 “Telephone Rental and Call Charges” means the amounts due by you to your telephone network operator for the rental of your fixed line telephone and calls made by using that line; and
2.2.7 “Usage Fees” means the fees charged to your account based on the aggregate of the time spent by you on-line whilst making use of the polka Internet Access Service, at the rates as set out in polka's standard price list, as amended from time, on our Website.
3 Duration and Termination of the polka Internet Access Service Terms
3.1 Subject to the provisions of clause 3.8 of the General Terms and Conditions, this Agreement will commence on the Effective Date and will , continue for the duration of the Contract Period. The Contract Period will be calculated from the Activation Date.
3.2 Either party may terminate the polka Internet Access Service Terms at the end of the Contract Period by giving no more than 1 (one) calendar months prior notice in writing to the other party and which notice must be given no later than 1 (one) calendar month prior to the expiry of the Contract Period. The polka Internet Access Service Terms will under these circumstances terminate on the last day of the Contract Period.
3.3 If neither party has given notice as contemplated in clause 3.2 above, the polka Internet Access Service shall continue indefinitely thereafter on the same terms and conditions, provided that either party shall be entitled to terminate the polka Internet Access Service Terms by giving 1 (one) calendar months notice in writing to the other.
3.4 You agree to pay the Subscription Fee for the remainder of the Contract Period, as well as any other amounts due by you to us under these polka Internet Access Service Terms, in the event of the early termination by you of the polka Internet Access Service Terms (i.e. prior to the expiry of the Contract Period). Early termination will be accepted on 1 (one) calendar months prior written notice to us. You will under such circumstances continue to be bound by the Installment Sale Terms referred to in clause 2.3 for the duration thereof, subject to clause 10 of part C.
3.5 Upon the termination of the polka Internet Access Service Terms, your use of the polka Internet Access Service shall terminate. However, in the event that you continue to use the polka Internet Access Service following a termination, the polka Internet Access Service Terms will apply and you shall be liable to make payment of the Subscription and Usage Fees to us. This shall in no way constitute a revival of the agreement between us and polka shall be entitled to terminate the polka Internet Access Service without notice to you.
3.6 Where the polka Internet Access Service is suspended by polka in terms of clause 8.5.3 of the General Terms and Conditions or as a result of a breach by you of the polka Internet Access Service Terms, you acknowledge that you will forfeit your right to access and/or use the Service, but that you shall still be liable to pay the Subscription Fees due to us during such suspension.
4 Payment
4.1 You shall for the duration of the Contract Period pay polka:
4.1.1 the Subscription Fee monthly in advance; and
4.1.2 Usage Fees, if any, monthly in arrears.
4.2 You will effect payment of all Telephone Rental and Call Charges directly to your telephone network operator.
C. INSTALLMENT SALE TERMS
1 Introduction
1.1 The Installment Sale Terms comprise the terms and conditions under which we will sell the PC or Notebook selected by you in the Application Form to you.
1.2 You may not buy a PC or Notebook from us under the Installment Sale Terms, without simultaneously subscribing to the polka Internet Access Service under the polka Internet Access Service Terms contained in Part B.
1.3 To the extent that there is any contradiction between the General Terms and Conditions, the polka Internet Access Service Terms and these Installment Sale Terms, the following order of precedence shall apply: (1) the Installment Sale Terms; (2) the polka Internet Access Service Terms; and (3) the General Terms and Conditions.
2 Interpretation
2.1 In these Installment Sale Terms, unless the context clearly shows a contrary intention:
2.1.1 "Business Day" means every day of the week except Saturdays, Sundays and official public holidays of the Republic of South Africa;
2.1.2 "Business Hours" means 08h00 to 1700 on a Business Day;
2.1.3 "Designated Areas" means those towns to which IS will deliver the Units itself. A list of the Designated Areas can be accessed on our website;
2.1.4 "IS" means Incredible Solutions SA (Pty) Ltd, which is polka’s preferred hardware supplier;
2.1.5 "PC" means a personal computer or a notebook depending upon the product selection made by you on the Application Form;
2.1.6 "Prepayment Fee" means the upfront, non-refundable amount referred to in 3.1 which will be allocated towards the liquidation of the Principal Debt;
2.1.7 "Purchase Price" means the Principal Debt, interest and finance charges;
2.1.8 "Principal Debt" means the selling price of the Unit;
2.1.9 "Unit" means the PC Bundle Product Option selected by you in the Application Form and items other than the PC, if any, which form part of the option concerned;
2.1.10 "Warranty" means the manufacturer’s warranty which accompanies each Unit, a copy of which is included with the packaging of a Unit; and
2.1.11 "Warranty Claim" means any claim resulting from a hardware failure which is covered by the Warranty.
3 Suspensive Condition for the conclusion of the Agreement
3.1 You are required to pay us a Pre-Payment Fee of R 350.00 (three hundred and fifty Rand) (inclusive of VAT) as a condition for the conclusion of this Agreement.
3.2 The pre-payment fee will be allocated as provided for in clause 8.4 of this Part C.
4 Scope of the Installment Sale
4.1 We will make the Unit available to you subject to the following terms and conditions:
4.1.1 We will advance credit to you in order to facilitate the purchase.
4.1.2 The total value of the credit will be made available to you on the Activation Date.
4.1.3 The Principal Debt is deferred and is to be paid in monthly installments as provided for below (“Installment Sale”).
4.1.4 The Installment Sale is subject to a variable interest rate.
4.1.5 Possession and use of the Unit is transferred to you upon delivery of the Unit, from which time the risk in and to the Unit will vest with you.
4.1.6 Ownership of the Unit will only pass to you once you have settled the Purchase Price in full.
5. polka’s obligations:
5.1 We will upon receipt of the signed Application Form and the pre-payment fee as provided for in clause 3:
5.1.1 allocate a user name, email address and password to you in order to access and use the polka Internet Access Service on the Activation Date; and
5.1.2 submit an order to IS to deliver the Unit to you.
5.2 You will be informed telephonically of proposed delivery dates and times.
5.3 Subject to the provisions of clause 5.2 of the General Terms and Conditions, IS or its duly appointed and authorized courier service, will use reasonable commercial endeavors to deliver the Unit to you at your chosen delivery address within 7 (seven) days of the Activation Date,. Delivery will take place during Business Hours.
5.4 The Unit will be equipped with operating system software.
5.5 If the Unit is a Notebook, same will be assembled, tested and resealed prior to the delivery date.
5.6 If the Unit is a PC and you live within a Designated Area, IS will assemble and set-up the PC for you.
5.7 If you live outside the Designated Areas, the Unit will be delivered to you by a courier company. Under such circumstances, you will be required to contact the Call Centre to assist you with the set-up of your PC.
6. Warranty in respect of the Unit
6.1 The warranty is valid for a period of 12 (twelve) months commencing from the Activation Date.
6.2 The warranty covers only the hardware components of your Unit. Accordingly, only defective hardware components will be replaced or repaired in terms of the warranty.
6.3 You are required to comply with the provisions set out in the Warranty in relation to inter alia the use and maintenance of your Unit. Failure to comply with such provisions may invalidate the Warranty.
6.4 Your Unit is subject to one of 3 (three) warranty services:
6.4.1 PC Option 1, Option 2, Option 3 and Option 4:On site warranty service;
6.4.2 Notebook Option 1 and Option 2:Carry in and repair warranty service; and
6.4.3 Out of Box warranty as particularised in clause 5.6 below.
6.5 In the event that the on site warranty service is required, you will inform IS or polka of the warranty claim within a reasonable period of time:
6.5.1 IS will determine, either remotely or by a service call at your location, whether the defect can be repaired.
6.5.2 If IS is liable for a warranty claim, IS shall repair the Unit.
6.5.3 If the Unit is not capable of being repaired, IS will replace the Unit with another Unit which performs substantially the same as your Unit; and will give you another Warranty in respect of the replacement Unit. The warranty in respect of the replacement unit will be subject to the same terms and conditions which are applicable to warranties in these Installment Sale Terms.
6.5.4 The cost of transport, repair, delivery and insurance forms part of the Warranty.
6.6 In the event that a carry in and repair warranty service is required, you will deliver the defective Unit to an authorized IS service location for repair.
6.6.1 You will be liable for the cost incurred in the transport, delivery to and collection of the Unit from IS.
6.6.2 IS will carry the cost of repair of the Unit.
6.6.3 If IS not in a position to repair the Unit, IS will replace the Unit with another Unit which performs substantially the same as your Unit; and will give you a warranty in respect of the replacement Unit. The warranty in respect of the replacement unit will be subject to the same terms and conditions which are applicable to warranties in these Installment Sale Terms.
6.7 IS warrants the functionality of the Unit upon delivery thereof. In the event that the Unit is defective, you will report the claim to IS within 5 (five) days of delivery of the Unit to you:
6.7.1 IS will collect the defective Unit from your designated address to attend to the repair thereof.
6.7.2 IS will deliver the repaired Unit to you at your designated address.
6.7.3 IS will carry the cost of collection, repair, insurance, and delivery to you under these circumstances.
6.7.4 If IS is not in a position to repair the Unit, IS will replace the Unit with another Unit which performs substantially the same as your Unit; and will give you a warranty in respect of that the replacement Unit The warranty in respect of the replacement unit will be subject to the same terms and conditions which are applicable to warranties in these Installment Sale Terms.
7. Your obligations
7.1 You must have a Telkom line at the location at which you intend to receive the polka Internet Access Service on a permanent or a semi-permanent basis (“Address of Delivery”), in order to gain access to the polka Internet Access Service.
7.2 You are required to acknowledge receipt of the Unit by affixing your signature to the delivery note which will be presented to you.
7.3 You will also be required to furnish IS with a copy of your ID.
7.4 If you are not taking receipt of the Unit yourself, you must furnish the person who will accept delivery on your behalf, with a letter of authorization signed by you and a copy of your identity document. The aforementioned documentation will constitute proof of delivery to you. IS will be entitled to retain the aforementioned copy of your identity document for record keeping purposes, and will further be entitled to make a copy available to Polka upon request.
7.5 You are required to keep the Unit in your possession or under your control at all times and you must maintain the Unit in good working condition at your expense. In this regard, you are required to comply with the “Customer’s Responsibilities” which forms part of the Warranty.
7.6 If the Unit is not kept at the Address of Delivery, then you are required to inform us where it is kept.
7.7 You may not give the Unit to another person or sell, let, loan, pledge or transfer the Unit to another person without our prior written consent and you may not allow the Unit to become subject of an attachment or any legal claim by a third party.
7.8 You will allow us to inspect the Unit at any reasonable time and arrange for access to the Unit if necessary.
8. Purchase Price
8.1 The Purchase Price of your Unit depends on the Option you have chosen being as follows:
8.1.1 PC Option 1 R 6 264.00
8.1.2 PC Option 2 R 7 344.00
8.1.3 PC Option 3 R 4 464.00
8.1.4 PC Option 4 R 9 504.00
8.1.5 Notebook Option 1 R 8 064
8.1.6 Notebook Option 2 R 9144
8.2 The monthly minimum installment on the Purchase Price of your Unit including interest charges, but excluding the Subscription Fee and Usage Fees, if any, is as follows:
8.2.1 PC Option 1 R174.00
8.2.2 PC Option 2 R204.00
8.2.3 PC Option 3 R124.00
8.2.4 PC Option 4 R264.00
8.2.5 Notebook Option 1 R224.00
8.2.6 Notebook Option 2 R254.00
8.3 The monthly minimum installment excludes your Subscription Fee.
8.4 The Prepayment Fee will be appropriated towards the reduction of the Purchase Price during the first calendar month following the signature of the Application Form.
8.5 The Purchase Price is inclusive of VAT.
8.6 Polka reserves the right to adjust the finance charges in accordance with the provisions of the applicable legislation from time to time.
9. Payment Terms
9.1 You are required to pay the Pre-Payment Fee on or before the Activation Date into our bank account, the details of which are as follows:
Polka
Bank: Standard Bank
Branch : Tyger Manor
Branch Code : 050410
Account number: 071927182
Reference: Your Customer Number
9.2 You are required to make payment to us of 36 (thirty six) monthly installments.
9.3 The first installment will be due on the first day of the calendar month following the Activation Date.
9.4 The last installment will be due on the first day of the 36th month following the Activation Date.
9.5 Your monthly installment is due and payable in advance, by way of a direct debit order, as provided for in clause 8.3 of the General Terms and Conditions.
9.6 Penalty interest will be charged on any arrear Installment, at the same interest rate which we charge you on the Principal Debt.
9.7 We will deduct your Subscription Fee and Installment together at the beginning of each calendar month.
9.8 You are entitled to settle the Purchase Price subject to giving us 1 (one) months prior written notice, on the understanding that you will be liable to subscribe to the polka Internet Access Service for a minimum period of 12 (twelve) months. After the expiry of the 12th month period, your subscription will be extended on a month to month basis, subject to termination on 1 (one) month’s prior written notice by either party.
The settlement amount will consist of the following:
9.8.1 the unpaid balance of the Principal Debt;
9.8.2 the unpaid interest charges; and
9.8.3 all other fees payable by you up and to the settlement date.
10 Duration
These Installment Sale Terms will commence on the Effective Date and will continue for an uninterrupted period of 36 (thirty six) months. Notwithstanding the Effective Date, the aforesaid 36 (thirty six) month period will commence and be calculated from the Activation Date, and will continue concurrently with the polka Internet Access Service Terms, unless the entire outstanding balance of the Purchase Price is settled by you prior to the expiry of the 36 (thirty six) month period of the Installment Sale Terms, or if these Installment Sale Terms is terminated for any reason. If these Installment Sale Terms are terminated you will remain bound by the polka Internet Access Service Terms for the duration thereof, subject to clause 3.4 of part B.
D. GENERAL TERMS OF THE AGREEMENT
1. Breach
1.1 Should you be in breach of any provision of this Agreement, then we shall be entitled, without prejudice to any other rights that we may have at law or under this Agreement, to:
1.1.1 in the case of a breach of clause 8.5 of the General Terms and Conditions in respect of your non-payment of the Subscription Fee, Usage Fees or Installment suspend your access to the polka Internet Access Service without notice, until such time as any outstanding amount has been paid in full (under which circumstances we reserve the right to charge a reconnection fee, the amount of which will be conveyed to you at the time of reconnection); or
1.1.2 in the case of a breach of clause 8.5 of the General Terms and Conditions in respect of your non-payment of an Installment, take the Unit back, sell the Unit, keep such payments as you have made, and claim the balance, if any, from you as damages; or
1.1.3 terminate the Agreement with immediate effect, retain all amounts already paid, claim immediate payment of all outstanding amounts due by you; or
1.1.4 claim damages or specific performance or both.
1.2 If the Unit is disposed of by you, lost or stolen and not recovered within 21 (twenty one) days, or is destroyed or damaged beyond economic repair, then this Agreement will terminate with immediate effect and the provisions of clause 1.1.3 of this Part D will apply.