Polka Wireless Broadband Terms and Conditions (iBurst)
1 Introduction
1.1 By using or subscribing to the iBurst Service you agree that you have read, understand and are bound by:
1.1.1. the General Terms and Conditions and other notices under “General” on our Legal Notices Webpage; and
1.1.2 the terms that apply specifically to the iBurst Service, as set out herein (“iBurst Service Terms”).
(collectively “the Terms”)
1.2 Your use of the iBurst Service indicates your acceptance without modification of the Terms, which will constitute a legal agreement between you and Polka.
1.3 Unless the context clearly indicates the contrary, any term defined in the General Terms and Conditions when used herein, shall bear the same meaning as defined in the General Terms and Conditions.
2. Interpretation
2. 1. Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto-
2.1.1 “Agreement” means the Application Form and the terms and conditions referred to in clause 1.1 above;
2.1.2 "Application Form" means the document in terms of which you apply for the Service, select your desired Cap and provide personal and other information to us;
2.1.3 “Device” means the iBurst equipment which will be sold to you as envisaged in this Agreement depending on the product or service election made by you in the Application Form (under Step 1);
2.1.4 “Network” means
2.1.4.1 the portion of the radio frequency spectrum that has been assigned to the Network Operator for the purposes of providing wireless Network Coverage for the purposes of providing electronic communications services and electronic communications network services as envisaged in the Electronic Communications Act; and
2.1.4.2 the wireless platform, owned and managed by the Network Operator;
2.1.5 “Network Coverage” means the geographical area within which the Service can be accessed and used by you;
2.1.6 “Network Operator” means Wireless Business Solutions (Pty) Ltd trading as iBurst;
2.1.7 “Product Cap” means the bandwidth/data limit selected by you in the Application Form;
2.1.8 “Service” means the polka Wireless Broadband – iBurst service selected by you on the Application Form, which we will render to you to provide you with high-speed Internet connectivity; and
2.1.9 “Service Charge” means the monthly subscription fee paid by you to us in consideration for the Service as recorded on the Application Form.
3. Duration and Termination of the Agreement
3.1. Subject to the provisions of clause 3.8 of the General Terms and Conditions, this Agreement commences on the Effective Date and will continue for the duration of the initial period selected by you in the Application Form (hereinafter referred to as the "Initial Period"). The Initial Period will commence on the Activation Date.
3.2. Either party may terminate the Agreement by giving 1 (one) calendar months notice in writing to the other prior to the expiry of the Initial Period, whereafter the Agreement will terminate on the last day of the Initial Period.
3.3. If neither party has given notice as contemplated in clause 3.2 above, the Service shall continue indefinitely after the expiry of the Initial Period on the same terms and conditions, provided that either party shall be entitled to terminate the Agreement by giving 1 (one) calendar months notice in writing whereafter the Agreement will terminate on the expiry of the 1 (one) calendar months notice period.
3.4. You agree to pay the Service Charge for the remainder of the Initial Period, as well as any other amounts due to us by you under this Agreement, in the event of the early termination by you of the Agreement.
3.5 Upon the termination of this agreement, your use of the Service shall terminate. However, in the event that you continue to use the Service following a termination, these terms and conditions will apply and you shall be liable to pay the full Service Charge to Polka. This shall in no way constitute a revival of the agreement between the parties and polka shall be entitled to terminate the Service without notice to you.
3.6. Where the 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 Agreement, you acknowledge that you will forfeit your access to and/or use of the Service, but that you shall still be liable to pay the Service Charges due to us during such suspension.
4. Service Charges
4.1. You shall for the duration of the Initial Period pay the Services Charge to polka monthly in arrears.
4.2. Any other charges, including those for a Booster referred to below, shall be billed in arrears.
5. Undertakings and Disclaimer
5.1. polka undertakes to use its reasonable endeavors to procure that the Network Operator provides you with the Service on a 24 (twenty four) hours, 7 (seven) days a week basis for the duration of the term of the Agreement.
5.2. Although polka uses reasonable care and diligence to ensure that the Service is available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable, polka does not warrant, represent or in any way guarantee either expressly or by implication that the Service is, or will be available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable at any or all times. Polka furthermore does not warrant, represent or in any way guarantee, either expressly or by implication the merchantability or fitness of the Service for a particular purpose. You therefore agree that the Service is rendered "as is" and “as available” and is used at your own discretion and risk.
5.3. Due to the fact that the Service is provided by the Network Operator, you acknowledge that:
5.3.1 the following circumstances and events, which are beyond Polka’s control, may impact upon your use of the Service and/or the quality, availability and Network Coverage of the Service:
5.3.1.1 use of the Service by other customers;
5.3.1.2 the Internet;
5.3.1.3 the Network;
5.3.1.4 the Network Coverage;
5.3.1.5 limitations upon national and/or international bandwidth capacity;
5.3.1.6 telecommunication service operator failures, which includes telecommunication links and line failures;
5.3.1.7 mobile telecommunication service operator failures;
5.3.1.8 mobile network failures;
5.3.1.9 wireless network failures;
5.3.1.10 operating systems failures;
5.3.1.11 access technology failures;
5.3.1.12 quality of service of telecommunication links or lines ;
5.3.1.13 quality of service of telecommunication links or lines provided by the Network Operator;
5.3.1.14 quality of wireless telecommunications links, quality of the Network and Network Coverage;
5.3.1.15 physical features such as buildings and underpasses;
5.3.1.16 atmospheric conditions including without limitation bad weather conditions and other causes of interference;
5.3.1.17 any action, omission and/or failure by you and/or your systems, software, network and/or equipment
which has an impact on the Service; and
5.3.1.18 any other action, omission and/or failure not within Polka’s control which has an impact on the Service.
5.4 You further acknowledge that:
5.4.1 polka does not warrant, represent nor in any way guarantee the quality and availability of the Network Coverage for the Service; and
5.4.2 the quality and availability of the Network Coverage for the Service shall be limited to that provided by the Network Operator.
6. Terms and Conditions Specific to the Service
6.1. Polka shall as part of the Service provide you with Internet connectivity limited to the Product Cap selected by you in the Application Form, together with any value added services provided by polka in its discretion from time to time.
6.2. You acknowledge that:
6.2.1 a Device is required to access and use the Service;
6.2.2 the Service shall be provided subject to the Network Operator’s use policies which are accessible at http://www.iburst.co.za (“iBurst acceptable use policies);
6.2.3 unused Product Cap will be carried over for one month. Any unused Product Cap which is carried over to the next month will expire at the end of that month. It is specifically agreed that should you not have used the carried over cap fully, you shall not be entitled to any credit and/or refund for the unutilised portion.
6.3. Without limiting the General Terms and Conditions and/or iBurst's acceptable use policies, you:
6.3.1 agree not to use the Service for any unlawful, abusive or any other purpose including, without limitation, using the Service in any manner that
6.3.1.1 interferes with Polka’s and/or the Network Operator’s ability to provide the Service or any other service to their customers;
6.3.1.2 interferes with the quality and/or availability of the Network and/or
6.3.1.3 infringes upon any applicable legislation and/or regulation including without limitation the Electronic Communications Act;
6.3.2. agree not to use the Service to infringe the intellectual property rights or other proprietary rights of polka and/or any other person, or to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
6.3.3 acknowledge that you may downgrade the Service on 1 (one) calendar months notice to us, subject to payment of a penalty determined by polka from time to time;
6.3.4 acknowledge that you may upgrade the Service at no additional cost, on 1 (one) calendar month prior notice to us; and
6.3.6 undertake to obtain any approval or authority imposed by a competent authority or body (including without limitation body corporates, provincial and local municipalities) relating to the installation of the Device, the supply of the Service to you at your address, and matters related thereto. In this regard, you indemnify polka against any claims, damages or liabilities instituted against, suffered or incurred by polka arising from your failure to obtain such approvals and authorities.
6.4. The Device
6.4.1. polka shall sell the Device to you and you accept such sale.
6.4.2. You acknowledge that:
6.4.2.1 ownership in and to the Device shall vest with polka until the termination of the Initial Period by virtue of the effluxion of time and/or the fulfillment of all your obligations under this Agreement;
6.4.2.2 subject to the provisions of clause 5 of the General Terms and Conditions, polka shall use its reasonable endeavors to comply with the agreed delivery dates;
6.4.2.3 delivery shall be deemed to have occurred when the Device has been delivered to you at the delivery address specified in the Application Form, at which time the risk of loss in or damage to the Device shall pass to you;
6.4.2.4 it is your responsibility to take out insurance in respect of the Device;
6.4.2.5 the Device will be activated by the Network Operator prior to the delivery date;
6.4.2.6 until ownership passes to you as envisaged in clause 6.4.2.1 above, you shall not do or omit to do anything which may adversely affect Polka’s proprietary rights in and to the Device. Without limiting the generality of the aforegoing, you shall notify your landlord (if applicable) that the Device is owned by polka and provide polka upon reasonable written request, with evidence of all necessary steps taken;
6.4.2.7. until ownership passes to you as envisaged in clause 6.4.2.1 above, you shall at your own costs and expense take all necessary steps to keep the Device free from attachment, hypothec or other legal charge or process and provide polka upon reasonable written request, with evidence of all necessary steps taken;
6.4.2.8. any warranty pertaining to the Device shall be limited to a period of 12 (twelve) months calculated from the date of delivery. Should you discover any fault or defect in the Device, you shall within 3 (three) days of delivery return the Device to polka or its service provider in the
same condition and packaging along with proof of receipt. polka will under these circumstances replace the faulty Device; and
6.4.2.9 you shall not engage in any action which contravenes or voids the supplier’s terms of warranty or guarantee. In the event that you engage in any action which contravenes or voids the supplier’s warranty, you shall bear the costs of any repairs, replacements or extended warranties and guarantees.
6.4.3. You shall:
6.4.3.1 be responsible for the installation of the Device;
6.4.3.2 ensure that such installation is in accordance with the supplier’s instructions;
6.4.3.3 ensure that the usage of such Device is in accordance with the supplier's instructions and not contravene and/or void the supplier’s warranty or guarantee. In the event that your usage contravenes and/or voids the supplier’s warranty which then results in the unavailability of the Service and/or any component thereof, polka shall (without limiting the generality of the General Terms and Conditions) not be held responsible for any direct and/or indirect loss, damage or any costs suffered by you as a result thereof, including (without limitation) the unavailability of the Service; and
6.4.3.4. upon becoming the owner of the Device, you shall be fully responsible for the Device and you shall not have any claim of whatever nature for the breakdown and/ or failure of the Device in any manner whatsoever against Polka.
6.5. Booster
6.5.1 KickStart and Playa Packages
6.5.1.1. You acknowledge that in order to avoid an interruption of the Service, you are advised to top up your Product Cap limit by purchasing Booster from Polka. You acknowledge that the purchase of a Booster must be done prior to reaching your selected Product Cap, failing which the Service will automatically be suspended until the end of the month.
6.5.2. Giga, Pro, Xtreme and Addict Packages
6.5.2.1. Should you exceed your Product Cap, polka shall throttle your Service until you purchase another Product Cap. You acknowledge that the Service will under these circumstances be degraded until you have bought a Booster, or until the next month.
6.5.3. A Booster shall commence once you reach your Product Cap. If you do not use the entire Booster in the month it was purchased, it shall continue until the last day of the following calendar month after which the Booster will automatically terminate irrespective of whether you have utilised it fully or not. It is specifically agreed that should you not have used the Booster fully you shall not be entitled to any credit and/or refund for the unutilised portion.
6.5.4. polka may in its reasonable discretion limit the number of Boosters that you are allowed to purchase during a calendar month.
6.6. Dashboard
6.6.1. Included as part of the Service is a dashboard which is a tool that provides you with the ability to:
6.6.1.1 connect to the Internet;
6.6.1.2 monitor your Internet traffic usage; and
6.6.1.3 access other services
(hereinafter referred to as the “Dashboard”).
6.6.2. You acknowledge and agree that polka does not
6.6.2.1 maintain and/or manage the Dashboard; and
6.6.2.2 ensure that the usage report produced by the Dashboard is up-to-date, current, and/or correct;
6.6.3. you acknowledge that the Network Operator’s monitoring equipment shall be used to monitor and measure your Internet traffic usage and that such equipment shall be the sole source to determine usage and/or whether you have exceeded your Product Cap.
6.7. Dial up Access
6.7.1. You agree that if you have selected dial up access on the Application Form then the fee for dial up access, as published on our website, will be payable irrespective of whether you actually use the dial-up service or not.
7. Value Added Services
The terms and conditions that govern the use of any value added services may be accessed at http//www.polka.co.za/
8. Termination of Network Operator Agreement
You agree that if the agreement between polka and the Network Operator terminates then polka may, at its discretion:
8.1 terminate the provisioning of the Service without liability to you;
8.2 transfer the provisioning of the Service to a third party service provider; or
8.3 assign this agreement to the Network Operator.