Polka Wireless Broadband Terms and Conditions
(MTN 3G/HSDPA)
1. Introduction
1.1 By using or subscribing to the 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 Service, as set out herein (“MTN
Service Terms”).
(collectively “the Terms”)
1.2 Your use of the Service indicates your acceptance without modification of the
Terms, which will constitute a legal agreement between you and Polka. If you do not want to be bound by the Terms, you must not use or subscribe to the Service.
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
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 Base Cap and provide personal and other
information to us;
2.1.3 "Billing Cycle" means the period of time for which we will charge you for the
use of the Service, commencing on the third day of each month, and
terminating on the second day of the following month;
2.1.4 "Blacklist" means the disablement, by electronic or other means, of your SIM
and/or USB Modem, thereby preventing the unauthorised use thereof;
2.1.5 "Contract Period" means the period of your subscription to the Service, as
recorded in the Application Form, which commences on the Activation Date;
2.1.6 "Customer Details" includes your first name, surname, residential address,
terminal equipment identity numbers and ICC-ID;
2.1.7 "Equipment" means the hardware that you require to access the System and
may include without limitation a USB Modem, router and such other devices as
may be required for this purpose from time to time;
2.1.8 "Greylist" means the flagging, on the System, of a SIM and/or USB Modem,
for purposes of the identification of your Subscriber Number in order to facilitate
the possible tracing and recovery of your SIM and/or USB Modem under
circumstances where your SIM and/or USB have been stolen;
2.1.9 "ICC-ID" means the international card configuration, which is an identity
number unique to each SIM card and pre-programmed into each SIM card;
2.1.10 "Monthly Access Fee" means the fee as defined in clause 9.1.2 and selected
by you on the Application Form;
2.1.11 "Network" means the mobile cellular electronic communications network
operated by the Network Operator;
2.1.12 "Network Operator" means Mobile Telephone Networks (Pty) Ltd,
Registration Number 1993/001436/07) (“MTN”), which supplies access to
the Network;
2.1.13 "Service" means the MTN wireless network data services provided to you
under this Agreement;
2.1.14 "Service Charges" means the consideration due and payable to us by you for the Service as provided for in clause 9 below;
2.1.15 "SIM Card" means your subscriber identification module (incorporating an ICC ID and Subscriber Number), which enables you to access the System;
2.1.16 "Subscriber Number or IMSI" means the International Mobile Station
Identity, which is a number unique to each SIM Card; and used to identify a
subscriber;
2.1.17 "System" means the digital cellular mobile telecommunications system of the
Network Operator;
2.1.18 "USB Modem" means the device used to access the Network; and
2.1.19 "Usage Charges" means the charges as defined in clause 9.1.3.
3. Duration and Termination
3.1. Subject to the provisions of clause 3.8 of the General Terms and Conditions, the Agreement shall commence on the Effective Date and will, remain in force for the duration of the Contract Period.
3.2. The Agreement shall continue indefinitely on a month to month basis upon the expiry of the Contract Period (or any Renewal Period if applicable), subject to termination by either party on 60 (sixty) days written notice to the other, which notice may be given during the last 60 (sixty) days of the Contract Period (or any Renewal Period if applicable).
3.3. If the Agreement is renewed for a fixed term (“a Renewal Period”), the Agreement will endure for the duration of the Renewal Period.
3.4. In the event of termination by you prior to the expiry of the Contract Period, or the Renewal Period, as the case may be, we will be entitled to claim payment from you for the balance of the Monthly Access Fees due under the Agreement, as well as any other outstanding fees or charges. Early termination will be accepted on 60 (sixty) days prior written notice to us.
3.5. Upon the termination of the Agreement, your use of the Service shall terminate. However, in the event that you continue to use the Service notwithstanding termination, these terms and conditions will continue to apply and you shall be liable to make payment to Polka of the applicable Service Fee. Your continued use of the Service shall in no way constitute a revival of the Agreement, and Polka reserves the right to terminate the Service without notice to you, as and when Polka becomes aware of your continued use of the Service under such circumstances.
3.6 If 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 right to access and/or use of the Service, but that you shall still be liable to pay the Monthly Access Fee due to us during such suspension.
4. Polka’s Obligations
Polka will:
4.1. arrange for the delivery of the USB Modem and SIM Card to you, free of charge;
4.2. provide you with Internet Connectivity according to your selection in the Application Form( e.g. 150 MB, 350 MB, 500MB etc);
4.3. make Call Centre support available to you; and
4.4. promptly upon notification from you lock or temporarily disconnect a lost, stolen, damaged, or destroyed SIM Card.
5. Value Added Services
5.1 Polka will provide you with the value added services listed below free of charge:
5.1.1. 100 MB Mailbox and Polka e-mail address;
5.1.1.1. The mailbox service is provided to you subject to the terms and conditions applicable to mailboxes which are available at:
http://www.Polka.co.za/NewPolkaLegalNotices/tabid/1419/Default.aspx
5.1.1.2. You accept full responsibility for the content of any e-mail sent and/or received through the Service.
5.1.1.3. In order to keep our mail servers efficient, the following restrictions will apply to your mailbox:
5.1.1.3.1. any mail that has not been retrieved (downloaded) from our mail server after 90 (ninety) days, will be purged unless you have stored the mail on a folder you have created on the Polka message centre;
5.1.1.3.2. if you exceed your mailbox size, no new mail or attachments will be delivered to your mailbox. You will, however, be able to receive mail again if you either delete mail and/or attachments from your mailbox or by purchasing additional mailbox space;
5.1.1.3.3. subject to any other technical limitations, Polka restricts the size of an individual mail, sent or received, to 10Mb per mail; and
5.1.1.3.4. the number of recipients on your mailing list may not exceed 20 (twenty).
5.1.2. 24/7 Unlimited access to the internet;
5.1.3. Polka Technical Support;
5.1.4. Virus scan and Anti spam protection
5.1.4.1. The Service provides you with a virus scan for incoming and outgoing emails, as well as an anti spam protection service.
5.1.4.2. You acknowledge that Polka does not warrant, represent and/or guarantee the efficiency of the virus scan or that the spamming of e-mails, content and/or data sent through the Service will be successful.
5.2. It lies within the discretion of Polka to terminate the provision of one or more of the value added services during the term of the Agreement, or not to provide the value added service at all. You will be notified in the event of termination of a value added service or in the event of a termination of the value added services in their entirety.
5.3. Polka can also provide you with the additional services listed below at a nominal fee:
5.3.1. Polka fax
5.3.1.1. Polka fax allows you to send and receive faxes from your computer. With Polka fax you receive your own free fax number plus you receive all incoming faxes free of charge.
5.3.1.2. The service is available to Polka subscribers at a nominal fee.
5.3.1.3. To get Polka fax click here.
5.3.2. Polka extra mailbox
5.3.2.1. You can purchase an additional 100MB mailbox for as little as R18 a
month.
5.3.2.2. To get your extra mailbox go to
http://www.Polka.co.za/biggermailboxinfo.aspx.
6. Your Package
6.1 You have selected the package reflected under “Choose your Service” on the Application Form. This is referred to as your “Data Bundle”. The limit of your Data Bundle is referred to as your “Base Cap”.
6.2. You may only use the Service for purposes of accessing the Internet, and sending or receiving email. You may not use the Service for any other purposes, including (without limitation) the making of voice calls, or the sending of SMS’s. The use of the Service for any purposes other than as contemplated in this clause 6.2 will fall outside of your Data Bundle, and you will be charged for such usage as provided for in clause 9.1.4.
6.3. Once you exceed your Base Cap, and continue to make use of the Service, we will automatically charge you for additional data ("Out-of-Bundle Data”) at the rates which appear on the Application Form (“Out-of-Bundle Rates”). These rates are also published on our Website and are subject to change from time to time.
6.4. Your Out-of-Bundle Data usage may, depending on your choice of a Data Bundle, be subject to a threshold referred to as your “Automatic Credit Limit”. Once you reach your Automatic Credit Limit we will suspend your access to the Service until the beginning of the next month, when you will have access to your Data Bundle again. Should you however require use of the Service following the suspension thereof, i.e. during the course of the present month, you will be able to increase your Automatic Credit Limit by contacting our Call Centre. The new increased threshold will then become your Automatic Credit Limit. Should you reach your new Automatic Credit Limit, we will again suspend your access to the Service, unless you again increase your Automatic Credit Limit as contemplated above. You may increase your Automatic Credit Limit any number of times during the course of a month.
6.5. We do not guarantee the efficiency of the Automatic Credit Limit and you remain responsible to monitor your usage of the Service.
6.6. Once you have been a subscriber to a specific Date Bundle for at least 3 (three) months, you will be entitled to upgrade to a Data Bundle with a higher Base Cap offered as part of the Service. Such upgrade will become effective on the 3rd (third) of the following month.
6.7. Once you have been a subscriber to a specific Date Bundle for at least 3 (three) months, you will also be entitled to downgrade to a Data Bundle with a lower Base Cap. A downgrade will attract a variable once off administration fee. Such downgrade will become effective on the 3rd (third) of the following month.
7. Your Obligations
7.1. You require a Laptop / PC, a USB Modem and a SIM Card to use the Service.
7.2. You are required to ensure that the Equipment that you intend to use in order to receive the Service is compatible with our technical specifications, which are available on our Website.
7.3. You must contact our Call Centre within 48 (forty) eight hours of delivery of the USB Modem to you in order to activate the provisioning of the Service, failing which your Subscriber Number will be withdrawn and this Agreement will terminate with immediate effect. You will however remain liable for payment of all amounts due to us by you under the Agreement.
7.4. You will be liable to Polka for the payment of all charges generated in respect of your SIM Card with effect from the Activation Date.
7.5. In the event of the theft of your USB Modem, you must request us to Blacklist or Greylist your USB Modem.
7.6. You must also notify us of the theft, loss, damage to or destruction of your SIM Card. Upon notification your liability hereunder will be limited to payment of the Monthly Access Fees for the remainder of the Contract or Renewal Period, as the case may be. You could however acquire a new SIM Card from us to reactivate the Service.
7.7. Without limiting the General Terms and Conditions, you agree that you will under no circumstances:
7.7.1. use the Service or for any improper, immoral or unlawful purpose including, without limitation, the use of the Service in any manner that:
7.7.1.1 interferes with Polka’s and/or the Network Operator’s ability to provide the Service or any other service to their subscribers; or
7.7.1.2 interferes with the quality and/or availability of the Network; or
7.7.1.3 contravenes any applicable legislation and/or regulation including without limitation the Electronic Communications Act; or
7.7.2. use the Service to infringe the intellectual property rights or other
proprietary rights of Polka or the Network Operator 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; or
7.7.3 act or omit to act in any way which may damage any property, the
System or the Network, or cause the quality of the Service to be
impaired or interrupted in any manner whatsoever; or
7.7.4. reverse engineer, decompile, modify or tamper in any way with the
software, the IMSI or ICC-ID contained within the USB Modem.
7.8. You shall notify us forthwith in writing of any change to your information or details.
7.9. You shall be entitled to refer disputes relating to the provisioning of the
Service by Polka to:
7.9.1 Polka itself, in accordance with the Complaints Handling, Resolution and Escalation procedure in our Code of Conduct and Service Charter; or
7.9.2 any telecommunications representative who may be appointed as such by ICASA as provided for in the licence granted to the Operator to install, operate and maintain a cellular telephony service within South Africa.
8. Equipment
8.1. We reserve the right, without cost or penalty to ourselves, to vary any name, code or number relating to or used in connection with the provisioning of the Service to you, and you indemnify us against liability of any nature whatsoever arising from or in connection with such action.
8.2. All rights of ownership attaching to your Subscriber Number shall at all times remain vested in the Network Operator.
8.3. Risk in and the responsibility for the USB Modem and SIM Card will pass to you on delivery thereof. You are required to put insurance in place for the USB Modem.
8.4. The rights of ownership in and to the USB Modem and the SIM Card will vest with Polka during the Contract Period, or the Renewal Period, as the case may be, save for the right, title and interest in and to the software, the IMSI, and the ICC-ID contained in the USB Modem which vest with the Network Operator (“Licensed Rights”). Upon the expiry of the Contract Period, or the Renewal Period, as the case may be, ownership of the USB Modem and the SIM Card, excluding the Licensed Rights, will pass to you provided that you have made payment in full of all amounts of whatsoever nature due by you to us during the Contract Period, or the Renewal Period.
9. Payment
9.1. You will be liable for payment of the following Service Charges:
9.1.1. A once-off charge for the SIM Card and connection to the System;
9.1.2. Monthly Access Fee - you will be billed for this monthly in advance;
9.1.3. Out-of-Bundle fees as detailed in clause 6.3 above- you will be billed for this monthly in arrears; and
9.1.4. Usage Charges- you will be billed monthly in arrears for services outside of your data Bundle as contemplated in clause 6.2.
9.2. The Service Charges exclude value-added tax which shall be borne and paid for by you.
9.3. You will make payment of the Services Charges to Polka in accordance with the procedure set out at http://www.Polka.co.za/services/myaccount.
9.4. The Access Fee and Data Cap in the first month of Subscription will be pro- rated where the Service is not activated at the beginning of the Billing Cycle.
9.5. We reserve the right to amend the charges and fees payable by you from time to time on 10 (ten) days notice to you, subject to the condition that any variation in the charges and fees will not exceed those charges and fees approved by the South African regulatory authority.
9.6. Subject to the provisions of clause 8.4 of the General Terms and Conditions, failure to effect payment as provided for hereunder may result in the suspension or termination of our provisioning of the Service to you. Under such circumstances you will forfeit your right to access and use the Service, but you shall remain liable to pay the balance of the Monthly Access Fee due to us for the duration of the Contract Period.
9.7. Subject to the provisions of clause 8.4 of the General Terms and Conditions, the Network Operator and/or Polka may, in the event that you fail to make payment of any amount due by you, but subject to the provisions of clause 8.4 of the General Terms and Conditions, Blacklist the USB Modem and/or the SIM Card, as a result of which you will not be able to access the System.
9.8. We furthermore reserve the right to levy a reasonable charge for the Blacklisting or removal from the Blacklist, as the case may be, on your request, of your USB Modem and/or SIM Card. Such charge will be payable by you within 30 (thirty) days of the date of our invoice.
9.9. You indemnify us against any claim or liability of whatsoever nature arising from the Blacklisting of your USB Modem and/or SIM Card as provided for in this clause 8.
10. Disclaimer
10.1. Polka will use its reasonable endeavors to facilitate the provisioning of the Service to you on a 24 (twenty four) hours per day basis on each and every day for the duration of the Agreement.
10.2. You nevertheless acknowledge and agree that service quality, Network Coverage and availability of the Service is limited to that provided by Network Operator and the System and the Service may, from time to time, be adversely affected by physical features such as buildings and underpass as well as atmospheric conditions and other causes of interference, or by instances of force majeure. You agree not hold us, or the Network Operator, liable for the non-availability of the Service or an alleged inadequacy of the quality thereof.
10.3. Without derogating from the generality of the aforegoing, you hereby indemnify us and hold us harmless against any loss, liability, claim, cost or damage suffered by you or any third party, as the case may be, arising from the negligent provisioning of the Service to you and your use thereof, availability or non-availability of the Service, the negligent operation of the System, including but not limited to any indirect, contingent or consequential loss, including loss of revenue, loss of data, loss of business and loss of profit, howsoever arising.
11. Network Operator Agreement
11.1. You agree that in the event of the termination of the agreement between Polka and the Network Operator, Polka may, at its discretion:
11.1.1 terminate the provisioning of the Service to you on notice in writing; or
11.1.2 continue to provide the Service to you for the remainder of the term of your Subscription until we give you written notice to the contrary; or
11.1.3 transfer the provisioning of the Service to a third party service provider and assign this Agreement to such third party, or provide the Service to you in partnership with the third party service provider; or
11.1.4 assign this Agreement to the Network Operator.
11.2 In order to ensure continuity of the Service Polka will assign its rights and obligations under this Agreement to the Network Operator, or its nominee, should Polka be placed under provisional or final liquidation (otherwise than for the purpose of reconstruction or merger) or under provisional or final receivership or judicial management, or should Polka become insolvent (commercially or otherwise) or comprise or attempt to compromise with its creditors.
12. Warranty
The USB Modem carries a 24 (twenty four) month manufacturer’s warranty.
13. Use of your information
13.1 Without derogating in any manner whatsoever from the provisions of our Privacy Policy -
13.2 you agree that we may use your information to determine your usage pattern, to maintain a comprehensive and accurate database of our Subscribers and, for such other reasonable purposes as may be required.
13.3 you agree that we may make such information, as well as your Customer Details, available to the Network Operator.
© Polka 080625