Polka ADSL Service Terms and Conditions


 

 

1.  polka ADSL Service description

1.1

We provide a capped asymmetric digital subscriber line (ADSL) service that enables you to send and receive data and email and to access the Internet using a high-speed connection (polka ADSL service).

 

2.  Introduction

2.1 By using or subscribing to the polka ADSL service you agree that you have read, understand and are bound by: -
2.1.1 the terms that apply to all our services set out at: www.polka.co.za/notices/default.aspx (General Terms); and
2.1.2 the terms that apply specifically to the polka ADSL service, set out herein and on the polka ADSL website (polka ADSL Service Terms).
2.2 Without limiting the above, we may ask you to accept all or any of the polka ADSL service terms when you first subscribe to or use the polka ADSL service.
2.3 If you do not want to be bound by the General Terms and the polka ADSL Service Terms, you must not use or subscribe to the polka ADSL service.
2.4 In the case of an inconsistency between the polka ADSL Service Terms and the General Terms, the General Terms will prevail to the extent that such terms and conditions apply to the polka ADSL Service.

 

3.  Interpretation

3.1 In these polka ADSL Service Terms:
3.1.1 the singular includes the plural and vice versa;
3.1.2 ADSL means an Asymmetric Digital Subscriber Line which transmits your data onto the Telkom network;
3.1.3 Data Cap or Cap means the amount of data, measured in Gigabytes (GB), that you would like to send and receive during any month and can be 1GB, 2GB or 3GB;
3.1.4 get-a-gig means the process of obtaining more bandwidth as described below;
3.1.5 Kbps means kilobytes per second;
3.1.6 Line Rental means the cost to polka of making the ADSL available to you on a monthly basis, which appears on the polka ADSL Website;
3.1.7 Modem means the device which is used to connect your computer to the Telkom Telephone Service, in order to enable the ADSL Service;
3.1.8 polka ADSL Service or Service means and includes (without limitation) any website, “get-a-gig”, alert, tool, aids content or other services offered by us as part of the polka ADSL Service as described in 1 above;
3.1.9 polka ADSL Website means the website located at: http://adsl.polka.co.za;
3.1.10 Self Install Option means that you are able to attend to and complete the part of the ADSL line installation that is required to take place at your premises, yourself;
3.1.11 subscribe means your act of gaining access to the polka ADSL Service by entering into an agreement with us for the provisioning of the Service to you;
3.1.12 shaped means that the Service is optimized for web browsing and email;
3.1.13 Telkom means Telkom SA Ltd;
3.1.14 Telkom Resell ADSL Terms and Conditions means the Telkom Resell ADSL product-specific conditions, a copy of which is attached hereto as Appendix A;
3.1.15 Telkom Telephone Service means a fixed access line for making and receiving telephone calls;
3.1.16 use includes (without limitation) accessing, retrieving, downloading, logging on to or viewing the polka ADSL Service; and
3.1.17 we, us and our means MultiChoice Subscriber Management Services (Pty) Ltd-Internet Division, and its affiliates and subsidiaries.

 

4.  polka ADSL service terms

4.1 Check ADSL availability
4.1.1 The polka ADSL Service is not available everywhere.
4.1.2

You are responsible for checking that the polka ADSL Service is available on your Telkom Telephone Service before you buy a Modem or subscribe to the polka ADSL Service.
4.2 Pre-requisites
  You are required to have an existing and active Telkom Telephone Service, as well as an ADSL in order to make use of the polka ADSL Service. You can obtain the ADSL in one of two ways:
4.2.1 Engaging with Telkom directly, under which circumstances:
4.2.1.1 Telkom will attend to the installation of the ADSL;
4.2.1.2 you will pay an installation fee and a monthly line rental to Telkom;
4.2.1.3 MWEB will provide the ADSL Service to you, over the Telkom ADSL network; and
4.2.1.4 MWEB will provide the Service to you on a month to month basis.
4.2.2 by renting your ADSL from polka, under which circumstances:
4.2.2.1 it will be a pre-requisite for you to qualify for the Self Install Option according to the criteria determined by Telkom, as set out on the polka ADSL Website;
4.2.2.2 Polka will apply to Telkom for the ADSL on your behalf and Telkom will approve your application;
4.2.2.3 Polka will supply you with the Modem which is required to enable the ADSL Service;
4.2.2.4 You will pay Polka for the Line Rental and the ADSL Service;
4.2.2.5 You will agree to and sign the Telkom Resell ADSL Terms and Conditions;
4.2.2.6 you will enter into a 1 (one) year agreement with polka for the provisioning of the ADSL and Service; and
4.2.2.7 you acknowledge that a ADSL procured in this manner will have one of 3 line speeds:
  4.2.2.7.1 up to 384 Kbps;
  4.2.2.7.2 up to 512 Kbps; or
  4.2.2.7.3 up to 4096 Kbps.
4.3 Capping
4.3.1 Like Telkom and other Internet service providers, we cap our polka ADSL Service.
4.3.2 This means that we limit the amount of data that you are able to receive or send during any month using the polka ADSL Service.
4.3.3 When you subscribe to or start using the polka ADSL Service, you are asked to select a Data Cap.
4.3.4 At all times, we may measure the amount of data that you send or receive during any given month. If you reach or exceed your Data Cap during a month we may stop your access to the polka ADSL Service.
4.3.5 In that case, you will not be able to use the polka ADSL Service, send or receive data or email, or access the Internet until the start of the next month.
4.3.6 However, if you do reach or exceed your Data Cap you will be able to: -
4.3.6.1 “get-a-gig” to temporarily increase your Data Cap during that month (see below);
4.3.6.2 use a dial-up service (“pay-as-you-polka”); or
4.3.6.3 increase your DataCap by phoning our call centre for an upgrade.
4.3.7 If you regularly exceed your DataCap, you should consider increasing your cap.
4.3.8 You may increase (or decrease) your DataCap with effect from the first day of a subsequent month against payment of the relevant charges.
4.3.9 You are responsible for ensuring that you use (and that any third party who has access to your polka ADSL Service account uses) the polka ADSL Service in such a way that your Data Cap is not exceeded. We accept no responsibility if you exceed your Data Cap.
4.4 Monitoring usage
4.4.1 As stated above, we have a computer system that may measure your usage of the polka ADSL Service to determine if and when you reach your Data Cap.
4.4.2 However, due to the way in which Telkom offers ADSL, we can only measure your usage at times when you end a current session.
4.4.3 Your current session will end: -
4.4.3.1 automatically, at least once every 24 hours for a very short moment; and
4.4.3.2 when you manually end your session.
4.4.4 Because your access to the polka ADSL Service will be restricted when you reach your Data Cap, it is important that you: -
4.4.4.1 monitor your usage of the polka ADSL Service by using our cap aids and alerts (see below); and
4.4.4.2 regularly end your current sessions so that we may be able to measure your usage.
4.4.5 We may end your current session in our discretion at any time to measure your usage.
4.4.6 You are finally responsible for monitoring and controlling your use of the ADSL Service.
4.5 Cap aids and alerts
4.5.1
We provide aids that may help you to keep track of your polka ADSL Service usage:
4.5.1.1 polka ADSL Website: The polka ADSL Website helps you to monitor your polka ADSL Service usage online, and enables you to “get-a-gig”. You administer the polka ADSL Website yourself.
4.5.1.2 email alert:We send you emails in regular intervals to inform you how much of your Data Cap you have used. We send you email alerts as a matter of course.
4.5.2 There is currently no subscription fee for access to and use of the polka ADSL Website or the email alerts. We reserve the right to change this position at any time.
4.6 Get-a-gig
4.6.1 If you reach your Data Cap in any month, you may buy a 1GB “get-a-gig” either online or via our call centre. A get-a-gig increases your Data Cap temporarily for the remainder of the month.
4.6.2 If you “get-a-gig”, it will be available until the end of the month during which you buy it. The get-a-gig expires at the end of that month. In other words, unused data capacity on a “get-a-gig” is not carried over to the next month.
4.6.3 We may limit the number of manual “get-a-gigs” which we allow you to buy in any given month, at our discretion.
4.6.4 We display the charges for the “get-a-gig” on the polka ADSL Website. The charges may change from time to time.
4.6.5 You can cancel a “get-a-gig” that you have bought if you have not used the “get-a-gig” at all. In that case, we will refund you in full. No pro rata refunds will be paid.
4.7 pay-as-you-polka (dial-up service)
4.7.1 As stated above, if you exceed your cap in any month, you may send and receive data and email, or access the Internet via a dial-up service provided by us
4.7.2 The dial-up access is configured via a cellular dial-up number. Normal cellular telephone rates apply. Free minutes do not apply.
4.8 Concurrency
4.8.1 You may only have the following connections to the polka ADSL Service at any given time:
4.8.1.1 If your account has a 1GB or 2GB data cap, you may have: -
4.8.1.1.1 1 (one) ADSL connection; and
4.8.1.1.2 Unlimited cellular ‘pay-as-you-polka’ dial-up connections, to the network at any given time.
4.8.1.2 If your account has a 3GB data cap, you may have:-
4.8.1.2.1 2 (two) ADSL connections;  and
4.8.1.2.2 Unlimited cellular ‘pay-as-you-polka’ dial-up connections, to the network at any given time.
4.8.2 Except as stated above, you may not have, or attempt to have any other concurrent connections to the polka ADSL Service.
4.9 Exceeding your cap and blacklisting
4.9.1 From time to time, in any given month, we may in our sole discretion allow you to exceed your Data Cap without stopping your access to the polka ADSL Service.
4.9.2 However, if we allow you to exceed your Data Cap in this manner, it will merely constitute a temporary indulgence on our part. It will not constitute a waiver of any of our rights, including (without limitation) our right to stop your access to the polka ADSL Service if you exceed your Data Cap at any time in the future.
4.9.3 If you exceed your Data Cap, we reserve the right in our sole discretion to recover from you the cost of the amount of data by which you have exceeded your Cap.
4.9.4 If you exceed yourData Cap regularly, we reserve the right in our sole discretion to “blacklist” you. In that case, we will measure your usage of the polka ADSL Service very carefully and stop your access to the polka ADSL Service promptly every time you exceed your Cap.
4.10 Credit checks and your information
4.10.1 By applying for a subscription to the polka ADSL Service or by using the polka ADSL Service you authorise us, in our sole discretion and at any time, to:-
4.10.1.1 check your credit history with any credit bureau; and
4.10.1.2 provide any of your personal information to the credit bureau for this purpose.
4.10.2 We reserve the right, for any reason and without notice to you, to refuse or end your subscription to the polka ADSL Service or a “get-a-gig”.
4.10.3 When you subscribe to or start to use a service, if requested by us, you will provide us with your full names, identity number, residential and business or postal address, a certified copy of your identity document and (if you are a legal entity) a certified copy of your business letterhead.

 

5.  Polka ADSL acceptable use policy

5.1 You will only use the polka ADSL Service for purposes: -
5.1.1 that are lawful; and
5.1.2 for which it was designed.
5.2 You will not use the polka ADSL Service, directly or indirectly, in a way that: -
5.2.1 is harmful, obscene, discriminatory, defamatory or illegal;
5.2.2 constitutes hate speech, incitement to commit criminal acts, or invasion of privacy;
5.2.3 infringes copyright or other intellectual property rights;
5.2.4 spreads viruses or other computer or communications software, code, programs or files that impede or destroy the functionality of any computer or communications software or equipment;
5.2.5 interferes with any third party’s use of the polka ADSL Service;
5.2.6 transmits unsolicited bulk messages (“spam”);
5.2.7 obtains information about or from third parties;
5.2.8 causes your cap to be regularly exceeded; or
5.2.9 otherwise breaches the General Terms or the polka ADSL Service Terms.
5.3 We reserve the right to limit the number of emails that you may send in any given period or to limit the total message volume (amount of data) sent per hour.

 

6.  Disclaimer

6.1 We use the Telkom ADSL network to provide the ADSL Service. We accordingly provide the ADSL Service subject to the limitations and terms imposed by Telkom, which includes the actual availability of the Telkom network.
6.2

We will always try to provide the ADSL Service to the best of our ability.
However, we:-
6.2.1 provide the ADSL service “as is” and “as available”; and
6.2.2 do not warrant or guarantee that the ADSL service:-
6.2.2.1 is free of errors or interruptions;
6.2.2.2 is always available;
6.2.2.3 is fit for any purpose; 
6.2.2.4 does not infringe any third party rights;
6.2.2.5 is secure and reliable; or
6.2.2.6 will conform to your timeline requirements.

 

7.  Limitation of liability

7.1 You subscribe to and use the polka ADSL service at your own risk.
7.2 We are not liable to you or any third party for any damages suffered by you or a third party howsoever arising from your subscription to or use of the polka ADSL service, including (without limitation) any damages suffered by you due to:-
7.2.1 any interruption of or error in the polka ADSL service; or
7.2.2 our failure to fulfill our obligations as a result of uncontrollable events.
7.3 If you suffer damages or are dissatisfied with the polka ADSL service your only remedy is to end your subscription (if it is not for a fixed term) or stop using the polka ADSL Service.
7.4 In this clause:
7.4.1 damages means all damages of whatever nature and includes (without limitation) all damages, loss, claims or costs, including (without limitation) loss of data, profits or custom, or business foregone whether:-
7.4.1.1 in contract, delict or otherwise;
7.4.1.2 direct, indirect, special or consequential;
7.4.1.3 foreseeable or not; and
7.4.1.3 we were advised of the damages in advance or not; and
7.4.2 uncontrollable events mean any circumstances beyond our reasonable control, including (without limitation) an act of God, of public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, or any act or omission on the part of a third party (including (without limitation) Telkom).

 

8.  Indemnity

8.1 You indemnify us against all damages, loss or costs suffered by us or claims instituted against us howsoever arising from: -
8.1.1 your subscription to or use of the polka ADSL service; or
8.1.2 your breach of the General Terms or the polka ADSL service terms.

 

9.  Change to polka ADSL service terms

9.1 We may change any or all of the polka ADSL Service Terms including (without limitation) the polka ADSL Service charges at any time without notice to you.
9.2 Any changes will become effective when we publish them.
9.3 You agree to check our legal notices website, the polka ADSL Website and the polka ADSL Service Terms periodically for changes.
9.4 By continuing to use the polka ADSL Service after we make the changes, you agree to be bound by the changed polka ADSL Service Terms.
9.5 If you do not accept the changed polka ADSL Service Terms, you must stop subscribing to the service (if you have not subscribed for a fixed term), or stop using the polka ADSL Service.

 

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