Polka Subscriber Terms and Conditions of Use

 

 

1.  Introduction

1.1 We sell access to our network on a subscription basis which facilitates use of the world wide web, electronic mail, FTP and USENET ("access") via a dial-up or ADSL connection for our subscribers who enter a valid user name and password.
1.2 When you subscribe for the service, we will issue a user name and password to you. By using the user name and password to access the service and/or by using the service, you will be signifying your acceptance of these terms and conditions of use, which will form a binding agreement between you and us.

 

2.  Conditions of access

2.1 "the/this agreement" - means these terms and conditions of use, our website terms and conditions of use, our copyright notice, our privacy policy, our mailbox rules and all other terms and conditions which we may, from time to time, impose in respect of the service, as amended and updated from time to time;
2.2 "effective date" - means the date on which we activate your subscription to the service;
2.3 "service(s)" – means the service described in 1.1 above and any other service that you may subscribe to or which may form part of our offering from time to time;
2.4 "subscription fee" - means the fee provided for in 6.1 below, as set out in our standard price list from time to time;

 

3.  Interpretation of this Agreement

3.1 We hereby, with effect from the effective date, grant you access to the service on the terms and conditions of this agreement.
3.2 You hereby acknowledge receipt of such access and agree that :
3.2.1 you will use your user name and password for your own personal use only;
3.2.2 you will not disclose your user name and password to any other person for any reason whatsoever and will maintain the confidentiality thereof;
3.2.3 in the event that your password is compromised, you will immediately notify us and change your password;
3.2.4 you will not, at any time, permit and/or initiate a simultaneous network log-in; and
3.2.5 you will not attempt to circumvent our user authentication processes or engage in attempts to access our network where not expressly authorised to do so.
3.3 Should you fail to comply with any of the provisions of 3.2, you agree to pay to us immediately, on demand, all costs, losses and/or damages incurred or suffered by us as a result of your breach. This may include (without being limited to) the payment of an additional subscription fee.

 

4.  Service Availability

4.1 We will use reasonable endeavours to make the service is available to subscribers, and keep the service available to subscribers at all times. However, you agree that we shall not be liable in respect of any loss or damage caused by or arising from the unavailability of, any interruption in or the use of the service for any reason whatever. This exclusion of our liability for loss or damage will include (but is not limited to):
4.1.1 losses caused by our negligent acts and any acts of our employees;
4.1.2 any direct, consequential, incidental or indirect damages flowing from business interruption, loss of business information, loss of data or any other cause;
4.1.3 any damages whether a claim for such damages is based on breach of contract, delict, breach of implied warranties or otherwise; and
4.1.4 any damages whether it could have been foreseen or not.
4.2 We will use our best endeavours to notify you of any maintenance and repairs which may result in the service being unavailable, but do not warrant or otherwise contractually undertake that such notice will be given.

 

5.  Communication

5.1 You hereby agree that we may from time to time send you communications regarding (without being limited to) special offers/discounts which we may negotiate for our subscribers, operational changes that may affect the service and/or new services launched by us from time to time.

 

6.  Payment

6.1 You agree to pay the subscription fee, which may include (without being limited to) the monthly access fee, usage fees, fees for closed user groups and fees for other services you may subscribe to from time to time. Unless we specifically agree otherwise, the subscription fee will be payable monthly in advance, except for usage fees, which will be payable monthly in arrears.
6.2 We will invoice you for the subscription fee on a monthly basis, unless we specifically agree otherwise.
6.3 The subscription fee and all other amounts payable in terms hereof shall be paid free of exchange and without deduction or set-off by way of a direct debit order in our favour (drawn against a current banking account nominated by you), or in such other manner as we may from time to time determine. You agree that by furnishing your bank details, you authorise us to deduct all amounts payable in terms of this agreement from the account specified. Should we require you to, you agree to sign all such forms and do all such things as may be necessary to give effect hereto.
6.4 Should you fail to pay any amount on the due date for payment, then, without prejudice to any other rights we may have:
6.4.1 such amount shall bear interest at the rate of 2% above the prime overdraft rate of our bankers from time to time, calculated from the due date until the date of payment (both dates inclusive) and will be capitalised monthly;
6.4.2 we shall be entitled to take all such further steps as may be necessary to recover the outstanding amount from you, in which event you agree to pay all costs associated with such recovery on an attorney and own client basis;
6.4.3 we shall be entitled to claim damages from you regardless of whether a claim for damages is based on breach of contract, delict, breach of implied warranties or otherwise; and
6.4.4 we shall be entitled to, without notice, suspend your access to the service until such time as the outstanding amount has been paid in full; and/or
6.4.5 we shall be entitled to terminate this agreement with immediate effect.
6.5 We shall, in our sole discretion, be entitled to increase or decrease the subscription fee at any time. We undertake to give you at least 30 days written notice of any such increase or decrease. Should the amended fee be unacceptable to you, you may terminate this agreement in accordance with 14 below, failing which the amended fee shall take effect on the date indicated in the written notice.
6.6 You may not withhold payment of any amount due to us in terms of this agreement by reason of any alleged breach of this agreement by us, nor will you be entitled to any discount, refund or other credit under any circumstances.

 

7.  Security

7.1 In order to ensure the security and reliable operation of the service to all our subscribers, we hereby reserve the right to take whatever action we may find necessary to preserve the security and reliability of its network.
7.2 You may not utilise the service in any manner which may compromise the security of network or tamper with the service or the network in any manner whatsoever.

 

8.  User Etiquette and Abusive Behaviour

8.1 You hereby agree to adhere to generally acceptable Internet and email etiquette. In this regard, without being limited to the examples listed below, you agree B>not to:
8.1.1 engage in any abuse of email or spamming, including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
8.1.2 take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent your affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service;
8.1.3 use the service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person’s personality rights;
8.1.4 use the service to make fraudulent offers to sell or buy products, items or services or to offer or solicit for any type of financial scam such as “pyramid schemes” and “chain letters”;
8.1.5 use the service in a manner that may infringe the intellectual property rights (for example copyright or trade marks) or other proprietary rights of others, including (without being limited to) the transmission of pirated software;
8.1.6 use the service in any manner which could damage, impair, overburden or disable the service or interfere with any other party’s use or enjoyment of the service;
8.1.7 use the service to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
8.1.8 cancel any Usenet post other than your own;
8.1.9 repeatedly post gratuitous off the topic postings;
8.1.10 gather email addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect personal information about third parties without their knowledge or consent; and
8.1.11 violate the privacy of any person or attempt to gain unauthorised access to the service or any other network, including (without being limited to) through hacking, password mining or any other means; and/or
8.1.12 use the service to engage in any illegal or unlawful activity.
8.2 Should you engage in any one or more of the above practices, which shall be determined in our sole discretion and which decision shall be final, then we shall be entitled, without prejudice to any other rights we may have, to:
8.2.1 without notice, suspend your access to the service;
8.2.2 terminate this agreement with immediate effect;
8.2.3 bill you for any costs incurred by us, including (without being limited to) bandwidth, administration costs, downtime, usage of our name or registered domain names and CPU cycles; and/or
8.2.4 notwithstanding our privacy policy, disclose any information relating to you, whether public or personal, to all persons affected by your actions.

 

9.  Indeminty

9.1 You hereby unconditionally and irrevocably indemnify us and agree to hold us free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by us or instituted against us as a direct or indirect result of:
9.1.1 your use of the service;
9.1.2 your failure to comply with any provision of this agreement or any other requirements which we may impose from time to time; and
9.1.3 any unavailability of, or interruption in the service, as contemplated in 4.1 above.

 

10.  Breach

10.1 Should you be in breach of any provision of this agreement, then we shall be entitled, without prejudice to any other rights it may have and without notice to you, to forthwith:
10.1.1 claim immediate payment of all outstanding amounts payable in terms of this agreement;
10.1.2 suspend your access to the services; and/or
10.1.3 terminate this agreement, retain all amounts already paid by you and recover all costs incurred by us, including (without being limited to) legal costs on an attorney and own client basis.

 

11.  Certificate of Indebtedness

11.1 The amount due and payable by you to us in terms of this agreement at any time shall be determined and proved by a certificate signed by one of our directors, whose appointment, qualification and authority need not be proved.
11.2 Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against you.

 

12.  Cession and Delegation

12.1 You may not cede any of your rights or delegate any of your obligations under this agreement without our express written consent.
12.2 We shall be entitled, in our sole discretion and without notice to you, to cede and transfer or delegate to any third party all or any of our rights or obligations under this agreement.

 

13.  Jurisdiction

13.1 You hereby consent to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by us arising out of this agreement, provided that we shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.

 

14.  Duration

14.1 This agreement will commence on the effective date and will endure for an indefinite period, subject to the right of either party to terminate this agreement at any time by means of 1 (one) calendar month prior written notice to such effect to the other party. Upon termination of this agreement, any outstanding amounts remain payable and have to be settled within 30 days of termination.

 

15.  Amendment of this agreement

15.1 We reserve the right to amend this agreement from time to time without notice to you. Any new version of the agreement will be displayed on our web site together with the date on which it will become effective, which will never be less than 30 days after the date on which it is first displayed. It is your obligation to visit our web site on a regular basis in order to ascertain whether any amendments have been made.

 

16.  General

16.1 The parties acknowledge and agree that this agreement sets out the whole of the agreement between them and that there are no other agreements, guarantees or representations, either verbal or in writing, in regard thereto upon which any party is relying in concluding this agreement.
16.2 Any reference to "we" or "us" in this agreement means MultiChoice Subscriber Management Services (Pty) Ltd, Internet Division t/a polka and we choose Private Bag X105, N1 City, 7463, Cape Town as our address for the purposes of giving any notice, the serving of any process and for any other purposes arising from this agreement, whereas you choose the address you provided to us when subscribing for the service for this purpose.
16.3 You agree that any notices we send to you in terms of this agreement may be sent via email.
16.4 No indulgence, leniency or extension of time, which we may grant or show to you shall in any way, prejudice us or preclude us from exercising any of our rights in the future.
16.5 You warrant that as at the effective date, all the details furnished by you to us are true and correct and that you will notify us forthwith in the event of any change to such details.

 

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