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Home User UTR Fair Usage Policy and Terms and Conditions

Fair Use Policy – Terms and Conditions  

Product: Unlimited Telephonic and Remote Support (UTR) contracts for homes: 

  • This support product covers all permanent occupants of the residential property (home) of the signatory on the contract.    
  • Non-commercial use only.
  • If you run a business from home; and your support requirements are for a device that generates income for you, then a BUSINESS UTR support model is applicable, or you will be provided support by the hour at the standard support rate.
  • Technicians will use their judgment to determine this in the process of providing support. If they feel the support being offered is to assist a business or to generate income, they will escalate the matter to management and contact will be made with the customer.  
  • Dial a Nerd reserves its right to terminate the contract in the event of a disagreement on this matter.
  • All users need to be listed on the contract to ensure our technicians can provide the necessary support and record the user’s preferences, devices, and common support requirements.  
  • Those NOT listed on the contract are not eligible for the UTR support and will be billed per hour*. 
  • As the name of the product stipulates, this support only includes telephonic and remote support.  Onsite work is billed per hour and includes travel costs.
  • A reliable and fast internet connection of at least 4 MB is required to properly provide remote desktop support. This connection can be fiber (FTTH), LTE or wireless.  Unreliable internet access will negatively impact this service offering.
  • There is a ‘fair use’ limit of tickets per device, per calendar month for unrelated incidents. As an example,  should a single computer suffer varied unrelated problems the support may be limited because numerous unrelated problems on a device are symptomatic of hardware or Operating System failure and Dial a Nerd will make a recommendation to replace, reload or repair subject to warranty terms.  
  • Average resolution time-limited to 30minutes “click time” per ticket/job.
  • In the event of support time exceeding this, a decision will be made as to whether hourly billing is applicable from an onsite technician, subject to your approval.
  • Multiple tickets can be raised within the month by different contracts for different devices (subject to other conditions)  
  • Our Technicians are experienced in removing and dealing with Virus’, Malware and Spyware but given their very nature (and the varying causes of infection), we are unable to provide any extended warranty for onsite or offsite support. Our Technicians will typically perform all the necessary tests to diagnose and remove any infections as best as possible, causing as little disruption to you, your computer and your applications as possible but, given the repair options vary from “do nothing” to “wipe the computer”, the varying repairs can have equally varying results.  
  • Importantly, in some instances, Virus’ and Malware programs are designed to cause as much havoc when removed as when in place, meaning the removal can often leave a computer in a more fragile state than when infected. In these instances, we will continue to provide any support as required but cannot be held responsible for damages caused as a result of any attempted repairs.   
  • NB: In the result of unrepairable damage to the operating system of the machine our professional advice will be a complete “Backup, Format and Reinstall” of the operating system and all software originally installed. This cannot be done remotely and therefore the computer will need to be brought into the office, or a technician booked to attend to the matter onsite.  
  • All Customers should ensure they have a working, reliable backup of all their data and important information before requesting any support, resulting in potentially ‘aggressive’ repair solutions. Dial a Nerd can never take responsibility for data, nor can we be held liable for data lost during the execution of our support. The client must have their data in at least 2 separate locations.  
  • The following exclusions are not counted as ‘unlimited’ and will be quoted and invoiced for separately: 
    • Training sessions (planned, groups or anything that requires more than 10 minutes dedicated instruction in total); 
    • New hardware or 3rd party software installations (if a new Smart device, workstation, software/game or IT system is required a pre-approved quote will be required before any work carried out) 
    • Reoccurring faults as a direct result of end-users ignoring or being unable to adopt recommendations provided by DAN; all tickets/jobs are recorded on our systems and technicians capture their work performed AND advice given. These ticket descriptions are obviously shared with the client and can be referred to at any later date.  
    • Faults with 3rd party software which DAN is not able or authorized to work with; for example accounting software, pirated software, STEAM or online accounts for gaming, proprietary software, Alarm systems, CCTV camera’s, etc 
    • General misuse by the Customer of the System, Hardware or Software; most often physical damage but also repeated failure on the utilization of software products. 
    • Any “projects” (as Dial a Nerd staff choose to define them) which fall outside of normal maintenance and support, each such project to be quoted and approved by the Customer separately 

Dial a Nerd reserves its right to amend the fair use policy at any stage as it deems necessary in the logical and sensible provision of this “unlimited” support offering. Maintaining profitability while still providing a suitable service to our customers is the goal of this company and with that in mind, our service offerings are always subject to change.  

Terms and Conditions

  1. DEFINITIONS 

1.1. For purposes of these Conditions, unless the context indicates otherwise, the words and expressions below shall have the following meanings, and cognate expressions shall have a corresponding meaning, namely: 

  1. 1.1 
 Affiliates  the directors, managers, shareholders or members, agents, representatives, holding companies and subsidiary companies (as those terms are defined in the Companies Act, 2008) of the Service Provider; 
  1.  1.2.
 Applicable Laws  all applicable (in the circumstances and context concerned) laws (statutory or common), rules, ordinances, regulations, grants, concessions, franchises, licences, orders, directives, judgments, decrees, and other governmental restrictions, including permits and other similar requirements, whether national, provincial, territorial, municipal, foreign or local, and whether legislative, administrative or judicial in nature; 
  1.  1.3
 Application Document  the online service application form generated by the Service Provider’s CRM system, containing a unique reference number and provided to the Customer by the Service Provider and which document is subject to these Conditions entered into between the Customer and the Service Provider; 
  1.  1.4
 Business Day  any day other than a Sunday or public holiday in the RSA, within the meaning of the Public Holidays Act, 1994; 
  1.  1.5
 Commencement Date  the earlier of the date on which the Service Provider: 

  1. accepts the order as set out in the Application Document; or 
  1. supplies the Services to the Customer;  
  1.  1.6
 Conditions  these terms and conditions, and the schedules to it, for the provision and use of the Services (including all rules, policies, procedures, and notices applicable thereto) which are set out in this document and which may be amended by the Service Provider from time to time without notice to any third party or user;  
  1.  1.7
 Customer  the Party to which the Service Provider provides the Services in terms of these Conditions, being the party to the Application Document and whose details are set out herein; 
  1.  1.8
 Fees  the monthly fees and/or rates payable by the Customer to the Service Provider in consideration for the provision of the Services as may be set out in the Service Application Form and subject to these Conditions; 
  1.  1.9
 Initial Term  the initial period for which the Services shall be provided by the Service Provider to the Customer as set out in the Application Document, or if no such period is set out therein, a period of 12 months from the Commencement Date; 
  1.  1.10
 Invoice  the monthly invoice issued by the Service Provider to the Customer setting out the Fees, which invoice shall be delivered to the email address of the Customer as set out in the Application Document; 
  1.  1.11
 Invoice Date  the date on which the Service Provider issues the Invoice to the Customer (which date shall be reflected on the Invoice); 
  1.  1.12
 Parties  the Customer and the Service Provider and their permitted assignees and successors-in-title, or any one of them as the context may require; 
  1.  1.13
 Prime Rate  the basic quoted rate of interest at which Nedcor Bank Limited lends to its customers on unsecured overdraft, as certified by any general manager of that bank, whose authority or appointment it shall not be necessary to prove; 
  1.  1.14
 RSA  the Republic of South Africa; 
  1.  1.15
 Service Agreement  these Conditions and each Application Document; 
  1.  1.16
 Service Provider  the Party providing the Services to the Customer in terms of these Conditions, being the party to the Service Application; 
  1.  1.17
 Services  the services to be provided by the Service Provider to the Customer, as selected and described in more detail in the Application Document; 
  1.  1.18
 VAT  value added tax which is levied in respect of goods and services in terms of the RSA Value Added Tax Act, 1991. 

2. INTRODUCTION 

The Customer wishes to appoint Service Provider to render the Services. These Conditions set out the terms and conditions in terms of which the Service Provider shall provide the Services to the Customer. 

3. NATURE OF THESE CONDITIONS 

3.1. By signing the Application Document, the Customer agrees to be bound by these Conditions and shall accordingly have entered into a Service Agreement with the Service Provider. No amendments made to the Application Document by the Customer shall be binding on the Company unless and until accepted by the Service Provider in writing. 

3.2. These Conditions shall, with effect from the Commencement Date, supersede any correspondence, understandings, undertakings and all other agreements concluded between the Parties in relation to the Services and the Customer acknowledges that, other than the Application Document, there are no agreements or arrangements whether written, oral or implied between the Parties relating to the Service Provider’s appointment pursuant to these Conditions, other than those expressly set out in these Conditions. 

4. APPOINTMENT 

4.1. The Customer hereby appoints the Service Provider to render the Services to the Customer on the terms and conditions set out in these Conditions, which appointment the Service Provider hereby accepts.  

4.2. The Service Provider does not make any representations nor does it give any warranty or guarantee of any nature whatsoever in respect of the Services or its suitability for any purpose, whether that purpose is notified to the Service Provider or not. 

5. SUPPORT SERVICES DEFINITIONS 

5.1. For purposes of these Support Services Conditions, unless the context indicates otherwise, the words and expressions below shall have the following meanings, and cognate expressions shall have a corresponding meaning, namely: 

5.1.1  Authorised Representatives  the representatives of the Customer set out in Schedule 1 of these Support Services Conditions who are authorised to request Support Services from the Service Provider, or any one of them as the context may require; 
5.1.2  Hardware  includes but is not limited to, the Customer’s computer terminals, laptops, tablets, smart phones, servers, switches, routers, screens, printers and peripheral equipment used to access and operate the Software; 
5.1.3  Maintenance Month  a period of one month, commencing on the first day of a month and continuing until the last day of that month; 
5.1.4  Overtime  any Support Services provided by the Service Provider to the Customer outside of the Standard Hours; 
5.1.6  Premises  the physical addresses provided by the Customer in the Application Document, at which addresses the Customer shall utilise the Services; 
5.1.7  Remote  Support Services provided from a remote location via telephone, remote access software or otherwise; 
5.1.8  Response Time  the time which it takes for the Service Provider to respond to a request for support as specified by the Application Document; 
5.1.9  Service Ticket  a request by a Customer to the Service Provider for Support Services or UTR Services by electronic mail or telephone call to the Support Helpdesk; 
5.1.10  Software  operating system and computer application software installed from time to time on the Customer’s Hardware and used by the Customer for commercial operational purposes, whether incorporated in humanly intelligible media or not; 
5.1.11  Standard Hours  mean 08h00 to 17h00 on all Business Days; 
5.1.12  Support Desk  the support helpdesk of the Service Provider, which desk may be contacted at the email address support@dialanerd.co.za and the telephone number 010 007 0012, or such other electronic mail address or telephone number of which the Service Provider may notify the Customer from time to time; 
5.1.13  Support Service Conditions  these terms and conditions, and the schedules to it, for the provision and use of the Support Services (including all rules, policies, procedures, and notices applicable thereto) which are set out in this document and attached to the Conditions and which may be amended by the Service Provider from time to time without notice to any third party or UTR User;  
5.1.14  Support Services  means: 

  1. installation of Hardware and Software, configuration, maintenance and administration of the Customer’s System at the Premises; 
  1. as a first line of response, to provide telephonic and/or remote assistance and support to the Customer within the Response Time, provided that the Customer, at its sole cost and expense, shall be obliged to install and commission a suitable router at the Premises to enable the Service Provider to obtain remote access to the System; 
  1. where telephonic and/or remote assistance and support proves unsuccessful, provide support at the Location; 
  1. general consultancy for System enhancements; 
  1. such other support of the System as may be agreed between the parties from time to time, but shall exclude proprietary hardware and/or software which requires specialized support, outside of the scope of the skillset provided by the Service Provider; 
  1. UTR Services (if applicable); 
5.1.15  System  the Customer’s computer system, incorporating the network, Hardware and Software; 
5.1.16  UTR Services  the unlimited Support Services provided telephonically and remotely by the Services Provider and invoiced on a per UTR User basis which are not measured by time and are governed by the Fair Use Policy 8 and which exclude: 

  1. Training sessions (planned, groups or anything that requires more than 10 minutes dedicated instruction in total) 
  1. New hardware or 3rd party software installations (if a new Smart device, workstation, software/game or IT system is required a pre-approved quote will be required before any work carried out)  
  1. Reoccurring faults as a direct result of end users ignoring or being unable to adopt recommendations provided by DAN; all tickets/jobs are recorded on our systems and technicians capture their work performed AND advice given. These ticket descriptions are obviously shared with the client and can be referred to at any later date.   
  1. Faults with 3rd party software which DAN is not able or authorized to work with; for example accounting software, pirated software, STEAM or online accounts for gaming, proprietary software, Alarm systems, CCTV camera’s etc 
  1. General misuse by the Customer of the System, Hardware or Software; most often physical damage but also repeated failure on the utilization of software products. 
  1. Any “projects” (as Dial a Nerd staff choose to define them) which fall outside of normal maintenance and support, each such project to be quoted and approved by the Customer separately 
5.1.17  UTR User  the UTR Users of the UTR Services which are listed in Application Document and registered with the Service Provider to qualify for UTR Services; 

6. TERM 

6.1. These Conditions shall come into force and effect on the Commencement Date and shall continue for the duration of the period of 1 year. 

6.1.1. The customer can at any stage give 30 day’s written notice to terminate the contract  

6.2. After the Initial Term, these Conditions shall automatically renew  on a month to month basis unless either Party gives 30 days written notice to the other Party that these Conditions are to terminated 

7. SUPPORT SERVICES 

7.1. The Service Provider shall use only suitably qualified employees to render the Support Services.  Should the Customer wish to change a specific employee who is assigned to it, the Service Provider shall provide the necessary training to the employee and make such a change within 30 days of receiving a written request by the Customer for such a change. 

7.2. The Customer shall inform the Service Provider of any faults on the System as soon as possible after any such fault or problem is discovered in accordance with the provisions of these Conditions and shall provide the Service Provider’s employees with reasonable access to the System including such personal access as may be required upon arrival of the employee of the Service Provider at the Premises.  

7.3. Procedure for Requesting Support Services: 

7.3.1. Any user on the user list is entitled to request Support Services and shall request the Support Services from the Support Desk by logging a request for a support call by email or telephone. 

7.3.2. Only an Authorised Representative may request password changes, restricted access or additionally billable services and shall request the Support Services from the Support Desk by logging a request for a support call by email or telephone. 

7.3.3. The Customer shall provide, at its own cost, such material and information as may be legally required by the Service Provider to render the Support Services, which shall include but not be limited to licensed copies of the Software, together with manuals therefore. 

7.3.4. The Support Desk shall: 

7.3.4.1. acknowledge, and respond to the request for Support Services, within the Response Time, provided same is logged within the Standard Hours; 

7.3.4.2. should it not be able to resolve the problem immediately, advise the Customer (to the extent that they may be able) of the estimated time to remedy any particular problem with the System, and keep the Customer appraised of any variation in the aforesaid estimate. 

7.3.5. In the event of UTR Services being included in the Application Document then the above shall apply mutatis mutandis save that all references to the Authorised Representative shall be replaced with the UTR User. It is the responsibility of the Customer to inform the Service Provider in writing of any changes to the UTR Users. 

7.4. Software: 

7.4.1. The Customer warrants to the Service Provider that all Software is lawfully licensed to the Customer and the Customer indemnifies and holds the Service Provider harmless against all and any claims in the event that such Software is not properly licensed.  

7.4.2. The Service Provider reserves the right, at its discretion, to install monitoring software on the Hardware to automatically send selective information to the Support Desk in order to improve the Support Services.  This information is only related to the Hardware it is installed upon and does not include any private data from end UTR Users or the Customer. 

8. FAIR USAGE POLICY 

8.1. This support product covers up to 5 permanent occupants of the residential property (home) of the signatory on the contract.      

8.1.1. All users need to be listed on the contract to ensure our technicians can provide the necessary support and record the user’s preferences, devices and common support requirements. 

8.1.2. Those NOT listed on the contract are not eligible for the UTR support and will be billed per hour*.  

8.2. As the name of the product stipulates, this support only includes telephonic and remote support.   

8.2.1. Any onsite work is billed per hour (including travel).  

8.3. Internet Connectivity: a reliable and fast internet connection of at least 20MB is required to properly provide remote desktop support. This connection can be fiber (FTTH), LTE or wireless, but if reliable access to the site remotely cannot be maintained, then this service offering will not be fully functional.   

8.4. There is a ‘fair use’ limit of FIVE separate tickets per device, per calendar month for unrelated incidents. As an example, if we need to repair the same computer for an assortment of problems or a particular repair is expected to take a long time the support is included in the monthly contract cost (subject to all other conditions), and no additional labour will be charged for, but should a single computer suffer varied unrelated problems the support is unlimited to five single tickets within a month. This is because numerous unrelated problems on a device are symptomatic of hardware or Operating System failure and Dial a Nerd will make a recommendation to replace, reload or repair subject to warranty terms.  

8.5. This support product is ONLY FOR HOME USERS…   

8.5.1. If you run a business from home; and your support requirements are for a device that generates income for you, then a BUSINESS UTR support model is applicable, or you will be provided support by the hour at the standard support rate.   

8.5.1. Technicians will use their judgement to determine this in the process of providing support. If they feel the support being offered is to assist a business or to generate income, they will escalate the matter to management and contact will be made with the customer.   

8.5.3. Dial a Nerd reserves its right to terminate the contract in the event of a disagreement on this matter.   

8.6. Duration of support  

8.6.1. Average resolution time limited to 30minutes “click time” per ticket/job  

8.6.1.1. In the event of support time exceeding this, a decision will be made as to whether hourly billing is applicable from an onsite technician.   

8.6.2. Multiple tickets can be raised within the month by different contracts for different devices (subject to other conditions)   

8.7. Our Technicians are experienced in removing and dealing with Virus’, Malware and Spyware but given their very nature (and the varying causes of infection), we are unable to provide any extended warranty for onsite or offsite support. Our Technicians will typically perform all the necessary tests to diagnose and remove any infections as best as possible, causing as little disruption to you, your computer and your applications as possible but, given the repair options vary from “do nothing” to “wipe the computer”, the varying repairs can have equally varying results.   

8.7.1. Importantly, in some instances, Virus’ and Malware programs are designed to cause as much havoc when removed as when in place, meaning the removal can often leave a computer in a more fragile state than when infected. In these instances, we will continue to provide any support as required but cannot be held responsible for damages caused as a result of any attempted repairs.    

8.8. NB: In the result of unrepairable damage to the operating system of the machine our professional advice will be a complete “Backup, Format and Reinstall” of the operating system and all software originally installed. This cannot be done remotely and therefore the computer will need to be brought into the office, or a technician booked to attend to the matter onsite.   

8.9. All Customers should ensure they have a working, reliable backup of all their data and important information before requesting any support, resulting in potentially ‘aggressive’ repair solutions. Dial a Nerd can never take responsibility for data, nor can we be held liable for data lost during the execution of our support. The client must have their data in at least 2 separate locations.    

8.10. Dial a Nerd reserves its right to amend the fair use policy at any stage as it deems necessary in the logical and sensible provision of this “unlimited” support offering. Maintaining profitability while still providing a suitable service to our customers is the goal of this company and with that in mind, our service offerings are always subject to change.  https://dialanerd.co.za/home-user-utr-fair-usage-policy-and-terms-and-conditions   

9. FEES, PAYMENT AND PAYMENT FACILITIES 

9.1. General: 

9.1.1. The monthly subscription will be pre-paid via a scheduled payment on the commencement date; This payment will be completed via the service providers website on a credit card of the clients choice.  

9.1.2. All payments shall be made in RSA Rand and cents, free of set-off, bank exchange and other charges. 

9.1.3. The Customer acknowledges and agrees that the Service Provider shall be entitled, on 30 days’ written notice to the Customer, to increase the monthly Fees payable by the Customer in relation to the Services, provided that such an increase may only occur after the first 12 months of these Conditions and may not occur more than once in any subsequent 12 month period. 

9.2. Unpaid Invoices and/or Fees: 

Should any amount due by the Customer to the Service Provider not be paid by the Customer on due date then: 

9.2.1. Support will immediately be revoked by the service provider.  

9.2.2. all amounts owed by the Customer shall at once become due, owing and payable;  

9.2.3. the Customer shall be liable to pay interest in respect of amounts unpaid as at due date at the rate of 2% above Prime Rate per month, from the due date until the date of full payment of the outstanding amount; 

9.2.4. the Customer shall in addition pay any legal costs incurred by the Company on the attorney and own client scale, including collection commission; 

9.2.5. the Service Provider shall be entitled to cease supplying the current Services to the Customer and/or refuse the supply of new services to the Customer until such time as it receives payment in full of the outstanding amounts (including any interest accrued thereon). 

9.3. Onsite support shall be on an ad-hoc basis and must be requested by the Authorised Representative and approved and booked by the Service Provider. Onsite Support shall be charged at the Service Provider’s prevailing rate, unless otherwise agreed in writing by the Parties. 

10. SERVICES 

10.1. The Service Provider shall: 

10.1.1. render the Service to the Customer for the duration of these Conditions; 

10.1.2. exercise all reasonable skill, care and diligence in the provision of the Services to the Customer pursuant to these Conditions; 

10.1.3. provide the Services to the Customer in conformity with sound business practice and in compliance with any relevant law, statute or regulation; 

10.1.4. ensure that it at all times has such suitably competent, skilled and experienced staff resources at its disposal as are necessary for it to provide the Services to the Customer on the basis contemplated in clauses 10.1.2 and 10.1.3.  

11. GENERAL OBLIGATIONS OF THE CUSTOMER 

11.1. When using the Services, the Customer shall: 

11.1.1. comply with all restrictions imposed on computer networks through which any information and/or data transmitted by the Customer passes; 

11.1.2. not commit nor attempt to commit any act or omission which directly or indirectly: 

11.1.2.1. damages in any way the Service Provider’s technical infrastructure or any part thereof; 

11.1.2.2. impairs or precludes the Service Provider from being able to provide the Services in a reasonable and businesslike manner; 

11.1.2.3. constitutes an abuse or malicious misuse of the Services; 

11.1.2.4. or is calculated to have the abovementioned effect; 

11.1.3. not modify any equipment (including but not limited to router equipment) utilised by the Customer to receive any of the Services, in any way whatsoever, including the changing of any of the settings of such equipment; 

11.1.4. not at any time use the Services in contravention of any Applicable Laws.  In particular, the Customer undertakes to familiarize itself and ensure that it is kept continuously appraised of all Applicable Laws which has any bearing on the Services and/or their use.  

11.2. The Customer is responsible to ensure that its hardware and software is properly secured and insured at all times against any and all risk (including but not limited to theft, lightning damage, unauthorised access and so forth). 

11.3. The Service Provider not be responsible for: (i) the Customer’s software, applications and/or any component thereof required and used by Customer; (ii) the licensing of Customer’s software, application and/or any component thereof required and used by Customer. Any failure to license such software and/or application correctly may result in the termination and/or suspension of these Conditions and/or any Services and the Customer furthermore indemnifies the Service Provider from any losses, damages, costs, claims, penalties or fines of whatever nature resulting from the Customer’s failure to license the software and/or applications correctly and/or at all. 

12. PERSONAL INFORMATION 

12.1. By requesting and utilising the Services, the Customer consents to: 

12.1.1 the Service Provider recording and storing the Customer’s personal details for record-keeping purposes and in order to comply with its obligation in terms of these Conditions; 

12.1.2. the Service Provider providing the Customer’s personal details to any law enforcement agencies upon it being requested to do so; 

12.1.3. the Service Provider using location based services for any lawful or third party service;  

12.1.4. Cookies being stored to provide customized services (if any); 

12.1.5. certificates being stored; 

12.1.6. the Service Provider, third party vendors / partners redirecting the Customer to third party vendor payment processing partners; and   

12.1.7. the Service Provider making the Customer’s personal information available to its Affiliates, provided that such personal information will not be provided to or sold to any third parties which are not Affiliates of the Service Provider without the prior written consent of the Customer.  

13. CONFIDENTIALITY 

Each Party shall keep strictly confidential all information supplied to or acquired by it in connection with any terms of these Conditions, and shall not use such information or any part thereof for any purpose other than expressly permitted under these Conditions.  

14. LIMITATION AND VARIATION OF SERVICES 

14.1. General Limitations and Variations  

14.1.1. The Customer acknowledges and agrees that: 

14.1.1.1. the Service Provider may establish limits in relation to the use of the Services;  

14.1.1.2. the Service Provider has no responsibility for and/or is not liable for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Service Provider service;  

14.1.1.3. the features, parameters (for example, the amount of storage available to users) or existence of any Service may change at any time and the Service Provider endeavors to notify the Customer if any such changes will affect it. 

14.2. Reliance on Third Parties: 

14.2.1. The Service Provider hereby advises the Customer that the Service Provider does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide separate but interrelated and connected services which as a whole, allows the infrastructure of the Service Provider to function. These third parties operate as independent service providers who are not necessarily contracted by the Service Provider and the Customer accepts and acknowledges this fact.     

14.2.2. Whilst the Service Provider shall use all reasonable endeavours to ensure that the Services are operational at all times, the Service Provider does not (and cannot) warrant that the Services will be operational on a 24 hour / 365 days per year basis, this being due to the nature of the telecommunications industry, which is dependent on the actions and/or input of a number of independent third parties whom the Service Provider has no direct control over. Accordingly, the Service Provider shall not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services which have been interrupted / non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether the Service Provider has entered into a service level agreement with such third party).  

14.2.3. Notwithstanding the provisions of this clause14.214.2.2, the Service Provider shall use its best endeavours to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where the Service Provider is in a position to do so.  

14.2.4. The Service Provider shall use reasonable endeavours to liaise and engage with the third party service providers in order to ensure that the Services can recommence as soon as possible after any interruption thereto. 

15. INDEMNITY AND LIMITATION OF LIABILITY 

15.1. The Customer agrees to indemnify the Service Provider (and its Affiliates) and at all times keep it indemnified against all losses, claims, expenses, damages, liabilities, actions demands, proceedings and judgements whatsoever in relation to or arising directly or indirectly out of the provision by the Service Provider of the Services and/or any refusal or failure by the Customer to timeously and duly implement network and system security recommendations of the Service Provider, and the Customer will reimburse the Service Provider from time to time for all costs and expenses (including legal and other professional fees) that the Service Provider may reasonably incur in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration in which the Service Provider (or its Affiliates) is a party and whether or not resulting in any liability on its part, except to the extent that such action or claim is found in final judgement to be the direct result of the Service Provider’s fraud, gross negligence or breach of these Conditions.  

15.2. The Service Provider will not be liable to the Customer, or any third party claiming through or on behalf of the Customer, in respect of any claim whatsoever, whether in contract, delict or otherwise, for any loss, damages, costs or expenses directly or indirectly incurred as a result of the provision by the Service Provider of the Services, except to the extent that such losses, damages, costs or expenses incurred by the Customer are found in final judgement to be the direct result of fraud, gross negligence or breach of these Conditions by the Service Provider.  In these or any other circumstances, the maximum amount of the liability of the Service Provider in respect of such losses, damages, costs or expenses will be limited to the amount of Fees that have been paid to the Service Provider by or on behalf of the Customer in connection with the Services.   

16. WARRANTIES 

The Service Provider does not make any representations nor, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose, nor that the Services will be error-free, secure or uninterrupted. 

17. FORCE MAJEURE 

The Customer shall not have any claim of any nature whatever against the Service Provider for any failure to carry out any of its obligations under these Conditions as a result of force majeure, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, riot, political or civil disturbances, the elements, any act of any State or Government or any other authority or any other cause whatever beyond the control of the party in question. Should the circumstances endure for a continuous period of more than 3 months either Party may terminate these Conditions with immediate effect with written notice to the other Party. 

18. TERMINATION AND BREACH 

18.1. Either Party may terminate this Agreement forthwith and on notice in writing to the other Party if the other Party breaches any other term of this Agreement and fails to remedy such breach within 15 Business Days of having been given written notice calling for such breach to be remedied.   

18.2. For the purposes of clause 18, the Service Provider may terminate these Conditions forthwith and on notice in writing if the Customer: 

18.2.1. fails to pay any amount due by it to the Service Provider after having received 10 Business Days written notice from the Service Provider that is it is required to do so; or 

18.2.2. is placed under judicial management or liquidation or is sequestrated (whether provisionally or finally) or takes any steps for the surrender of its estate or composition with its creditors or becomes subject to business rescue proceedings; or 

18.2.3. has any judgment taken against it and fails to satisfy the same within 15 Business Days thereof. 

18.3. The Service Provider shall not by reason of the termination or cancellation of this Agreement be liable to the Customer for compensation, reimbursement or damages either on account of present or prospective profits on sales or anticipated sales, or on account of expenditures, investments or commitments made in connection therewith or in connection with the establishment, development or maintenance of the business or goodwill of the Customer, or on account of any other cause or manner whatsoever, provided.   

19. NON-SOLICITATION  

19.1. For so long as these Conditions remain in force and effect, and for a period of 1 year thereafter, the Customer shall not solicit or endeavour to entice away for employment from the Service Provider any person who is or was in the full time employment of the Service Provider (“Employee”). 

19.2. If a Customer fails to comply with clause 19.1 then the Customer hereby agrees to and shall immediately, upon written demand by the Service Provider to do so, pay to the Services Provider (as a finder’s fee) an amount equal to the gross annual salary of the Employee as at the last date of current financial year of the Service Provider.   

20. NOTICES 

Notices required by these Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery, fax or by email to the address or number set out in the Application Document. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th business day after posting. Emails and faxes will be deemed to be received on the business day they are sent if sent before 16h00 on that day or on the next business day thereafter is sent after 16h00 on a business day or if sent on a non-business day. 

21. COUNTERPARTS 

These Conditions may be signed in any number of counterparts and all such counterparts taken together shall constitute one and the same Condition. 

22. INCORPORATION BY REFERENCE 

The Parties agree that the terms and conditions set out on the Service Provider’s website at https://dialanerd.co.za/terms-and-conditions (as may be amended by the Service Provider from time to time) are hereby incorporated into, and form part of these Conditions and are binding on the Parties. 

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