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Terms of Service
OTEL VoIP and Broadband Service Subscriber Agreement
This Agreement (“Agreement”) is between OTEL Telecoms and a user of OTEL VoIP and Broadband Services as described below. This Agreement governs both the services described below and any devices provided by OTEL Telecoms for use in conjunction with the services, including but not limited to the “OTEL Equipment” (as defined herein). In this Agreement, “you” and “your” mean the customer of the OTEL Telecoms services defined below, and “OTEL,” “we,” “our,” and “us” mean OTEL and any OTEL affiliates authorized to provide you with OTEL services.
By breaking the seal on the package (“SEAL”), Enrolling in, activating, using, or paying for the services, you agree to the terms and conditions in this agreement and to the prices, charges, terms and conditions provided to you with respect to the service during the service registration process, including in marketing materials associated with your offer, and on the OTEL Telecoms Website, all of which are incorporated herein by reference. If you do not agree to all of the aforementioned terms and conditions, do not use the services, and cancel the services immediately by calling OTEL at 08000 60002 for further directions.
Short Term Contract
Unless a long term contract has been signed, service is offered on a monthly basis for a term which begins on the date that OTEL activates your Service and ends on the day before the same date in the following month. The billing recurrence is on the 28th of every month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give OTEL a one month notice of non-renewal. If you terminate Service prior to the end of a contract term, you will be responsible for the duration of the contract) charges to the date of termination, including without limitation unbilled charges, plus a disconnect fee if applicable, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse you from paying all unpaid, accrued charges due in relation to the Agreement.
OTEL VoIP service is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol (“IP”) and carried, in part, over high-speed internet access, also known as broadband internet service. This service may be generically referred to as “voice over IP”. It is separate and distinct from standard Local, Local Toll and Long-Distance services. “Service” or “Services” is defined to include Voice over IP unlimited local and nationwide direct dialed calling within South Africa and certain calling and call management features or advanced features associated with the Service, including additional features or advanced features which OTEL, in its sole discretion, may add, modify, or delete from time to time.
OTEL’s Service does not support 0+ calling (including without limitation collect calling). OTEL’s Service may not support certain special Telkom numbers services in one or more (or all) service areas. OTEL’s Service does not connect calls to phone numbers in Area Code/Prefix combinations used by third party Reverse Billing Services. The list of blocked numbers is subject to change by OTEL without notice to Customer.
You acknowledge and understand that the OTEL VoIP Service is not a PSTN telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the Service provided by OTEL. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before ICASA regulatory agency.
OTEL VoIP service requires: (a) specialized customer premises equipment called a telephone adapter (“TA”, “Device” or “OTEL Equipment”) or SIP device obtained through OTEL or a third party that allows connectivity from a regular telephone handset (which you need to supply) to your broadband connection and which you are responsible for installing yourself pursuant to instructions provided to you by OTEL; and (b) a broadband connection via cable modem (2-way cable) or DSL with sufficient broadband capability you have a right to use at your own expense. Since voice over IP is dependent on the broadband connection, the availability of an adequate power supply and correct configuration, OTEL does not guarantee that the service will be continuous or error-free. In addition, Service may, from time to time, be interrupted for equipment, network, or facility upgrades or modifications.
Broadband Internet Service is a last mile connectivity service that provides Voice and/or Internet Connectivity either using Wireless, Fibre, Diginet, etc.
Diginet Services are based on Telkom’s Legacy Copper Network and are facing difficulties in performance and maintenance due to lack of spares for the old Exchange Equipment therefore there is no Service Level Agreement to be met with and the service is entirely best effort.
Privacy and Security
Voice over IP (VoIP) communication utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that OTEL cannot guarantee that voice over IP communication is private or secure. OTEL is not liable for any lack of privacy or security that you may experience with regard to the Service.
There are Government and ICASA Regulatory rules governing the use and disclosure of certain information that OTEL obtains from you in its provision of VoIP services to you. This information is known as Customer Proprietary Network Information (“CPNI”). CPNI relates to the quantity, technical configuration, type, destination, location and amount of VoIP service that you subscribe to. OTEL may not, without notifying you of your rights and obtaining your consent, access or use this information to market services to you other than the types of services you already receive from OTEL. Nor may OTEL, without notifying you of your rights and obtaining your consent, disclose your CPNI to its agents, affiliates, joint venture partners or independent contractors for the purpose of marketing services to you. A more detailed explanation of your CPNI rights and how you may provide or withdraw your consent for OTEL to access, use or disclose your CPNI may be found by logging into your OTEL Client Area ( http://billing.otelafrica.com ).
Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by OTEL
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which may or may not be provided by OTEL) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider (“ISP”) and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or OTEL terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 10111 calling feature. Should OTEL suspend or terminate your Service, the Service will not function until such time as OTEL restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
Home Security Systems and other Non-voice Communications Equipment
All non-voice communications equipment, including but not limited to, home security systems that are set up to make automatic phone calls, opening of gates and medical monitoring devices, are not compatible with OTEL VoIP service, and fax machines and modems may not be compatible with OTEL VoIP service. By accepting this Agreement, you waive any claim against OTEL for interference with or disruption of such systems due to the Services.
Local Number Portability
In the event you are not utilizing a new phone number for your OTEL VoIP service, but rather are transferring an existing phone number, which currently is subscribed to a carrier other than OTEL for local, long distance and international telephone services, to OTEL VoIP service, the terms and conditions of this paragraph shall apply:
You hereby authorize OTEL to process your order for OTEL VoIP service and to notify your local telephone company of your decision to switch your local, local toll and long distance services to OTEL VoIP service, and represent that you are authorized to take this action;
you agree and acknowledge that if you set up your TA or telephone prior to the date that the number switch becomes effective (“Port Effective Date”), you may only be able to make outgoing calls over the phone you have connected to the TA or the SIP device. In such event, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able to both make and receive calls using the OTEL VoIP service; and,
you agree and acknowledge that if your TA is not yet activated as of the Port Effective Date, your existing phone service for the number you are transferring may be disconnected and you may have no service for that line. Therefore, to avoid an interruption in your phone service, it is extremely important that you install the TA prior to, or on, the Port Effective Date. An estimate of the Port Effective Date will be sent to you via e-mail by OTEL following your completion of the ordering process.
Number Transfer on Service Termination
OTEL or its providers may receive requests from other telephony providers (Requesting Party) acting as agents on your behalf to port a telephone number currently assigned to you to a third party provider (“Port-Out”). OTEL will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and OTEL’s or its vendors’ standard operating procedures. Note that you will be responsible for all monthly, usage and disconnect fees associated with your Service until the Port-Out date of completion or last date of your service period, whichever comes last.
Lawful, Non Fraudulent Use of Service and TA
You agree to use the Service and TA only for lawful purposes. You will not use the Service or TA for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (1) interferes with our ability to provide Service to you or other customers; or (2) avoids your obligation to pay for communication services. If OTEL has reason to believe that you or someone else is abusing the Service or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Service without advance notice. While we encourage use of the Service within South Africa to other countries, OTEL does not presently offer or support the Service to customers located in other countries. The service is intended for use only in the South Africa. If you remove a Device to a country other than South Africa and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless OTEL against any and all liability for any such use. Should removal of the Device from South Africa violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless OTEL against any and all liability for such violation. If OTEL determines that you are using the Service frOm outside of South Africa OTEL reserves the right to terminate your service immediately and without advance notice, leaving you responsible for all outstanding charges, all of which immediately become due and payable.
Residential/Enterprise Use of Service and Device-Prohibition on Resale
If you have subscribed to OTEL Voice, the Service and Device are provided to you for your individual use. This means that you are not using them for any unauthorized activities including but not limited to continuous or extensive call forwarding, fax broadcast, fax blasting or any prohibited activity that would be inconsistent with normal commercial usage patterns. This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from OTEL in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any unauthorized purpose will obligate you to pay OTEL’s higher rates for such services for all periods, including past periods, in which you use, or used, the Service for unauthorized purposes. OTEL reserves the right to immediately terminate or modify the Service, if OTEL determines, in its sole discretion, that the Service is being used for unauthorized use.
Theft of Service
You agree to notify OTEL immediately, in writing or by calling the OTEL customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as OTEL receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
Ownership and Risk of Loss
You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to this Agreement and has been received by OTEL. The user must insure the device. All replacement devices will be billed for.
Prohibited Uses of Service
You are expressly prohibited from reselling or transferring the Service or OTEL Equipment to any other person for any purpose, without express written permission from OTEL in advance. In addition, you are expressly prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for uses that result in excessive usage inconsistent with normal commercial or home office usage patterns. If OTEL determines, in its sole discretion, that you are reselling or transferring the Service or that your Service is being used for any of the aforementioned activities, OTEL reserves the right to immediately terminate without advance notice or modify the Service and to assess additional charges for each month in which excessive usage occurred.
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in OTEL’s sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. OTEL reserves the right to terminate your service immediately and without advance notice if OTEL, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at OTEL’s discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless OTEL against any and all liability for any such use. If OTEL, in its sole discretion believes that you have violated the above restrictions, OTEL may forward the objectionable material, as well as your communications with OTEL and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
An existing OTEL customer (“Existing Customer”) may not, via phone or online account access, establish a new user associated with his or her account where the person on whose behalf the new user was established (“New Person”) would have a reasonable expectation of privacy with regard to the CPNI associated with the services the New Person receives from OTEL. Such a reasonable expectation is present if such New Person would consider himself or herself to be a OTEL customer, separate and apart from the Existing Customer.
Copyright / Trademark /Unauthorized Usage of Device, Firmware or Software
The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on OTEL’s website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of OTEL are and shall remain the exclusive property of OTEL and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a non-transferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that OTEL will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by OTEL, which OTEL reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless OTEL against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
Tampering with the Device or Service
The telephone equipment will be configured for your exclusive use of the service purchased on the broadband connection designated by OTEL. Unless expressly authorized to do so by OTEL you shall not tamper with the telephone equipment, modify its configuration or try to directly access it in any way. You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from OTEL. OTEL reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
Free Trial – VOIP Services Only
During the 30 day trial the customer is not billed for any equipment or services. The Credit Card that is given at the initial order will only be pre-authorized for the equipment and one month of service. At the end of the trial if the customer is happy with the service and has not notified OTEL of cancellation the equipment and one months service will be applied to the credit card that the pre-authorization was obtained. This credit card will also be used for the on going monthly billing of the service unless otherwise requested by the customer.
To cancel your service, contact our main office that is located on the website and request cancellation. You can alternately send a request to [email protected] is the responsibility of the customer to ship back the provided equipment within the 30 day trial period to be credited for the hardware and services. The customer bears the cost of the return shipping to our Headquarters address located on the website.
If you decide to not continue service with OTEL during the 30 Day Trial, your credit card will be charged only in the case that the equipment is not returned, not returned during the free trial period or is returned and damaged. If you return the equipment in original packaging and in excellent working order, the authorization will expire and no charges to your card will take place if within the above timeframes.
Cancellation of Service
Cancellation may take up to two business days to become effective for VoIP services and a one months notice is required for out of contract Broadband services(Terms and Conditions Apply).
Your credit card will be charged for any remaining usage charges after contacting OTEL to cancel your Service.
OTEL reserves the right to discontinue furnishing services, cancel your account, and/or block your access to the OTEL network, without incurring any liability, immediately and without notice if OTEL deems that such action is necessary to prevent or to protect against fraud or to otherwise protect OTEL’s personnel, agents, facilities, or services. Without limitation, OTEL may take such actions if:
You refuse to furnish information or furnish false information that (i) is essential for billing; or (ii) pertains to your creditworthiness, your past or current use of common carrier communications service, or your planned use of such service;
You indicate that you will not comply with a request for security for the payment for services;
Your service usage charges exceed established parameters based on your history of usage, which may indicate a likelihood of non-payment or possible fraud;
You have been given notice by OTEL of any past due amount (which remains unpaid, in whole or in part) for any of OTEL’s or an affiliated carrier’s service to which you either subscribe or had subscribed or used;
You either refuse to pay when billed for service or indicate to OTEL or an entity billing on OTEL’s behalf that you do not intend to pay for service used by you;
You use, or attempt to use, service with the intent to avoid the payment, either in whole or in part, of the charges for the service by (i) using or attempting to use service by rearranging, tampering with, or making connections to service in an unauthorized manner; or (ii) using tricks, schemes, false or invalid numbers, false credit devices, or other fraudulent means or devices;
You act, or fail to act, in a manner that hinders or frustrates any investigation by OTEL or others having legal authority to investigate your legal obligations;
You were previously provided with notice of breach of contract, took corrective action, but thereafter engage in the same breach activity; or
You act in a manner that is threatening, obscene, harassing, or abusive to OTEL personnel. Should your telephone equipment stop performing according to the standard OTEL service requirements, OTEL reserves the right to temporarily restrict your access to the service and the network until OTEL resolves the issue.
OTEL reserves the right to discontinue furnishing services, cancel your account, and/or block your access to OTEL’s network, without incurring any liability, immediately upon written notice to you if:
Any invoice charges remain outstanding and owed by you after the 30th day from the date of the invoice notifying you of the charges; or
You fail to comply with a request by OTEL for security for the payment for services.
The discontinuance of service(s) by OTEL pursuant to these provisions does not relieve you of any obligation to pay OTEL for charges due and owing for service(s) furnished up to the time of discontinuance.
Billing and payment for service
OTEL will render to you monthly on-line bills for OTEL VoIP service, with the following charges depending on your calling plan:
a monthly service fee for your OTEL Voice plan and
any other additional services signed up with OTEL, as listed in your Client Area
airtime is sold strictly Pre-Paid, unused airtime is non-refundable upon cancellation by client or due to breach of AUP (Access User Policy).
OTEL will render to you monthly on-line bills for OTEL Broadband service, with the following charges depending on your solution required:
a monthly rental fee for your Last Mile Connectivity and
any other additional services signed up with OTEL, as listed in your Client Area
Regulatory recovery fees.
You may be charged activation, recovery and other fees. You may incur charges or be required to order a different type of service plan if you change your phone number after your OTEL VoIP service has been activated. Where you obtained your TA directly from OTEL, OTEL also reserves the right to charge for shipping charges associated with the TA.
OTEL will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which OTEL decides to bill in arrears) to your credit card or you need to pay by EFT via our Payment Gateway (currently Payfast), including but not limited to: activation fees, monthly Service fees, long distance usage charges, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. OTEL reserves the right to bill at more frequent intervals if the amount due at any time exceeds ZAR1000. Any usage charges will be billed in increments that may be rounded up to the nearest minute except as otherwise set forth in the rate schedules found on OTEL’s website.
You may be charged activation, recovery and other fees. You may incur charges or be required to order a different type of service if the quoted service is not feasible. Where you obtained your equipment directly from OTEL, OTEL also reserves the right to charge for shipping charges associated with the equipment.
OTEL will bill all charges, applicable taxes and surcharges monthly in advance to your credit card or you need to pay by EFT via our Payment Gateway (currently Payfast), including but not limited to: activation fees, installation fees, monthly Service fees, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges.
Commencement of Billing
You are responsible for self-installing the telephone equipment and/or router once you receive it. Where you purchase the telephone equipment directly from OTEL, once your order is processed and the Service is provisioned, we will ship you the telephone equipment by 5 day mail, and will begin monthly billing for the Services promptly after the telephone equipment shipment date (we refer to this date as the “Service Activation Date”). You are encouraged to complete installation of the telephone equipment and/or router promptly because you will be responsible for full payment for the charges on your OTEL bill even if you have not yet installed the telephone equipment and/or router and used the Service at the time the bill is rendered.
Price Changes and other Modifications
Notwithstanding any terms to the contrary regarding price changes in the Pricing Guarantee as found in OTEL’s general Terms of Service, or anything else therein, OTEL may change the prices and charges for OTEL services and/or long distance and international calling from time to time. We may decrease prices without providing advance notice. Increases to the prices or charges for the Services and/or international calling are effective no sooner than fifteen days after we post them on our web site. Increases to charges that recover our costs associated with government programs are effective no sooner than 5 days after we post the increases on our web site.
If we increase the monthly service fee (as distinct from long distance call charges, international call charges or regulatory recovery fees) and you would be charged a cancellation or other fee to cancel that Service, or we modify a material term of our Agreement with you and the modification would be materially adverse to you, we will notify you of the increase or modification (as provided herein) and you can cancel the Service without paying the cancellation or other fee (which is your only remedy) by following the cancellation instructions in the notice. If you do not cancel the Service by following the instructions in the notice, then you agree to the increase or modification, even if you paid for Service in advance. If the notice does not say how long you have to cancel, then it is within 14 days after the date of the notice. If we increase charges for Service to which no cancellation or other fee to cancel service applies, we will notify you of the increase, but you will still be responsible for any cancellation fee applicable to any Services you may have if you cancel Service.
Charges and Billing
Charges accrue through a full billing period. To determine the charge for each international call, we may round up to the next full minute for any fraction of minutes used. We will determine the format of the bill and the billing period, and we may change both the bill format and the billing period from time to time. OTEL Telecomss is not liable for any malfunction on equipment or software which may cause billing errors and loss of income.
If you make use of any toll free feature that is or may be offered by OTEL in the future, you acknowledge and agree that OTEL is entitled to recover from you any charges imposed on OTEL by payphone owners or operators, either directly or indirectly through OTEL’s suppliers in connection with toll free calls made to your number, or any charges imposed on OTEL by its suppliers to recover such costs. OTEL may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as OTEL deems appropriate for the recovery of these costs.
Failure to Pay
Upon advance notice, we may suspend, restrict, or cancel the Services and this Agreement, if you do not make payments for current or prior bills by the required due date. Service suspension or cancellation will result in your loss of the number associated with the Service.
Late Payment Charge & Billing Disputes
Acceptance of late or partial payments (even if marked “Paid in Full” or with other restrictions) shall not waive any of our rights to collect the full amount of your charges for the Service. You must notify OTEL in writing within 7 days after receiving your credit card statement if you dispute any OTEL charges on that statement or such dispute will be deemed waived. Billing disputes should be directed to OTEL.
You agree to reimburse us for reasonable attorneys’ fees and any other costs associated with collecting delinquent or dishonored payments. If charges cannot be processed through your credit card, we will charge you an additional ZAR250.00.
You are responsible for, and shall pay, any applicable governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide OTEL with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date OTEL receives such certificate.
No Credit Allowances for Interruption of OTEL service
You acknowledge and agree that the Services are provided “as is/best effort”. Credit allowances for interruption of OTEL service, including international calling services, will not be provided.
There are no commitment times on the times taken to repair a faulty copper Diginet Link or Exchange by the provider and hereby release OTEL Telecoms from all liabilities and loss of income experienced from the poor or no performance of this link.
You agree to defend, indemnify, and hold OTEL, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with this agreement or the service, harmless from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, you or any third party or user of your service, relating to or arising out of the services, the telephone adapter, or its installation, or this agreement, including, but not limited to the lack of some code dialing or dialing associated with a security system. This paragraph shall survive termination of this agreement.
You agree that OTEL should not be responsible for any third party claims against us that arise from your use of the services. Further, you agree to reimburse us for all costs and expenses related to the defense of any such claims, including attorneys’ fees, unless such claims are based on our willful misconduct or gross negligence. This provision will continue to apply after the agreement ends.
Limitations of Liability
By enrolling in, activating, using or paying for the services, you agree that you have read this agreement and understand the limitations of OTEL service described herein.
OTEL’s liability to you on account of any act or omission of OTEL related to this agreement, including acts or omissions related to emergency dialing, shall be limited to actual damage to real or tangible personal property, or bodily injury or death proximately caused by OTEL’s intentional misconduct or recklessness. Except for damages that are the direct result of OTEL’s willful or intentional misconduct, you will not be entitled to any other damages, including indirect, software/hardware malfunction or consequential damages, regardless of the form of action. OTEL and our employees, agents, contractors and representatives will have no liability whatsoever for any unauthorized access, damages or modifications to, or loss or destruction of, any of your software, files, data or peripherals or for copyright, trademark, patent, trade secret or other intellectual property infringement.
OTEL shall not be liable for any delay or failure to provide the Service, including emergency dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
act or omission of an underlying carrier, service provider, vendor or other third party;
equipment, network or facility failure;
equipment, network or facility upgrade or modification;
force major events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
equipment, network or facility shortage;
equipment or facility relocation;
service, equipment, network or facility failure caused by the loss of power to you;
outage of your ISP or broadband service provider (including where OTEL is your ISP or Broadband service provider);
act or omission of you or any person using the Service or Device provided to you; or
any other cause that is beyond OTEL’s control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, or degradation of voice quality.
Further, OTEL shall not be liable to you or others for any damages arising from the content of any data transmission, communication or message transmitted to or received by you (whether read or unread, solicited or unsolicited), or losses resulting from any goods or service purchased or messages received or transactions entered into through the Service.
OTEL’s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to OTEL’s performance or non-performance hereunder or (iii) any OTEL act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
Disclaimer of Damages
Except as provided above, in no event shall OTEL, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to you in connection with this agreement or the service be liable for any direct, incidental, indirect, special, punitive, exemplary or consequential damages, or for any other damages, including inability to be able to dial to access emergency service personnel through the service. The disclaimer and limitations set forth herein apply to claims founded in breach of contract, breach of warranty, product liability, tort and any and all other theories of liability and apply whether or not OTEL was informed of the likelihood of any particular type of damages.
Some states do not allow the exclusion or limitation of certain damages, or other modifications of or limitations to certain remedies, so the above exclusion or limitation may not apply to you, in whole or in part.
No Warranties on Service
OTEL makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the service will meet your requirements. Without limiting the foregoing, OTEL does not warrant that the service will be without failure, delay, interruption, error, degradation of voice quality or loss of content, data or information. Statements and descriptions concerning the service or device, if any, by OTEL or OTEL’s agents or installers are informational and are not given as a warranty of any kind. We do not authorize anyone, including, but not limited to, OTEL employees, agents or representatives, to make a warranty of any kind on our behalf and you should not rely on any such statement. The services are sold as Best effort and no SLA is included.
No Warranties, or Limited Warranties, for Devices
If you received the Device new from OTEL and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If your Device did not include a limited warranty from OTEL at the time of receipt, you agree that it accepts the Device “as is” and that you are not entitled to replacement or refund in the event of any defect. Any limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, retailer handling or customer handling. Your sole remedy for any breach of any limited warranty is to obtain a repaired or replacement Device, by following the OTEL return procedures. You must include with the returned Device a letter stating that the you are returning the Device for warranty repair or replacement and stating the nature of the defect.
Other than warranties as to the device expressly set forth in documentation provided with the device OTEL makes no warranties of any kind, express or implied, and specifically disclaims any warranty of merchantability, fitness of the device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the, device or any firmware or software is “error free” or will meet your requirements. The foregoing will not be deemed to limit any disclaimer or limitation of warranty set forth in the documentation provided with the device.
Dispute Resolution and Mandatory Arbitration
You agree that you will first negotiate with us in good faith to settle any claim or dispute between you and us in any way related to or concerning the agreement, or our provision to you of the Service or a Device (“claim”). You must send a written description of your claim or by post to start this process.
Instead of suing in court, you agree that any claim that has not be resolved after our good faith negotiation must be submitted to final, binding arbitration with ICASA under its published regulatories, which are a part of this Agreement by this reference and are available by calling the ICASA at 011 566 3000 or visiting its web site at www.icasa.org.za You must serve our contact (by post at OTEL Telecoms ATTN: Contracts Management) with a notice of an arbitration in order to begin an arbitration. This agreement to arbitrate extends to claims that you assert against other parties, if you also assert claims against us in the same proceeding. The Agreement involves interstate commerce and the Electronic Communications Act under this Agreement. An arbitrator may only award as much relief as a court having jurisdiction in the place of arbitration, limited to the same extent that a court would limit such relief and consistent with the provisions of this Agreement. An arbitrator may order injunctive or declaratory relief (so long as that injunctive or declaratory relief does not apply beyond your dealings with us) or summary judgment under applicable law. ICASA has a fee schedule for arbitrations. You will pay your share of the arbitrator’s fees. You and we agree to pay our own other fees, costs and expenses including those for counsel, experts, and witnesses.
Neither you nor we may be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. While the prohibition on consolidated or class-wide proceedings in this Agreement will continue to apply: (a) you may take claims to small claims court, if they qualify for hearing by such court and (b) if you fail to timely pay amounts due, we may assign your account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement, as explained in the “Late Payment Charge & Billing Disputes” section above.
You and OTEL acknowledge and agree that this section waives any right to a jury trial or participation as a plaintiff or as a class member in a class action. If a court or arbitrator determines that your waiver of your ability to pursue class or representative claims is unenforceable, this arbitration agreement will not apply and our dispute will be resolved by a court of appropriate jurisdiction, other than a small claims court. Should any other provision of this arbitration agreement be deemed unenforceable, that provision shall be removed, and the agreement shall otherwise remain binding.
No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, right of reimbursement, or cause of action or creates any other third party beneficiary rights.
Acts Beyond Our Control
Neither you nor we will be responsible to the other for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control, except that you must pay for any Services used.
OTEL can assign all or part of our rights or duties under this Agreement without notifying you, and without such assignment being considered a change to the Agreement. In such cases, OTEL will have no further obligations to you. You may not assign this Agreement or the Services under any circumstances without our prior written consent. Subject to these restrictions, this Agreement will bind the heirs, successors, subcontractors, and assigns of the respective parties, who will receive its benefits.
Notices from you to OTEL must be provided as specified in this Agreement. Notice from you to OTEL made by calling OTEL is effective as of the date that our records show that we received your call. OTEL’s notice to you under this Agreement will be provided by one or more of the following: posting on our web site, recorded announcement, bill message, bill insert, newspaper ad, postcard, letter, call to your billed telephone number, or e-mail to an address provided by you.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
Reasonable Business Use
All service plans that offer unlimited minutes of calls (“Unlimited Plans”) are for reasonable business use of Customer only. Reasonable Business Use does not include certain activities including, but not limited to, any of the following:
Autodialing, continuous or extensive call forwarding, use of virtual extensions for regular business use, continuous connectivity, fax broadcast, telemarketing (including without limitation charitable or political solicitation or polling), fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage.
Any other use resulting in improper usage patterns, including but not limited to dialing patterns wherein the Customer’s inbound or outbound minutes exceeds 95% of the aggregate usage and/or average minutes per line are in excess of 95% of all OTEL customers. For example, if you use 5000 minutes in one month per line and 98% of all OTEL customers used less than 5000 minutes that month per line, your use would constitute unreasonable use and would be in violation of this Reasonable Use Policy.
If OTEL determines, in its sole discretion, that Customer is not using the Plans for Reasonable Business Use and/or the Broadband is not being used according to the AUP(Average Usage Policy, available on OTELs’ website), OTEL reserves the right to immediately
(a) charge Customer’s Credit Card for the current per-minute rate for any usage determined to be outside of Reasonable Business Use and
(b) to terminate or modify the terms of Customer’s Service.
This Agreement, along with OTEL’s general Terms of Service and the rates found on OTEL’s website, constitutes the entire agreement concerning OTEL services between us and supersedes all prior agreements, understandings, statements or proposals concerning the OTEL service, including representations, whether written or oral. In the event of any conflict between this Agreement and OTEL’s general Terms of Service (including rates), the terms of this Agreement shall take precedence and control.
This Agreement can only be amended as provided herein. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor OTEL is relying on any representations or statements by the other party or any other person that are not included in this Agreement.
You represent that you may legally enter into this Agreement, have reviewed this Agreement and have read and clearly understand its terms. If you are acting on behalf of a corporation or other entity, you represent that you have full authority to bind that entity and if not you agree to accept personal liability for the account. You are responsible for all charges incurred by any person you authorize to access your account, or allow to use the Service.
Feel free to contact us at any time