These Terms and Conditions, together with any Agreements, Schedules and/or Annexures, constitute the entire agreement (“The Agreement”) between you (“the Customer”) and Reflex Solutions (Pty) Ltd (“Reflex”), Reg. Number: 2007/029828/07, Vat number: 4370194294.
- “Agreement” means these Terms and Conditions and the Master Services Agreement as well as any applications and their schedules and annexures entered into between the Parties;
- “Best Effort” means everything known to be usual, necessary and proper for ensuring the expeditious, success of the endeavour while prioritising the interest of the person to whom the obligation is owed. It requires pursuing all courses of action which have the greatest chance of achieving the required obligations, excluding placing the party in a commercially detrimental position, it does require that everything that can be done should be hone however;
- “Customer” means the Party that registered for a service to be provided by Reflex;
- “Effective Date” means, notwithstanding any Signature Date of a Master Services Agreement or Service Schedule, the date upon which the Services come into effect or as stated in the Service Schedule;
- “Master Services Agreement” means the agreement entered into between the Parties which governs the general commercial relationship of the Parties;
- “Parties” means Reflex and the Customer;
- “Reflex” means Reflex Solutions (Pty) Ltd a company registered in terms of the Companies Act with registration number 2007/029828/07, and VAT number: 4370194294;
- “Service Schedule” means the schedule, which accompanies the Master Services Agreement and refers to and provides details of the specific service provided by Reflex Solutions to the Customer;
- “Services” means all services provided by Reflex to the Customer in terms of the Service Schedule;
- if any provision in a definition is a substantive provision conferring rights and imposing obligations on any Party notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement;
- any reference in this Agreement to an enactment is to that enactment as at the signature date and as amended or re-enacted from time to time;
- a reference to a Party includes a Party’s successors-in-title and permitted assigns;
- the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
- this Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include any such Party’s estates, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be;
- unless inconsistent with the context, an expression which denotes -
- any one gender includes the other gender;
- a natural person includes a juristic and/or artificial person and vice versa;
- the singular includes the plural and vice versa;
- “Days” shall refer to calendar days, not Business Days;
- Notwithstanding clause 1.33.4 when any number of days is prescribed in this Agreement, unless stated otherwise, same shall be reckoned exclusively of the first and inclusively of the last unless the last day falls on a day which is not a Business Day in which case the last day shall then be the next succeeding Business Day;
- the headings in this Agreement are for reference purposes only and shall not affect interpretation;
- the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example(s).
This Agreement shall commence on Effective Date, and shall, unless otherwise provided for, remain in force unless and until terminated in accordance with the provisions of the Master Services Agreement. The term of each Service shall be in terms of the Service Schedule.
It is recorded herein that the Services provided by Reflex for access to the Internet shall be subject to the terms and conditions as set out in this Agreement and furthermore subject to Telkom's Standard Conditions for Public Switched Telecommunication Services, as amended from time to time, which is incorporated herein. The Customer shall obtain a copy of such terms and conditions, which is available upon request.
- Incorporation by Reference
- Rights and Obligations of Reflex
- Reflex will do all things reasonably necessary to provide and maintain a Best Effort continuous Internet access Service and use to the Customer, but cannot guarantee a continuous uninterrupted Service or any throughput of data, which exclusions include without limitation; network availability, line sync speeds limitations, operational maintenance and repairs, upgrades and circumstances beyond its control including force majeure. No Service level agreement is associated with the Service/s provided by Reflex.
- Reflex Solutions reserves the right to remove any content hosted by them which it considers illegal or for which it has received a take-down notice from the relevant authority. Furthermore, Reflex Solutions reserves the right to suspend or terminate the service of any customer that does not comply with the terms and conditions, Acceptable Use Policy or any other contractual obligations.
- Any individual who feels that another person has incriminated him/her, may report the activity to the nearest Police station. Reflex reserves the right to monitor user and network traffic for site security purposes and reserves the right in its sole discretion to remove information or data that is deemed to be offensive, indecent, or otherwise objectionable.
- Reflex will only be obliged to disclose information under its control to the extent that the Promotion of Access to Information Act 2, 2000 should it be required to do so by operation of law.
- Rights and Obligations of the Customer
The rights and obligations of the Customer shall be in terms of the Master Services Agreement.
- Reflex shall be entitled to commence invoicing the Customer for each Service rendered upon the Service Schedule upon the parties having signed and approved the Services Schedule, under a valid Master Services Agreement;
- Payment shall be in terms of the Master Services Agreement;
- Invoices shall be delivered to the Customer’s designated email address indicated on the Master Services Agreement or the Service Schedule unless otherwise directed by the customer in writing
- Ownership and Risk
- All rights of ownership to any hardware or software:
- Provided by Reflex on loan or rental basis shall remain vested with Reflex;
- Acquired by the Customer from Reflex either free of charge or at an agreed upon price shall remain vested in Reflex until the Customer has made payment therefor in full to Reflex;
- All risk to hardware and software shall pass to the Customer on delivery thereof at the premises of the Customer.
- In the event of damage to or the loss, theft or destruction of the hardware or software or any portion thereof, the Customer shall be obliged to replace and/or repair order to pay to reflex the cost of replacing and/or paying the hardware or software so damaged, lost, stolen or destroyed.
- The Customer undertakes
- to exercise to the hardware and software the same degree of care as if the hardware and software belonged to it and shall use its best efforts to avoid loss, theft or destruction of all damage to the hardware or software;
- Not to alienate, encumber or otherwise dispose of the hardware or software;
- Not to conduct repair or maintenance of the hardware or software without the prior written consent of Reflex.
- All rights of ownership to any hardware or software:
- Limitation of Liability
Reflex shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where Reflex’s failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
- the Customer's failure to perform, or delay in performing its obligations in terms of this Agreement;
- circumstances that constitute an event of force majeure as contemplated in this Agreement;
- all telecommunications infrastructure and communication line faults;
- failure or unreasonable delay by the Customer to report faults/problems to Reflex; or
- the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which Reflex relies to provide the Service/s.
- Reflex shall not be responsible for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising if such loss is caused by any defect or failure in the hardware or software due to:
- compliance by Reflex with any applicable legislation; and/or
- any alteration to the software and equipment by the Customer; and/or
- any defect and/or hazard in any third-party equipment required by the Customer to be used in the provision of the Service.
- In addition to 8.1 and 8.2 above, and to the extent permitted by South African Law, Reflex shall not be responsible for indirect or consequential damages or loss (including but not limited to loss of data, profits and goodwill) of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
- The Customer shall indemnify and hold Reflex and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 8.2 above.
- Subject to clause 8.1- 8.3 above, the entire liability of Reflex and Customer's exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 4 (four) months preceding Customer's written notice to Reflex in respect of such claim.
- Customer hereby indemnifies Reflex against and holds Reflex harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of Reflex is excluded in terms of clause 8.1 - 8.3 above.
- Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of Reflex of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
- Notwithstanding anything to the contrary contained in this Agreement, Reflex reserves the right in its absolute discretion and after the receipt by Reflex of any take-down notice in terms of the Electronic Communications and Transactions Act 25, 2002 or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of Reflex’ intention to remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, Reflex shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by Reflex shall in no way constitute a breach by Reflex of this Agreement.
- Reflex shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where Reflex’s failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
The Customer indemnifies Reflex against any liability arising out of the Customer's negligence in respect of the content on the Website or Website design.
- Domicilium Citandi et Executandi
The Parties elect the following addresses as their respective domicilium citandi et executandi:
- Reflex Solutions (Pty Ltd
Physical Address: 17 Kent Road, Dunkeld West, Johannesburg 2196
- Reflex Solutions (Pty Ltd
- Any notice given as set out above will be deemed to have been duly given through Hand Delivery, Courier or email –
- if delivered by hand at the Parties’ domicilium referred to in clause 12.1, on the date of delivery; or
- if sent by Courier, on date of Delivery and written acknowledgement of Delivery by the receiving party; or
- if sent by email, on the on the day that the email is transmitted, except that any email transmitted after 16h00 will be deemed to have been received on the following Business Day.
- Either of the Parties may change their domicilium citandi et executandi to another address within the same country, by way of a notice to the other party to this Agreement, provided that such notice is received by the addressee, at least seven (7) calendar days prior to such change taking effect.
- The Parties elect the following addresses as their respective domicilium citandi et executandi:
- Consent to Jurisdiction
The parties irrevocably consent to the jurisdiction of the Magistrate’s Courts for matters arising from or in connection with the Agreement, provided that Reflex may institute proceedings claiming relief, whether interim, permanent, urgent or not, from any Court in South Africa with jurisdiction to hear and determine the matter.
This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
Any variation of or addition to this Agreement will be not be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
- Take Down Notifications
Reflex solutions nominate ReflexPA as its agent for the purpose of receiving take-down notifications in terms of section 75 of the Electronic Communications and Transactions Act.
Internet Service Providers' Association (ReflexPA)
ReflexPA link: https://ispa.org.za/
Address: PO Box 518, Noordwyk, 1687
Telephone: 010 500 1200
- Electronic Communications and Transactions Act
- Cession Assignment and Delegation
The Customer shall not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of Reflex.
No indulgence, waiver, leniency or extension of a right, which the Customer may have in terms of this Agreement, shall in any way prejudice Reflex, or preclude Reflex from exercising any of the rights that it has derived from this Agreement, and shall not be construed as a waiver of that right.
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable. Reflex reserves the right to amend these standard conditions from time to time.
Reflex contact details are as follows:
Postal address: PO Box 714, Parklands, 2121
Telephone: +27 (0)860 650 650
Telephone: +27 (0)11 912 9300
Fax: +27 (0)11 912 9400