Standard terms and conditions for Fibre-to-the-Home (FTTH) services

  1. INTERPRETATION
  1. Unless a contrary intention is clear from the context, the following words and phrases shall have the following meanings:
  1. " SMART " means SMART Technology Centre (Pty) Ltd, registration number 2011/011853/07, a company incorporated in terms of the laws of the Republic of South Africa.
  2. Website ” means www.smarttech.za.com .  
  3. Application ” means a request for initiation of a Service(s), Product (s), and / or provision of Good(s);
  4. Application Form ” and “ Quote ” means the document (including any electronic document) on which (inter alia) you selected your service or product of choice;
  5. Activation ” means the enabling of a service to the Customer’s premises;
  6. Activation Date ” means the date on which SMART will give you access to and/or enable you to use a product or service;
  7. Acceptance Date ” means the date on which you accepted the Agreement, be that in writing or by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone, or telephonic acceptance;
  8. Agreement ” means the current version of these Terms and Conditions, the Order signed by the Customer, and any other schedule or addenda to these documents, as amended from time to time;
  9. " User/s " means the Customer or any other person accessing any the Services provided by SMART.
  10. " Customer ", “ you ” or “ Subscriber ” means the person entering into the Agreement with SMART for the provision of FTTH Services and/or the use of equipment or any other product/s as such on any Application or Service Order executed between the Customer and SMART.
  11. FTTH ” means architecture of electronic communication to the Customer’s Premises where the final connection to the Customer’s Premises is optical fibre;
  12. Installation ” means the physical act of providing the FTTH service to the Customer Premises.
  13. Services ” generally means the internet services provided by SMART to the Customer.
  14. Goods ” means any and all goods to be provided by SMART to the Customer in terms of this Agreement, including without limitation equipment, hardware and third party software.
  15. Product ” means any combination of equipment and services provided by SMART to the Customer;
  16.  “ Customer Premises ” means the premises as specified on the Application form at which the Services are to be provided;
  17. Customer Premises Equipment ” or “CPE” means all devices supplied by SMART to the Customer to enable SMART to provide the services to the Customer, including the optical network terminal (ONT), hardware, cables, and connections;
  18. Service Order ” means a binding by the Customer, and includes the application form as completed by the Customer, the quote for specific service, good, hardware and/or work order, and its quantity. The Service Order (s) and Service Terms contained in this document together form the Agreement between SMART and the Customer, and the Customer has accepted in writing, electronically or telephonically to SMART.
  19. " Service Terms " means the terms on which SMART will provide a particular Goods or Service, as amended from time to time.
  20. Calendar Month ” means any of the twelve (12) months of the Gregorian calendar commencing on the first day of that month and ending on the last day of that specific month.
  21. Business Day ” means any day other than a Saturday, a Sunday or a or a day which is defined as a public holiday in terms of the Public Holidays Act, Act 36 of 1994.
  22. Business Hour " means a period of 60 minutes between the hours of 08h00 and 17h00 South African Time, on a Business Day.
  23. Charges or Fees ” means installation charges, monthly service charges, usage as well as all Other Amounts relating to the provision of the services by SMART to the Customer.
  24. Amounts due ” shall mean such an amount as may be due and payable to SMART on the 1st day of each month, with the maximum amount not exceeding the total outstanding balance due on the Customer’s account plus (or inclusive of, however the case may be) Other Amounts, this being the amount owing to the SMART now or in future.
  25. Other Amounts ” means other charges that may become due by the Customer including but not limited to equipment purchase charges, reactivation charges, administration charges, call out charges, professionals support charges, bank charges, cancellation penalties, interest, and/or collection charges, et. al.
  26. Network Provider ” means an entity authorised by the Authority to provide telecommunication services including, but not limited to, fixed line operators, mobile operators, wireless operators, or any other operator that provides access and network services (including value added services);
  27. Network ” or “ our network ” means any network, electronic communications network, system, server, hardware or technology infrastructure, or the like, including without limitation third party networks and/or Network Provider networks, owned or used by us or provided by us or our third party suppliers, for purposes of providing any SMART Network Service or product to Customers or providing access thereto;
  28. Network Services ” means any services provided by a Network Provider and which are made accessible to the Customer in terms of this agreement;
  29. Network Coverage ” means the geographical area within which the service can be accessed and used by you, as determined at the time coverage was established;
  30. Contracto r” means a contractor appointed by SMART to install, maintain, repair, connect, disconnect, or perform any similar tasks related to the provision of the CPE or the Services by SMART to the Customer;
  31. Good Industry Practice ” means the exercise of that degree of skill, diligence, prudence, and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under this Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
  32. Force Majeure  and Uncontrollable Event ” means (including without limitation) any event or circumstance which is not within the reasonable control of the affected party including, without limitation, to fire, flood, earthquake, explosion, natural disaster, elements of nature or acts of God, unusually severe weather conditions, war, national emergency, riots, civil disorders, rebellions or revolutions in any country, prohibitive legislation or regulations, inability to secure materials or services, failure of power on utility suppliers (including electronic equipment), including the termination or suspension of a service or product provided by a Network Provider and/or third party suppliers, that may result in a delay or a failure to provide any product or service and where the this event and could not have reasonably circumvented through the use of alternate sources, workaround, plans, or other means (including state-of-the-art disaster recovery or business continuity measures).
  33. Parties ” means the parties to this agreement, being SMART and the Customer, and “Party” means either one of them;
  34. The Authority ” means the Independent Communications Authority of South Africa established in terms of the Independent Communications Authority of South Africa Act 13 of 2000 and its successors who oversee the telecommunications and electronics industry in the Republic of South Africa;
  35. Republic ” means the Republic of South Africa;
  36. ICASA ” means the Independent Communications Authority of South Africa;
  37. Electronic Communications Act ” means the Electronic Communications Act, 2005;
  38. ECT  Act” means the Electronic Communications and Transactions Act, 2002;
  39. " CPA " means the Consumer Protection Act, 2008, as amended from time to time;
  40. RICA ” means the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2003.
  41. NCA ” means the National Credit Act, 34 of 2005;
  42. VAT ” means Value Added Tax as provided for in the Value Added Tax Act, 1991.
  43. Debit Order ” means any debit order including, but not limited to, any of the following: authenticated early debit order (AEDO), non-authenticated early debit order (NAEDO) or Debi Check;
  44. POPIA ” means the Protection of Personal Information Act 4 of 2013 and its regulations as amended from time to time;
  45. " Personal Information " is as defined in the Promotion of Access to Information Act 2 of 2000 ("PAIA").
  1. In this agreement, unless a contrary intention is clear from the context:
  1. The singular includes the plural and vice versa;
  2. A reference to any gender includes the other genders and a reference to a person includes any individual, body corporate or unincorporated or any other entity recognised in law as having a separate legal existence;
  3. When any number of days is prescribed, this shall be calculated by excluding the first and including the last day, unless the last day is not a Business Day in which case the days shall be calculated up to the next Business Day;
  4. Headings of Clauses have been inserted for convenience only and shall not be considered in the interpretation of the agreement;
  5. If there is any conflict between the provisions of this agreement and any schedule or annexure, the provisions of this agreement shall prevail;
  6. Words defined in this Clause shall have the same meaning in the schedules and any word defined in a Clause or schedule shall have that meaning in the Clause or schedule concerned and if used elsewhere in this Agreement.

  1. DISCLOSURE AS PER SECTION 43 OF THE ECT ACT
  1. Website owner: SMART Technology Centre (Pty) Ltd.
    Registered Number: 2011/011853/07
    VAT Number: 486023990
  2. Johannesburg Office: +27 87 310 1751
    Website: 
    http://www.smarttech.za.com    
  3. Physical Address:  1 Townsend Road, Townsend Office Park, Block 10, Bedfordview, South Africa
  4. Postal Address: PostNet Suite 125, Private Bag X782, Bedfordview, 2008
  5. The website owner is a member of The Internet Service Providers Association (ISPA) and subscribes to their respective Codes of Conduct, which can be obtained from www.ispa.org.za  

  1. NCA AND ECT ACT
  1. Although the Agreement is not a credit agreement as contemplated in the NCA, your application for a service or product may be subject to a credit referencing or risk assessment process. This means that SMART may utilize the information provided by you including your personal information and request and receive information about you and your credit record (“Assessment Information”) from registered credit bureaus to determine whether you will be in a position to meet your obligations under the intended Agreement. SMART will be entitled to decline to activate a product or service that you apply for if SMART reasonably determines that you may not be able to meet your commitments under the Agreement.
  2. SMART is entitled to perform these assessments each time you apply for a service or product.
  3. The consumer protection provisions of the ECT Act, apply to transactions and communications that are executed electronically by a natural person. It also does not apply to paper based transactions, e.g. where you apply for a service or product by completing an Application Form in writing.

  1. PROVISION OF SERVICES, USE OF SERVICE AND AUTHORISATION
  1. The Customer wishes to acquire Services and Product from SMART, which Services and Product SMART agrees to provide to the Customer subject to these Standard Terms and Conditions.
  2. In order to provide the Services:
  1. SMART may require information from other Network Providers. The Customer authorises SMART to approach any Network Provider or other party to obtain such information;
  2. SMART may need to enter into agreements or arrangements with third parties which may be necessary for SMART to deliver the Services. The Customer authorises SMART to enter into any such agreement or arrangement as may be necessary;
  3. The Customer undertakes to provide SMART with all information and documentation required under RICA prior to the Service being activated. The Customer acknowledges that SMART may not provision any Service to the Customer until such a time as the Customer has complied with this sub-Clause.
  1. The Customer who has voluntarily subscribed for service warrants and undertakes in favour of SMART, that the Customer:
  1. shall not use or permit the services to be used for improper, immoral, or unlawful purposes;
  2. shall not resell capacity arising from the Services;
  3. shall comply with relevant legislation, including any regulations by the Authority, and any directives or instructions from SMART, including SMART’s Acceptable Use Policy (AUP), available at:   https://www.smartonline.co.za/policy/acceptable-usage-policy/  and as noted in Clause 24 of this document, as well as the Privacy Policy, available at: https://www.smartonline.co.za/policy/privacy-policy/ , relating to the use of the equipment or Services;
  4. shall comply with each third party provider's Standard Terms and Conditions for the provision of Services where SMART makes use of a third party network to provision service to the Customer.

  1. TERM AND CANCELLATIONS
  1. The Agreement shall apply to each Service Order and any Services provided in terms thereof, calculated from the Activation Date.
  2. The Customer must give notice of termination electronically to billing@smarttech.za.com   and will only be accepted from the Customer in whose name the service is provisioned. No representations will be accepted.
  3. Moving is considered a cancellation and will be calculated in the same manner as outlined below.
  4. Cancellations received where the full term of the service has not yet been reached will be subject to early cancellation fees being charged to the Customer as set out below:
  1. The cancellation charge in respect of each Service is outlined per Network Provider below
  1. The cost:
  1. For Frogfoot as a Third Party Network Provider, the balance of the value of that would have become due and payable for the remainder of the contract term for that Service, unless the Month-to-Month option is selected;
  2. For OpenServe as a Third Party Network Provider, the balance of the value of that would have become due and payable for the remainder of the contract term for that Service, unless the Month-to-Month option is selected;
  3. For TT Connect as a Third Party Network Provider, the balance of the value of that would have become due and payable for the remainder of the contract term for that Service, unless the Month-to-Month option is selected;
  4. For SMART as the Primary Network Provider, the balance of the value of that would have become due and payable for the remainder of the contract term for that Service, unless the Month-to-Month option is selected; plus
  1. The cost of any free installation provided, charged at R1725; applicable to Month to Month contract option where the cancellation is requested within 6 months from activation.
  2. In addition:
  3. The cost of any free-to-use CPE devices supplied to the Customer at the Activation Date, being either:
  1. The TP-Link WR850N charge at R575; or
  2. The Zhone 2301 plus TP-Link WR850N Bundle Series charged at R2050; or
  3. The Zhone 2428 charged at a value R2050; or
  4. The BDCOM-GP1501-TP-LINK850 at the value of R900; or
  5. The BDCOM-GP1501at the value of R600.
  1. Once the CPE has been received by SMART and tested to confirm that the CPE unit/s are is in good working order and condition as issued, the cost of the CPE will be credited back to the Customer within 5 (five) working days.
  2. A collection fee of R249 where the customer requests SMART to collect the CPE.
  1. If the Agreement is not cancelled by you or us prior to or on the Expiry Date, it will automatically continue and constitute a month-to-month agreement terminable on at least 1 (one) calendar months’ notice which will take effect on the first day of the month immediately following the end of the applicable notice period. For example if notice is given on the 15 th of January, calendar month notice initiates on 1 st  February and termination will take effect on the 1 st  of March.
  2. The Customer is responsible for ensuring that such cancellation of service is actioned with due attention to terms of cancellation. Should the Customer incorrectly follow the cancellation process, SMART will not be liable for any additional costs or compensation to the Customer due to any errors.
  3. Cancellation of any other product or service is the Customer's responsibility and follows the same procedure and conditions as outlined above.
  4. Services cannot be paused at any stage of the contract term, and are treated as cancellations per above.

  1. DELIVERY, INSTALLATION AND SERVICE ACTIVATION DATE
  1. SMART cannot guarantee the provision of the requested Service upon the receipt of an Application or Sales Order.
  2. Potential customers should confirm the availability of fibre service in their specific location prior to purchasing any service from smart via the SMART website or directly from the SMART sales team. SMART makes no warranty as to the accuracy of these resources provided by our third party providers, and which is subject to change without notice.
  3. The Customer will be notified electronically after receipt of an Application whether the Service can be provided, however, the availability of Fibre Services is still subject to an SRS (Site Readiness Survey) to the Customers home to confirm access for the Fibre Service.
  4. Lead time for installation is noted as between 1 (one) to 4 (four) weeks from date of Service Order confirmation, which includes receipt of all necessary RICA documents as noted in Clause 4.2.4 above.
  5. Should the installation require an access build, an additional installation charge shall apply. SMART will provide a Customer specific quote for approval by the Customer at the current standard rates. Details available upon request.
  6. SMART will use its reasonable endeavours to comply with the installation date requested by the Customer. However, the Customer acknowledges that this will depend on the availability of equipment, service providers and contractors and SMART gives no undertaking that it will meet any installation date. SMART will not be liable in any manner to the Customer for any loss arising from failure in delay in the provision of the services or the CPE whether arising from an Event of Force Majeure or for any other reason whatsoever.
  7. SMART shall deliver the CPE required for the provision of the Services and as specified in the Sales Order, to the Customer Premises against payment of the Installation Fee and deposit, if any, as set out in the Sales Order.
  8. A delivery fee of R249 applies to all Third Party Networks for the CPE to be delivered to the Customer Premises.
  9. The Customer shall, at its own cost and expense, be responsible for:
  1. Ensuring that the communication services and facilities, including, without limitation, installation areas, electrical outlets, are suitable for the installation, passage and electrical connection of the equipment and Services when they are delivered for installation and thereafter. Where any device or equipment is required which is not provided by SMART, the Customer shall be responsible for installing it at its own cost, risk, and expense. Only devices and equipment which are approved by the Authority, and which have all the technical and operational characteristics and modifications which have been approved may be used in conjunction with the Services and the CPE; and
  2. Obtaining all the necessary permissions, approvals, and authorities necessary for the purposes of the supply and installation of the equipment and Services, including permission from the owner of the premises where the Customer is not the owner. The Customer hereby indemnifies SMART against any liability or costs which SMART may incur because of the Customer’s failure to obtain any approval or permission.
  1. No extended wireless coverage is included in the service term. Any additional equipment must be quoted and accepted by the customer prior to installation.
  2. After installation acceptance, any subsequent callout will be subject to a callout fee.
  3. SMART will, unless it declines to activate the service as contemplated in Clause 3., make the service available to you on the Activation Date.
  4. SMART will, in respect of each service activation issue the Customer with Work Complete Certificate (WCC) which will contain a username and password on the Activation Date in order to enable you to gain access to and/or use a service. You will not be able to access and/or use a service without a username and password.
  5. Unless the Customer advises SMART of any problems with the installation or the Services within two (2) business days from the time of Activation, the Customer shall be deemed to have accepted that the Services work as intended at 17h00 on the second Business Day where no rejection is noted per Clause 6.15 below.
  6. Where a customer rejects a WCC, the Customer must provide SMART with a detailed written statement setting out the reasons for such rejection and the remedial action required, issued in writing to   ftth@smarttech.za.com . SMART shall then take steps to remedy any deficiencies in the installation of the Fibre Service and resubmit a further WCC for acceptance.

  1. USE OF THE EQUIPMENT
  1. Unless purchased outright, the Customer acknowledges that the CPE issued is and remains the property of SMART and shall use the CPE only for the purpose for which it is intended and in accordance with any laws or regulations.
  2. Upon delivery to the Customer, or collection by the Customer, of the CPE, risk in respect of the CPE, but not ownership thereof, shall pass to the Customer who shall ensure that:
  1. the CPE is kept in the Customer’s possession and control, protected against any material loss or damage and free from any attachment, lien, hypothec, or other encumbrance;
  2. the CPE is used with due care and diligence, The Customer specifically acknowledges that the fly-lead is extremely fragile and may not be bent, tightly coiled or manhandled;
  3. Should the Customer move from the Customer’s premises, the CPE must be returned to SMART at the Customers own expense.
  1. Should the Customer not be the owner of the Premises the Customer shall notify the owner of such premises of SMART’s ownership of the equipment.
  2. SMART will provide the CPE with the original manufacturer’s warranty.
  3. In the event of theft of or loss or damage to the CPE, the Customer shall immediately inform SMART thereof in writing. The Customer shall be responsible for the cost of repairing or replacing the CPE, and should a repair not be feasible, the Customer is liable to settle cost of the new CPE upon presentation of invoice by SMART.
  4. If repairs or replacements have to be done on Terminal Equipment that is not covered under the manufacturer’s warranty or that has been damaged by anybody other than SMART, then in addition to Clause 7.5 above, SMART shall charge its full call out charges for the call-out to repair or replace the faulty Terminal Equipment.
  5. The Customer shall ensure that the CPE remain at the Premises. Only SMART is allowed to relocate the CPE. The Customer will be charged a relocation fee if relocation is requested by the Customer after having accepted the Service.
  6. SMART may, at any time during the Agreement, reconfigure, upgrade, or exchange any part of the CPE should SMART, in its sole discretion, deem it necessary to do so in order to meet its obligation to provide the Services. SMART shall not be obliged to make any upgrades unless it deems it necessary to do so.
  7. The Customer acknowledges that all items purchased from SMART will remain the property of the SMART and that ownership will only pass to the Customer upon full payment thereof.

  1. BILLING, CHARGES AND PAYMENT
  1. Unless otherwise agreed specifically agreed in the Sales Order, the Customer shall make payment monthly in advance, into the bank account nominated by SMART for this purpose, in full, and without deduction or set-off and free of bank charges, on date of invoice:
  1. For the supply and delivery of Service, irrespective of whether the service is used or not;
  2. The Customer understands and accepts the below provisions:
  1. Billing will commence on the Activation Date.
  2. Any additional subscription services that the customer signs up for will be payable in advance on presentation of the Customers next invoice.
  3. Any other Services invoiced in arrears are payable on presentation of invoice.
  4. All Fees and other amounts payable are quoted exclusive of VAT.
  5. Interest will be charged on any amount that remains unpaid by the Customer beyond the due date of payment:
  6. The interest rate will be 3% (three percent) above the interest rate.
  7. The prime interest rate will be as charged by SMARTSs bankers at the time, which will be evidenced by a certificate issued by any manager of that bank, whose authority it shall not be necessary to prove.
  8. The interest will be calculated from the due date of payment to the date of actual payment, both days inclusive, and will be compounded monthly in arrears. The Customer agrees and undertakes to pay the interest.
  1. SMART reserves the right to amend its prices or billing cycle at any reasonable notice, which will not be less than 30 (thirty) days’ notice to the customer.
  2. SMART only accepts Debit Order payments for services, and will only accept alternative payment under specific circumstances and only by prior arrangement at SMART’s discretion.
  3. SMART will not accept any liability or responsibility for delays, suspensions, or impact to Services due to use of non-approved payment methods by Customer.
  4. Total Amount Outstanding means the total outstanding balance on the Customer’s account, plus any Other Amount as previously defined herein.
  5. The Customer acknowledges that it remains their responsibility to ensure that all amounts outstanding are settled in full.
  6. Non-payment of any Fee or Charge within 2 (two) days of the due date, whether as a result of unpaid Debit Orders, or any other cause will result in immediate suspension of Services (which may not be limited to the particular Service in question), further to which SMART retains the right to:
  1. Withhold Services until all arrears amounts due are settled in full on any and all products and services.
  2. Levy an Admin fee for all failed or returned payments, regardless of method of payment or the reason for non-payment. Non-payment of Admin fee will be considered non-payment and will be subject to the same terms. Once levied, Admin Fees are not recoverable or reversible, regardless of whether payment is made within the prescribed period; and
  3. Charge a Reconnection Fee for subsequent reactivation of services. SMART may charge multiple reconnections Fees where multiple products are affected. Any prior leniency shown in this regard will not prejudice SMART's right to enforce such penalties in full at any time (within their discretion).
  1. Any and all penalty charges must be settled in full, prior to reconnection of affected services.
  2. Reconnection of Services may be subject to a waiting period of up to 48 (forty eight) hours, at SMART’s discretion, regardless of when payment is received or cleared.
  3. In the case of billing disputes, the onus is upon the Customer to raise such disputes in good time through the complaints procedure set out in Clause 12, to prevent interruption of services while the billing is in dispute. Reparations will be made to Customers with successful disputes by means of an account credit or refund, at SMART’s discretion.
  4. SMART reserves the right to terminate services where a Customer has shown a repeated disregard for payment terms and consistently fails to make regular scheduled payments on time and using approved payment methods.
  5. Notice of termination will be provided to the Customer where their account has fallen into arrears more than twice in any 3 (three) month cycle. In such instances:
  1. SMART reserves the right to cancel the service agreement in full, and to charge the customer an early cancellation fee as outlined in Clause 5.4.  
  2. SMART will not be held liable for claims or requests for further provision of services once a Customer’s services have been terminated due to non-payment.
  3. All other provisions as outlined in Clause 13.2 will prevail.
  1. A certificate signed by any director of SMART shall be prima facie proof of the amount owing by the Customer for the purposes of obtaining provisional sentence or summary judgment. The burden of proof should the Customer dispute the correctness of such signed certificate, shall rest with the Customer.

  1. DEBIT ORDER AUTHORISATION
  1. By completing the DEBIT ORDER AUTHORITY AND MANDATE FOR PAYMENT as per the Application Form and Online sales process, the Customer hereby instructs and authorises SMART to draw against the Customers listed bank account the monthly amount due to SMART, this being the amount necessary for payment of the monthly amount due in respect of Fibre service, plus any OTHER AMOUNTS should this be the case.
  2. The Customer’s monthly debit orders of the Amount Due will be submitted monthly in advance on or about the first Business Day of the month, commencing on the date of first collection following the initial service activation and continuing until termination of the agreement.
  1. All such withdrawals from the Customers bank account by SMART shall be treated as though they had been signed and authorised by the Customer in their personal capacity.
  2. The Customer understands that the withdrawals so authorised will be processed through a computerized system provided by the South African Banks and the Customer understands that that the details of each withdrawal will be reflect on their bank statement.
  3. The Customer agrees to pay any bank charges relating to this collection instruction.
  4. All outstanding balances will be taken off the Customer’s monthly debit order and all final balances due will be taken off the Customers final debit order upon service cancellation.
  5. To cancel or amend the DEBIT ORDER AUTHORITY AND MANDATE FOR PAYMENT , the Customer must notify billing@smarttech.za.com  before the 20 th  (twentieth) of each billing month.

  1. SERVICE UPGRADES AND DOWNGRADES
  1. Fibre Service speeds may be upgraded or downgraded at any time by logging a request to SMART via sales@smarttech.za.com  or by logging into the SMART Portal.
  2. An upgrade / downgrade fee is charged per change instance, and will be added as an OTHER AMOUNT to the Customers next invoice.
  3. The SMART billing system will calculate a pro- rata split billing where upgrades / downgrades were processed in the applicable month.
  4. May result in the Terminal Equipment rebooting, which will result in downtime.
  5. May require the CPE to be changed, which may result in additional charges being levied to the Customer.

  1. SERVICE AVAILABILITY, FAULTS AND RESOLUTIONS
  1. SMART will be entitled to assume that the Service provisioned to a Customer is in good working order until such time as the Customer notifies SMART of any problems or potential service breaks.
  2. Any faults or service interruption should be reported electronically via one of the channels below, and as listed on WCC and CPE):  

Email:                                     ftth@smarttech.za.com  

Telephonically:                     087 310 1751 (Business hours only)

WhatsApp:                            081 337 1756 (Business hours only)

SMART Portal:                         https://stc.soliditech.com/stc/my account/selfadmin/login.jsp

Business Hours                       08H00 – 17H00

Weekday After Hours           17H00 – 20H00

  1. The customer accepts that smart does not guarantee speeds over a wireless connection. Wireless connections are susceptible to external interference and each customer’s home setup is different.
  2. Smart will only accept speed tests from http://speedtest.net  that have been done with a network cable plugged into the CPE and not over a wireless connection.
  3. The responsibility of smart ends at the wan port of the CPE and smart is not obliged to investigate issues beyond the termination node of the CPE.
  4. Customer call out requests are subject to a call-out fee. This fee may be waived at the sole discretion of smart where the fault is not with the customer.
  5. Smart will use reasonable endeavors to make its services available to its customers, and to maintain the availability thereof for use by its customers. However, we provide the services “as is” and “as available” and we do not make any express or implied representations or warrant or guarantee the quality or security of the services or that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.
  6. SMART will use its best endeavours to notify you in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.
  7. SMART will attend to faults reported by the Customer during standard business hours and engage any third party providers where in use, and will further apply its reasonable endeavors to have the service restored in the shortest possible time.

  1. SERVICE DISPUTES, COMPLAINTS AND DISPUTE RESOLUTION
  1. Complaints and service disputes must be submitted to SMART electronically and will be dealt with by SMART in accordance with the provisions of this Clause 12.
  2. Without prejudice to your rights in law, you are required, to first approach us with any complaint or dispute and afford us an opportunity to resolve a compliant before you approach ICASA or any other relevant authority, court or other dispute resolution body or refer the matter to arbitration as contemplated in Clause 12.7 below.
  3. Please direct all complaints and disputes to billing@smarttech.za.com  with the following information included:

  1. your name and surname;
  2. your account number;
  3. the date on which the complaint or dispute arose; and
  4. A brief description of what gave rise to the complaint or dispute.

  1. In the event of a billing complaint you should also include the following:
  1. a copy of the bill concerned or the particulars thereof, e.g. account number;
  2. the reason for the dispute;
  3. the amount in dispute; and
  4. Supporting information or documentation, if any.

  1. SMART will acknowledge receipt of your complaint or dispute within 3 (three) working days of receipt thereof.
  2. SMART will formally respond with a view to proposing a resolution of your complaint or dispute in writing within 14 (fourteen) working days of receipt thereof, or within such longer period as we reasonably require under circumstances where the resolution of the complaint or dispute is for example (but without limitation) in the hands of a supplier or third party service provider.
  3. You may approach ICASA or any other relevant authority, court or dispute resolution body or refer the matter to arbitration as set out in Clause 12.7 below, for resolution of the dispute, should you not be satisfied with the proposed resolution of the dispute by SMART.
  4. Any dispute between the parties may be referred to arbitration and finally resolved in accordance with the rules of the arbitration Foundation of Southern Africa. Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.
  5. The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.
  6. The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.
  7. The customer accepts that no offsetting on balances outstanding will be permitted by SMART in the event of a dispute being lodged.

  1. SUSPENSION OR TERMINATION OF SERVICE
  1. SMART may, upon electronic notice to the Customer, suspend or terminate service a Customers full use of Services, if in its absolute discretion the Customer fails to perform any obligation under or breaches any term of this Agreement if:
  1. The Customer commits a serious or repeated breach of the Agreement, or the Customer engages in any conduct which in SMART’s opinion would have a negative impact on SMART, other Customers or SMART’s staff or is detrimental to the welfare, good order, or character of SMART; or
  2. Any part of the Customer’s Charges is not paid in full when due; or
  3. The information the Customer supplied to SMART is found to be incorrect or false;
  4. SMART reasonably thinks that the Customer’s use of the Services may result in the commission of a crime or is otherwise unlawful.
  1. SMART reserves the right to effect such suspension or termination without notice, depending on the severity of the breach, but will undertake to inform Customers where possible. Upon such suspension or termination, such Customers:
  1. Will not be eligible for reimbursement / compensation, unless at SMART’s discretion
  2. May be further barred from signing up for any services with SMART in the future
  3. May be reported to governing bodies, such as ISPA, for listing purposes
  4. May be listed with applicable authorities and credit bureaus.
  5. The period of suspension will be that which is reasonable under the particular circumstances that gave rise to the suspension.
  1. Billing of all fees and charges will continue to accrue during suspension in accordance with Clause 8.
  2. Should the Customer’s failure to meet obligations in terms of this Agreement continue for longer than 10 (ten) business days, SMART reserves the right to terminate this Agreement without any further notice.

  1. CANCELLATION AS A RESULT OF IMPOSSIBILITY OF PERFORMANCE
  1. If any party is restricted or prevented from carrying out any or all of its obligations as a result of an Event of Force Majeure, unpredictable delays caused by traffic congestion, diversion or road works, or any other event or circumstance giving rise to impossibility or performance delay by either party, then that party will be relieved of its affected obligations during the period that such event continues and will not be liable for any costs or damages arising from such delay or the failure in performance of any obligations as a result of such event.
  2. If the event in Clause 14.1 continues for a period more than 21 (twenty-one) business days, either party may cancel this Agreement with immediate effect by written notice to the other party.

  1. OBLIGATIONS ON TERMINATION
  1. The Customer remains responsible for all amounts due in terms of the Agreement up until the date of termination, together with any costs or expenses relating to the termination of the Agreement and the cancellation of the Services, including, but not limited to the replacement cost of any CPE which SMART is unable to recover for any reason.
  2. SMART is entitled to immediately deactivate the Services on date of termination or cancellation and shall have no further obligation to the Customer after such termination or cancellation of this Agreement.
  3. SMART’s obligation shall be limited to removal of the CPE only where requested by the Customer, and at the Customers cost.
  4. The Customer shall grant access to SMART, or shall ensure that such access is granted, to enable SMART to remove the CPE or any other equipment related thereto from the Premises.

  1. IDENTITY VERIFICATION REQUIREMENTS (RICA)
  1. Use of the Services is subject to ID verification and / or proof of address, required by RICA (the Regulation of Interception of Communication Act of 2009). Customers are required to email, or upload the relevant documents;
  1. A full coloured, clear, legible copy of their valid Identity Document or Driver's License.
  2. Non-South African citizens may submit a copy of their valid Passport or International Driver's License.
  1. Verification documents must contain photo identification.
  2. Failure to produce ID verification for an account will result in the product not being activated, regardless of any pro-rata amounts billed.
  3. Should the Customer cancel all current valid SMART Services, ID verification will be required to sign up for new Services. ID verification will not be requested as long as verified SMART Services remain active.

  1. GAURANTEES, EXCLUSION, DISCLAIMER AND LIMITATION OF LIABILITY
  1. It is specifically agreed that SMART shall not be liable for any damages or losses incurred by the Customer because of:
  1. the Services being interrupted, suspended, or terminated for whatsoever reason;
  2. or communications to or from the Customer not being sent and/or received at all or on time for any reason whatsoever;
  3. The Customer using the Services for illegal, immoral, or improper purposes.
  1. SMART will not be liable to the customer or any third party in respect of any and all damages, loss, claims or costs, of whatever nature and including but not limited to direct, indirect, consequential, or special damages, suffered by the Customer or third party, howsoever arising, and SMART will moreover not be liable whether the loss was the result of the act or omission of a SMART employee, vicarious or strict liability.
  2. In the event that SMART is nonetheless held liable, the quantum of SMART’s liability will not exceed the monthly or pro-rata charges due for the service that occasioned the loss, in the preceding 1 (one) month, regardless of whether the claim arises out of negligence on the part of SMART or any other cause.
  3. Use of the services indicates that the customer indemnifies and holds harmless SMART in respect of any damages, loss or costs or claims instituted against SMART arising from any application or subscription to or use of any service or breach of the terms and conditions applicable to it.
  4. These limitations on liability and indemnities apply to the benefit of SMART and SMART's Affiliates, directors, officers, employees, contractors, agents, and other representatives, as well as any third parties whose networks are connected to the SMART System.
  5. Nothing contained in this Clause 17 will limit the Customer’s liability in respect of charges incurred for ongoing Services.
  6. If the Consumer Protection Act 68 of 2008 is applicable to this Agreement, and any provision of this Clause 17 is found by a court or tribunal with jurisdiction over SMART to be unfair, unreasonable, or unjust, then that provision (whether it be a word, phrase, or sub-Clause) will be severed, and the remainder of this Clause 17 will have full force and effect.
  7. In the case of ambiguity, this Clause 17 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.
  8. Uncapped Fibre Service is not throttled or shaped. However, there may be circumstances beyond the control of SMART that may vary performance, based on demand, service breakdowns or technical outages. During this time, services may be affected and not perform optimally. SMART will endeavor to improve and optimise services as much as possible during such periods and the Customer agrees that this will not constitute shaping or throttling.

  1. INTERACTIONS WITH STAFF AND SMART BRAND
  1. Customers will be held accountable for their conduct towards SMART staff and in the public domain with regard to allegations or malicious conduct directed towards SMART or its staff.
  2. Abusive behavior, including (but not limited to) aggression, bullying, offensive language or conduct, including threats, humiliation, or any type of intimidation on a forum or directed at SMART or its staff will be deemed abusive and will not be tolerated. SMART reserves the right not to respond to any email or related data message which contains obscene, threatening, defamatory or otherwise illegal, unlawful, or inappropriate content. Such conduct may constitute an AUP violation and SMART reserves the right to suspend or terminate Services to a Customer in such cases.
  3. Customers using public platforms to spread libel, false allegations, unreasonably or maliciously diminish the reputation or public perception of the SMART brand (or its staff) may have their Services suspended or terminated, depending on the severity and circumstances of the incident(s), and may also be regarded as contrary to the AUP.
  4. Data messages such as email, short text message and WhatsApp sent directly to SMART resources shall not be regarded as having been delivered, and the Customer will have no expectation of a response unless the specified support platforms are utilized.

  1. PRIVACY NOTICE AND INFORMED CONSENT
  1. Customers signing up for services as a Primary Contact are considered as “the Customer” and no other parties will be permitted access or authority to the Customer Account, even if they are a 3rd party recipient or affiliate of the “Customer”.
  2. SMART will observe all privacy of information best practices, in accordance with the applicable laws of South Africa, including the Protection of Personal Information Act (POPI) of 2013.
  3. The Customer consents to SMART processing Personal Information transmitted to the SMART System in a way which is consistent with the Service being provided. Where the Customer's use of a Service leads to the transmission of Personal Information to or from the Republic of South Africa, the Customer acknowledges that it has a duty to comply with any relevant statutory provisions dealing with data privacy either in the Republic of South Africa or in any foreign country to which the Personal Information is transmitted. The Customer warrants that it has obtained the consent of any third party for the use of that party’s Personal Information in this way, or otherwise that such processing is lawful, and indemnifies SMART from any claim brought by such third party as a result of its failure to do so.
  4. Monitoring of Usage:   SMART monitors its systems for performance and accounting purposes. The information gained thereby and by any other means may be used to ensure compliance with the terms of service and our Acceptable Use Policy. You consent to SMART monitoring your traffic data for accounting purposes and to ensure the SMART system is operating properly.
  5. You agree that SMART may from time to time send you communications regarding (without being limited to) special offers or discounts which SMART has on offer to its Customers and/or new services or products launched, and data notifications in the form of email, short text message and WhatsApp to notify to service outages or service updates. All communications will abide by our Privacy Policy and applicable law as published on our website: https://www.smartonline.co.za/policy/privacy-policy/  
  6. You will always be entitled to notify us in writing that you do not wish to receive or continue to receive such communications and if you are a consumer as contemplated in the CPA, to pre-emptively block the receipt of such communications.
  7. For service updates and outages, the Customer can opt out by notifying SMART electronically at ftt@smarttech.za.com  and the customer understands and accepts that there will be no further obligation or liability on the part of SMART due to non-receipt of these data messages.
  8. SMART will make every effort to deliver notifications as quickly and accurately as possible. However, SMART will not be held liable for delivery delays or failures that may occur due to external forces outside of their control, such as mobile network availability or third party email providers. Where SMART has made a reasonable effort to effect delivery, they will be deemed to have fulfilled their obligation to update the Customer.
  9. The onus is on the Customer to notify SMART of any changes to Customer contact details electronically to billing@smarttech.za.com  

  1. SECURITY
  1. SMART will implement measures in line with Good Industry Practice to ensure the security of the SMART System and the physical security of SMART’s premises, but gives no warranty that breaches of security will not take place.
  2. SMART will be entitled to take whatever action SMART may deem necessary and reasonable to preserve the security and reliability of its network.
  3. You may not utilize any service in any manner which may compromise the security of SMART's network, or any other network connected to SMART’s network, or tamper with a service or such a network in any manner whatsoever.
  4. SMART takes reasonable steps to secure your payment information. SMART uses a payment system that is in SMART's reasonable opinion, sufficiently secure with reference to accepted technological standards at the time of the electronic transaction and the type of the transaction concerned.

  1. IP PROVISIONING
  1. IP Provisioning is service item and attaches a cost which will be quoted on first for approval by the Customer.
  2. SMART may provision IP addresses for use with your Internet Services.
  3. You acknowledge and agree that you will not receive any proprietary or ownership rights in such designation, and that SMART may change your IP addresses at any time.
  4. Whether IPv6, public or private IPv4, any IP addresses provisioned by SMART for use with your Internet Services is done at SMARTS’s sole discretion.

  1. ACCEPTABLE USE POLICY (AUP)
  1. An AUP is a policy which sets out the rules applicable to the use of SMART services. Most of these relate to legal requirements, but we also need to ensure that our SMART network and customers are kept safe and secure.
  2. You agree that you will only use SMART services in a manner consistent with this AUP as published on our website https://www.smartonline.co.za/policy/acceptable-usage-policy/  and that your failure to do may be grounds for us to suspend or discontinue service provision.
  3. Unacceptable use:
  1. Any criminal, illegal or unlawful act.
  2. Any use which intentionally interferes with SMART’ ability to provide services in any respect.
  3. Any use which intentionally interferes with the rights of SMART or any other third party.
  4. Any use which is a breach of any other agreement SMART may have entered with you or any policy or other terms and conditions which you have agreed to in connection with the use of SMART services.
  5. The use of SMART’ service to send unsolicited direct marketing communications in contravention of applicable law or which would cause us to be in contravention of the ISPA Code of Conduct.
  1. Please report any use of our services in contravention of this AUP to abuse@smarttech.za.com  
  2. If it is necessary to amend this Privacy Policy, we will post a prominent notice or send you an email to ensure that you are kept informed about changes and how they may affect you.

  1. PROTECTION OF MINORS AND VULNERABLE PERSONS

SMART aims to protect minors and vulnerable persons and recommends the following links for further reading on these topics:   https://ispa.org.za/safety/

  1. AMENDMENTS
  1. Due to legal and other developments, SMART expressly reserves the right amend or alter any of the Terms and Conditions of Use from time to time, which includes changes to pricing and rates.
  2. The Last Mile Provider’s Standard Terms and Conditions for the provision of Services also apply to this Service, and may change from time to time. The Customer is obliged to check for changes to such terms.
  3. SMART will attempt to give notice of any amendments, but reserve the right to effect binding amendments, additions, or deletions without notice.
  4. The Customer acknowledge that it is their responsibility to familiarise themselves with any amendment or alteration affected which will be published at https://www.smartonline.co.za/legal    

  1. CESSION, ASSIGNMENT AND SUB-CONTRACTING
  1. The Customer may not cede, sub-license, assign or otherwise transfer any of its rights or obligations under this Agreement, nor transfer the CPE or any part thereof to any third party or permit any third party to use the CPE or any part thereof without SMART’s prior written consent.
  2. SMART shall be entitled to cede and/or assign any of its rights or obligation under the Agreement or to appoint Contractors to carry out any of its obligations under the Agreement.
  3. In the event of any part of these Terms and Conditions of Use being found to be partially or fully unenforceable, for whatever reason, this shall not affect the application or enforceability of the remainder of this Agreement.
  4. These Terms and Conditions of Use contain the record of the entire agreement between the Customer and SMART as regards the use of the SMART fibre.
  5. Failure to enforce any provision of these Terms and Conditions of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision.

        

  1. DOMICILIA AND NOTICES
  1. The Parties select as their respective domicilia citandi et executandi, and for the purposes of giving or sending any notice or communication provided for or required in terms of this Agreement, the addresses (including email addresses) as set out below:

For SMART

Physical Address:  1 Townsend Road

                                Townsend Office Park, Block 10

                                Bedfordview, Johannesburg,

  2008

E-mail:                     legal@smarttech.za.com  

The Customer:      As per the Application form and supporting Sales Order

  1. The physical or residential address and the e-mail address specified in the Application Form and Sales Order. The Customer must notify SMART in writing of any change in any one or all these details within 7 days of any such change taking effect.
  2. SMART may change its domicilium address by written notice to the Customer, provided that any such change shall only become effective on the 7th (seventh) day after the giving of such notice.
  3. Any notice required or permitted to be given in terms of this Agreement shall be given in writing and shall be delivered by hand to the physical domicilium address of the other party or sent via e-mail to the chosen e-mail address.
  4. Notwithstanding anything to the contrary in this Clause, a written notice or communication received by any Party, shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.

  1. DISCLOSURE
  1. The Customer warrants and represents that all information provided in the Application Form and Sales Order or elsewhere relating to this Agreement, is true, correct, and complete and the Customer indemnifies SMART against any claim that may arise as a result of a breach of this warranty.
  2. The Customer authorises SMART to make general credit reference enquiries about the Customer and to disclose any information, which has been supplied, or any information relating to the Customer’s account to any registered credit bureau.
  3. SMART shall further be entitled to disclose any information of the Customer to enable the provision of emergency services, directory, or repair services to the Customer and for any purpose for which such information is required in law.
  4. SMART undertakes not to disclose any of the Customer’s information for any purpose, except as provided for in this Clause or as agreed to elsewhere in this Agreement or in writing by the Customer.

  1. GENERAL
  1. This Agreement constitutes the whole agreement between the parties relating to the subject matter hereof and no party shall be bound to any express or implied term nor to any representation or warranty nor to any extension, relaxation, or waiver of any provision hereof, unless reduced to writing and agreed to by the parties. Any such extension, relaxation or waiver will be strictly interpreted as applying only to the matter in respect of which it is made or given.
  2. The Customer acknowledges that SMART seeks, on an on-going basis, to improve the services that it offers to its Customers. This, together with other changes which may be required as a result of legislation or regulation or arising from the environment in which SMART operates, may require SMART to amend the terms and conditions of this Agreement from time to time. Subject always to the Customer’s rights to terminate this Agreement, SMART shall have the sole discretion to amend this Agreement and to modify or discontinue any function or component of the Services. Any use by the Customer of such Services after such amendment has been implemented and notified to the Customer in writing, shall be deemed to be an acceptance by the Customer of such amendment.
  3. If any part of this Agreement is found to be invalid, the balance of the provisions shall remain enforceable. The rule that, in the case of any ambiguity in an agreement, the agreement shall be interpreted against the party responsible for the preparation thereof, shall not apply to this Agreement.
  4. This Agreement shall be subject to and shall be governed by the laws of the Republic of South Africa.
  5. The Customer agrees, in accordance with the provisions of the Magistrates Court Act of 1944, as amended from time to time, to the jurisdiction of the Magistrates Court having jurisdiction over its person in connection with any action or proceeding instituted against the Customer in terms of or arising out of this Agreement, provided that either party may institute any action or proceedings in any division of the High Court of South Africa which has the necessary jurisdiction. In the case of either party (“the aggrieved party”) taking legal action against the other party (“the defaulting party”) for the recovery of any amounts due or any other legal action in terms of this Agreement, the aggrieved party will be entitled to recover legal costs including tracing fees from the defaulting party on the scale as between an attorney and its own client.
  6. Dispute resolution and escalation:
  1. The Customer shall be entitled to refer any dispute between itself and SMART regarding the installation and/or accessibility of Services to the Authority or to refer any matter to any other regulatory body having jurisdiction in respect thereof.
  2. However, the Customer shall first exhaust SMART’s internal escalation route for dispute resolution and fault reporting before escalating any such matter to the Authority or other regulatory body having jurisdiction.
  3. The Customer shall refrain from attacking SMART or its sub-contractors on any Social Media Platforms for delays in installation and/or Service interruption repairs, without first following the escalation routes and remedies stated above. Failure to comply with this Clause shall entitle SMART to cancel the Agreement without any further notice to the Customer. SMART furthermore reserves the right to take legal action for slander/defamation against the Customer for any untrue statements made on Social Media in addition to cancelling the Agreement as aforementioned.

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