Turrito Standard Terms and Conditions for Services
All Services provided to the Customer pursuant to these Terms and Conditions, are provided by Turrito Networks Proprietary Limited, a private limited liability company incorporated in the RSA with registration number 2010/003017/07 and with its registered address at 19 Kent Road, Dunkeld West, 2196 and the following general notices email [info@turrito.com] (“Service Provider”).
2. Nature of the Terms and Conditions
2.1. By accepting the quote provided to the Customer in the Application Document by the Service Provider, the Customer agrees to these Terms and Conditions and the Privacy Notice available at https://www.turrito.com/turrito-privacy-notice, which govern all Services that the Service Provider provides to the Customer. These Terms and Conditions create a legally binding agreement between the Service Provider and the Customer and shall, from the Effective Date, supersede any correspondence, understandings, undertakings and all other agreements concluded between the Parties in relation to the Services and the Customer acknowledges that, other than the Application Document, there are no agreements or arrangements whether written, oral or implied between the Parties relating to the Services.
2.2. No amendments made to the Application Document by the Customer shall be binding on the Service Provider unless and until accepted by the Service Provider in writing.
3. Appointment and Duration
3.1. The Customer appoints the Service Provider to render the Services in accordance with these Terms and Conditions, which appointment the Service Provider accepts.
3.2. The Services shall commence on the Effective Date and shall continue for the duration of the Initial Term. During the Initial Term, the Customer may not terminate the Services for convenience.
3.3. After the expiry of the Initial Term, the Services shall continue indefinitely until terminated by either Party on not less than 90 days’ written notice to the other Party.
4. Fees, Payment and Payment Facilities
General
4.1. Within 30 days of the date of the final monthly Invoice, the Customer shall pay the Fees to the Service Provider as consideration for the Services. Unless the Customer notifies the Service Provider in writing of a dispute within 3 Business Days of delivery of an Invoice, the contents of such Invoice shall be deemed to be correct and shall not be disputable.
4.2. If the Customer notifies the Service Provider in writing of a dispute in relation to an Invoice within the prescribed time period, then (i) the dispute shall be referred to the financial director of the Service Provider for resolution within 14 days of the dispute being referred to him and (ii) if the dispute cannot be resolved within the prescribed time period, it may be submitted by either Party to and be determined under the auspices of and in terms of the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa, in Johannesburg and the costs of any such arbitration shall be determined by the arbitrator as part of his or her finding (any finding by the arbitrator shall be final and binding on the Parties). Nothing herein contained is restrictive inhibiting a party to instead seek recourse through litigation in the ordinary course within their sole and absolute discretion instead of arbitration.
4.3. A certificate under the signature of a representative of the Service Provider (the appointment or qualification or authority of the person signing on behalf of the Service Provider need not be proved) as to the amount owing by the Customer and the due date for payment shall be prima facie proof of the amount of the Customer’s indebtedness and such certificate could be used against the Customer for the purpose of obtaining provisional sentence, default judgment or summary judgment.
4.4. All payments shall be made in RSA Rand and cents, free of set-off, deduction, bank exchange and other charges, by way of electronic funds transfer into a bank account of the Service Provider as set out on the Application Document and/or the Invoice.
4.5. The Customer acknowledges and agrees that the Service Provider may increase the monthly Fees payable by the Customer in relation to the Services on written notice to the Customer, provided that (i) such increase may only occur after the expiry of the Initial Term and (ii) thereafter, may not occur more than once in any subsequent 12 month period.
Unpaid Fees
4.6. Should any amount due by the Customer to the Service Provider not be paid by the Customer on the due date then (i) all amounts owed by the Customer shall at once become due, owing and payable (ii) the Customer shall be liable to pay interest in respect of amounts unpaid as at due date at the Prime Rate plus 2% from the due date until the date of full payment of the outstanding amount (iii) the Customer shall, in addition, pay any legal costs incurred by the Company on the attorney and own client scale, including collection commission and the cost of counsel on brief and (iv) the Service Provider shall be entitled without notice to suspend all Services to the Customer and/or refuse the supply of any new Services to the Customer until such time as it receives payment in full of the outstanding amounts including any interest accrued thereon and legal fees.
5. Services
5.1. At the Effective Date, the Service Provider shall render to the Customer the Services selected in the Application Document. The Customer may require the Service Provider to render additional Services to the Customer from time to time and such additional Services shall be subject to these Terms and Conditions, provided that certain additional Services may be subject to additional and/or particular terms and conditions, which shall be accepted by the Customer and be appended to these Terms and Conditions.
5.2. The Service Provider shall render the Services to the Customer for the duration of these Terms and Conditions, exercise all reasonable skill, care and diligence in the provision of the Services to the Customer pursuant to these Terms and Conditions, provide the Services to the Customer in conformity with sound business practice and in compliance with any relevant law, statute or regulation and ensure that it at all times has such suitably competent, skilled and experienced staff resources at its disposal as are necessary for it to provide the Services to the Customer.
5.3. The Service Provider guarantees the provision of services strictly in accordance with the Application Documentation. The Service Provider does not make any representations nor does it give any warranty or guarantee of any nature whatsoever that the Services shall meet the needs of the Customer now or in the future or its suitability for any particular purpose, whether that purpose is disclosed to the Service Provider or not.
6. General Obligations of the Customer
6.1. When using the Services, the Customer shall:
6.1.1. not commit, nor attempt to commit, any act or omission which directly or indirectly (i) damages in any way the Service Provider’s technical infrastructure or any part thereof (ii) impairs or precludes the Service Provider from being able to provide the Services in a reasonable and business like manner (iii) constitutes an abuse or malicious misuse of the Services (iv) or is calculated to have the abovementioned effect;
6.1.2. not modify any equipment (including but not limited to router equipment) utilised by the Customer to receive any of the Services, in any way whatsoever, including the changing of any of the settings of such equipment;
6.1.3. not at any time use the Services in contravention of any Applicable Laws. In particular, the Customer undertakes to familiarise itself and ensure that it is kept continuously appraised of all Applicable Laws which has any bearing on the Services and/or their use.
6.2. The Customer is responsible to ensure that its hardware and software is properly secured and insured at all times against any and all risk, including but not limited to theft, lightning damage, unauthorised access. This is because all such hardware and/or software is in the possession, custody and control of the Customer and only accessible to the Service Provider from time to time as stipulated herein.
6.3. The Service Provider shall be held responsible for the rendition of Services and / or supply of goods or equipment strictly in accordance with the Application Document. The Customer undertakes to place the Service Provider in a position to perform. The Service Provider shall be fully indemnified against losses, damages, costs, claims, penalties, fines or otherwise due to any failure by the Customer to correctly licence software and applications. The Customer understands that the latter failure may result in a suspension and thereafter termination of these Terms and Conditions.
7. Personal Information and Data Security
7.1. The Service Provider shall only use and Process the Customer’s Personal Information in accordance with the POPI Act. We will only share the Customer’s Personal Information with our Affiliates and contractors, if and only to the extent that it is necessary for them to receive that Personal Information to render the Services to the Customer (including, for example, the installation of equipment or feasibility assessments for fibre or wireless internet).
7.2. Where the Service Provider acts as the Operator of the Customer (because it Processes Personal Information for and on behalf of the Customer, where the Customer is acting in the capacity of the Responsible Party), then:
7.2.1. the Parties agree that these Terms and Conditions constitute the written contract between the Customer, as the Responsible Party, and the Service Provider, as the Operator, as contemplated in section 21(1) of the POPI Act.
7.2.2. The Service Provider shall secure the integrity and confidentiality of the Personal Information that it Processes for and on behalf of the Customer that is in its possession and/or under its control (“Services Data”) by taking appropriate, reasonable technical and organisational measures to prevent the loss of, damage to or unauthorised destruction of such Personal Information and unlawful access to, or processing of, Personal Information in accordance with section 19(1) of the POPI Act.
7.2.3. The Service Provider shall process the Services Data provided to it by the Customer only in accordance with the provisions of these Terms and Conditions and it shall treat all Services Data which comes to its knowledge as confidential and it shall not disclose that Services Data, unless required by law or in the course of the proper performance of its duties pursuant to the Agreement, in the manner contemplated in section 20 of the POPI Act.
7.2.4. The Service Provider shall notify the Customer immediately where there are reasonable grounds to believe that the Services Data has been accessed or acquired by any unauthorised person, as contemplated in section 21(2) of the POPI Act.
7.2.5. The Customer warrants and represents in favour of the Service Provider that all Services Data provided to it pursuant to the Agreement and/or as part of the Services is Processed by the Customer in accordance with the POPI Act. The Customer indemnifies and holds harmless the Service Provider from any and all losses arising from any claim or action brought against the Service Provider arising from, or due to, the Customer’s breach of its obligations pursuant to this clause 7 and/or the POPI Act.
7.3. The Service Provider has organisational, physical, administrative and technical measures in place to protect Personal Information stored on behalf of the Customer in the unlikely event that this is necessary. The Service Provider continuously monitors its information security programmes, policies and procedures to ensure they are consistent with best practice, and operating in a manner which limits the risks of unauthorised disclosure or use. Only authorised employees with a valid, work-related need, may access personal information stored on behalf of the Customer. In the unlikely event of a data breach the Service Provider will issue breach notifications as may be required under the POPI Act.
8. Confidentiality
8.1. Each Party shall keep strictly confidential all information supplied to or acquired by it in connection with these Terms and Conditions and/or the Services and shall not use such information or any part thereof for any purpose other than expressly permitted under these Terms and Conditions.
9. Limitation and Variation of Services
General Limitations and Variations
9.1. The Service Provider will not reduce the specifications or capacity of a Service below those specified on the Application Document. However the Customer acknowledges and agrees that (i) the Service Provider may establish limits in relation to the use of the Services (ii) the Service Provider has no responsibility for and/or is not liable for the deletion, corruption or failure to store any messages or other content maintained or transmitted by any Service Provider service, unless such loss is caused by the wilful misconduct and/or gross negligence of the Service Provider (iii) the features, parameters (for example, the amount of storage available) or existence of any Service may change at any time and the Service Provider endeavours to notify the Customer of such changes.
Reliance on Third Parties
9.2. The Service Provider hereby advises the Customer that the Service Provider does not operate in isolation but relies on certain services, equipment and/or infrastructure which are provided by a number of third parties who provide interrelated and connected services which as a whole, allows the infrastructure of the Service Provider to function. These third parties operate as independent service providers who may be indirectly contracted by the Service Provider and the Customer accepts and acknowledges this fact.
9.3. Whilst the Service Provider shall use all reasonable endeavours to ensure that the Services are operational at all times, the Service Provider does not (and cannot) warrant that the Services will be operational on a 24 hour per day / 365 days per year basis, this being due to the nature of the telecommunications industry, which is dependent on the actions and/or input of a number of independent third parties whom the Service Provider has no direct control over. Accordingly, the Service Provider shall not be liable for nor will it reimburse the Customer for any Fees paid or costs incurred by the Customer for Services that have been interrupted/non-operational for any period of time due to the failure of any third party operations and/or services and/or equipment and/or infrastructure (irrespective of whether the Service Provider has entered into a service level agreement with such third party).
9.4. Notwithstanding the provisions of this clause 9, the Service Provider shall use its best endeavours to notify the Customer in advance of any failure of, or interruption to the Services, and where applicable any required maintenance and repairs which may result from such failure, interruption or unavailability, where the Service Provider is in a position to do so.
9.5. The Service Provider shall use reasonable endeavours to liaise and engage with the third party service providers in order to ensure that the Services can recommence as soon as possible after any interruption thereto.
10. Indemnity and Limitation of Liability
10.1. The Customer acknowledges and understands that it uses the Services at its sole risk. The Service Provider shall not be liable for any losses suffered by the Customer as a result of the Services (or a failure of the Services), unless such losses arise directly as a result of the Service Provider’s breach of these Terms and Conditions, wilful misconduct and/or gross negligence.
10.2. Notwithstanding the form (whether in contract, delict, or otherwise) in which any legal action may be brought, the Service Provider’s maximum cumulative liability for general and/or direct damages for any breach of these Terms and Conditions, wilful misconduct and / or gross negligence shall be limited to an aggregate amount of all the Fees paid to it by the Customer during the 12 month period immediately preceding the alleged incident. The Customer shall be required to mitigate it’s loss/es
10.3. Notwithstanding any other provisions of these Terms and Conditions, neither Party shall be liable for any indirect or consequential damages and such liability is excluded whether it is foreseen, foreseeable, known or otherwise.
11. Force Majeure
The Customer shall not have any claim of any nature whatever against the Service Provider for any failure to carry out any of its obligations under these Terms and Conditions as a result of force majeure, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, riot, political or civil disturbances, the elements, any act of any State or Government or any other authority or any other cause whatever beyond the control of the party in question. Should the circumstances endure for a continuous period of more than 3 months, either Party may terminate these Conditions with immediate effect on written notice to the other.
12. Termination and Breach
12.1. Either Party may terminate these Terms and Conditions and the Services forthwith on written notice to the other Party if the other Party breaches any of these Terms and Conditions and fails to remedy such breach within 10 Business Days of having been given written notice calling for such breach to be remedied.
12.2. The Service Provider may terminate these Terms and Conditions forthwith on written notice if the Customer:
12.2.1. fails to pay any amount due by it to the Service Provider after having received 10 Business Days written notice from the Service Provider that is it is required to do so; or
12.2.2. is placed under judicial management or liquidation or is sequestrated (whether provisionally or finally) or takes any steps for the surrender of its estate or composition with its creditors or becomes subject to business rescue proceedings; or
12.2.3. has any judgment taken against it and fails to satisfy the same within 15 Business Days thereof.
For so long as these Terms and Conditions remain in force and effect, and for a period of 1 year thereafter, the Customer shall not solicit or endeavour to entice away for employment from the Service Provider any person who is or was in the full-time employment of the Service Provider (“Employee”). If a Customer breaches this clause 13, then the Customer hereby agrees to and shall immediately, on date of commencement of employment by the Employee for the the Client, pay to the Services Provider (as a finder’s fee) an amount equivalent to the gross annual remuneration earned by the Employee as at date of termination with the Service Provider. Where applicable, interest and costs as contemplated in clause 4.6 shall be payable by the Client to the Service Provider.
14. Notices
14.1. Notices required by these Terms and Conditions shall be in writing and will be delivered in the manner prescribed, failing which either by personal delivery or by email to the address or number specified by the Service Provider in clause 1 and by the Customer in the Application Document.
14.2. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested, with all postage and charges prepaid, and shall be deemed to have been received on the 5th Business Day after posting. Emails will be deemed to be received on the Business Day they are sent if sent before 16h00 on that day or on the next Business Day thereafter if sent after 16h00 on a business day or if sent on a non-business day.
15. Liability
15.1. Notwithstanding any other provision of these Terms and Conditions, the Service Provider shall not be liable to the Customer for any loss or damage of whatsoever nature, except by reason of its wilful misconduct, fraud, gross negligence or breach with respect to the performance of its obligations and duties under these Terms and Conditions.
15.2. To the fullest extent permitted by Applicable Law, the Customer indemnifies and holds the Service Provider and each director, manager, officer and employee of the Service Provider (“Indemnified Parties”) harmless against any and all liabilities, actions, proceedings, claims, costs, demands, damages (including special, consequential and indirect damages) or expenses (including attorneys and other professional fees and costs incurred in connection with investigating, preparing, defending, prosecuting or settling any relevant claim) incurred by reason of (i) the performance of the Customer’s obligations or duties under or pursuant to these Terms and Conditions; and/or (ii) the performance of services by any sub-contractor, and each director, manager, officer and employee of such sub-contractor, to whom the Customer has sub-contracted all or any of its obligations under these Terms and Conditions or any indemnity given to such sub-contractor, except in each case where such liabilities, actions, proceedings, claims, costs, demands, damages or expenses arise from their wilful misconduct, fraud, bad faith, gross negligence or breach with respect to such obligations, duties or services.
16. Definitions
16.1. For purposes of these Terms and Conditions, unless the context indicates otherwise, the words and expressions below shall have the following meanings and cognate expressions shall have corresponding meanings:
| 16.1.1. | Affiliates | the directors, managers, shareholders or members, agents, representatives, holding companies and subsidiary companies (as those terms are defined in the Companies Act, 2008) of the Service Provider; |
| 16.1.2. | Applicable Laws | all applicable (in the circumstances and context concerned) laws (statutory or common), rules, ordinances, regulations, grants, concessions, franchises, licences, orders, directives, judgments, decrees, and other governmental restrictions, including permits and other similar requirements, whether national, provincial, territorial, municipal, foreign or local, and whether legislative, administrative or judicial in nature; |
| 16.1.3. | Application Document | the accepted quotation document generated from time to time by the Service Provider’s CRM system, containing a unique quotation number and provided to the Customer by the Service Provider and which document is incorporated by reference in these Terms and Conditions; |
| 16.1.4. | Business Day | any day other than a Saturday, Sunday or public holiday in the RSA, within the meaning of the Public Holidays Act, 1994; |
| 16.1.5. | Effective Date | the date/s on which the Service Provider commences the rendition of approved Services to the Customer in accordance with accepted Application Documents from time to time; |
| 16.1.6. | Customer | the Party to which the Service Provider provides the Services, whose details are set out in the Application Document; |
| 16.1.7. | Fees | the monthly fees and/or rates payable by the Customer to the Service Provider in consideration for the provision of the Services as may be set out in the Application Document or as agreed in writing from time to time; |
| 16.1.8. | Initial Term | the initial period for which the Services shall be provided by the Service Provider to the Customer as set out in the Application Document, or if no such period is set out therein, a period of 12 months from the Effective Date; |
| 16.1.9. | Invoice | the monthly invoice issued by the Service Provider to the Customer setting out the Fees, which invoice shall be delivered to the email address of the Customer as set out in the Application Document; |
| 16.1.10 | Invoice Date | the date on which the Service Provider issues the Invoice to the Customer (which date shall be reflected on the Invoice); |
| 16.1.11. | Operator | has the meaning given to that term in the POPI Act; |
| 16.1.12 | Parties | the Customer and the Service Provider and their permitted assignees and successors-in-title, or any one of them as the context may require; |
| 16.1.13 | Personal Information | has the meaning given to that term in the POPI Act; |
| 16.1.14 | POPI Act | the Protection of Personal Information Act, 2013; |
| 16.1.15 | Prime Rate | the basic quoted rate of interest at which Nedcor Bank Limited lends to its customers on unsecured overdraft, as certified by any general manager of that bank, whose authority or appointment it shall not be necessary to prove; |
| 16.1.16 | Process | has the meaning given to that term in the POPI Act; |
| 16.1.17 | RSA | the Republic of South Africa; |
| 16.1.18 | Services | the services to be provided by the Service Provider to the Customer, as selected and described in more detail in the Application Document and such other services as the Customer may apply for, from time to time; and |
| 16.1.19 | VAT | value added tax which is levied in respect of goods and services in terms of the RSA Value Added Tax Act, 1991. |
Turrito Standard Terms and Conditions for Equipment Lease
These additional Terms and Conditions shall only apply to the extent that the Customer has elected to enter into an Equipment Lease with the Service Provider. If the Customer has elected to enter into an Equipment Lease with the Service Provider, these additional terms and conditions will govern the Equipment Lease shall constitute an amendment to the Turrito Standard Terms and Conditions.
1.1. If the Customer has selected to lease Hardware from the Service Provider (“Equipment Lease”), then these additional terms and conditions shall apply to the Equipment Lease. The Parties agree that, if and to the extent of there being a conflict between the provisions of these Terms and Conditions for Equipment Lease and the provisions of the Terms and Conditions, then the provisions of these Terms and Conditions for Equipment Lease shall prevail only (i) to the extent of any such inconsistency and (ii) in respect of the Equipment Lease.
1.2. For purposes of the Hardware Lease and unless the context indicates otherwise, the words and expressions below shall have the following meanings and cognate expressions shall have corresponding meanings:
| 1.2.1. | Delivery Date | the date on which the Service Provider will deliver the Equipment to the Premises and install and configure the Equipment, which date is set out in the Application Document, or if no such date is set out therein, the date notified in writing by the Service Provider to the Customer; |
| 1.2.2. | Dispose | to sell, transfer, exchange, liquidate, cede, dispose of or otherwise alienate and cognate expressions shall have a corresponding meaning; |
| 1.2.3. | Encumber | any mortgage, pledge, lien, assignment or cession conferring security, hypothecation, security interest, preferential right or trust arrangement or other encumbrance securing any obligation of any person; |
| 1.2.4. | Equipment | any firewall, router, gateway, server, security device, backup device and/or any other equipment selected by Customer in the Application Document for rental by the Customer at the Premises and shall include any software, hardware, cables, connectors, programmes, interfaces, associated media, printed materials, and/or on-line or electronic documentation associated with it; |
| 1.2.5. | Equipment Software | any software installed by the Service Provider on the Equipment |
| 1.2.6. | Lease Period | the minimum lease period described in the Application Document or if none is specified then 12 months; |
| 1.2.7. | Premises | the physical address provided by the Customer in the Application Document (or if no such address is provided, the physical address of the Customer notified in writing to the Service Provider), at which address the Customer shall use the Equipment; and |
| 1.2.8. | Rental | the monthly rental amount set out in the Application Document, or such other rental as the Parties may agree in writing; |
Lease
1.3. With effect from the Effective Date and for the duration of the Lease Period, the Service Provider lets and the Customer hires from the Service Provider the Equipment on the terms set out in this clause 18.
1.4. At the expiry of the Lease Period, the lease shall continue on a month-to-month basis, until terminated by either Party on not less than 30 days’ written notice to the other Party.
1.5. The Service Provider owns the Equipment and it shall remain the owner thereof at all times and nothing in these Terms and Conditions shall be construed as conferring any rights of ownership in and over the Equipment on the Customer.
1.6. During the Lease Period, all risk in and to the Equipment shall pass from the Service Provider to the Customer and the Customer shall procure at its own cost and expense that the Equipment is and remains insured with a reputable insurer for the replacement value thereof, against all-risks, including but not limited to, inter alia, theft, damage and destruction and other insurable risks.
Delivery
1.7. The Service Provider shall quote for delivery and installation of the Equipment at the Premises, should it be necessary, and the Customer shall accept such quote for delivery to proceed.
1.8. Prior to the Delivery Date, the Customer shall ensure that (i) the Premises are prepared for delivery and installation purposes to the standard which is agreeable to the Service Provider and (ii) the Service Provider’s technicians or its agents have full access to the Premises in order to install and connect the Equipment and (iii) the Premises are protected from any destructive elements including without limitation, lightning, flooding, and/or fire.
1.9. The Customer shall accept installation of the Equipment by allowing the Service Provider or its agents, reasonable access to the Premises and shall sign a delivery note, which delivery note shall constitute prima facie proof that (i) the Equipment was delivered to and received by the Customer in good condition and (ii) installation and/or set-up and/or configuration of the Equipment fully complies with the Customer’s requirements pertaining to the installation and configuration of the Equipment.
1.10. The Service Provider shall use its reasonable endeavours to comply with the Delivery Date, but the Customer shall not be entitled to cancel these Terms and Conditions and/or the Hardware Lease or refuse to accept delivery, installation, set-up and/or configuration because of the Service Provider’s failure to do so on Delivery Date.
Rental
1.11. In consideration for the lease of the Equipment, the Customer shall pay to the Service Provider the Rental, monthly in advance on or before the seventh day of every month.
1.12. The Rental shall escalate on each successive anniversary of the Effective Date by 8%.
1.13. The Customer shall not for any reason whatsoever withhold, defer, or make any deduction from, or set off against, any payment due to the Service Provider in terms of the Terms and Conditions.
1.14. Any taxes, fees, assessments or other charges of any kind imposed by the RSA government, or any governmental unit or department within the RSA with respect to any amount payable to the Service Provider, other than income tax, shall be borne and paid by the Customer.
Customer’s duties in respect of the Equipment
1.15. For the duration of the Lease Period, the Customer shall ensure that the Equipment is locked and sealed by the Customer and that no person (other than the employees or authorised agent of the Customer shall be allowed to (i) unlock and/or break the seal or (ii) access, open and/or tamper with the Equipment (iii) move the Equipment to any other location without the express written permission of the Service Provider and (iv) use the Equipment for any purpose other than the purpose intended for by the Service Provider.
1.16. The Customer shall otherwise use the Equipment strictly in accordance with the manufacturer’s use and condition specifications and standards, and shall promptly comply with any written instructions or directions received from the Service Provider from time to time in connection with the operation and use of the Equipment.
1.17. The Customer shall (i) take all necessary and reasonable steps to maintain and protect the interests of the Service Provider in relation to the Equipment, and not take any action which would reasonably be regarded as being materially prejudicial to any such interests (ii) not use or permit the Equipment to be used in a manner that renders voidable any insurance policy taken out over that Equipment (iii) carry out its obligations under these Terms and Conditions with the due professional care, diligence and skill expected of a reasonable person having the professed skills, expertise and reputation of the Service Provider, and in good faith and (iv) when using the Equipment, at all times comply with Applicable Laws.
1.18. In the event of an accident to, or breakage of, any item of the Equipment or if any part of the Equipment is worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered or declared unfit for use for any reason, the Customer shall notify the Service Provider in writing as soon as possible, but in no event later than 5 calendar days from the occurrence of such event.
1.19. Should the Customer issue such a notice to the Service Provider , and the relevant breakage or failure of the Equipment be caused by any failure of the Customer to comply with these Terms and Conditions, then the Customer shall cause the Equipment to be promptly repaired at its sole cost and expense, it being agreed that any and all replacement shall be in as good operating condition as, and with a value and utility at least equal to, the parts replaced (assuming such replaced parts were in the condition and repair required to be maintained by the terms hereof).
1.20. The Customer consents and shall ensure that the Service Provider may at any time enter the premises where the Equipment is installed to inspect it, provided that the Service Provider supplies the Customer with reasonable prior notification.
1.21. The Customer shall not sublet or permit anyone else to possess the Equipment or any part thereof unless agreed to in writing by the Service Provider.
Maintenance
1.22. The Customer shall take all reasonable steps and measures to ensure that the Equipment is kept in a cool, dry and clean location which is properly maintained and secured; fully and properly maintained and serviced in accordance with the manufacturer’s specifications, standards and recommendations.
1.23. The Customer shall not undertake, or cause to be undertaken, any alterations, additions or modifications to the Equipment without the Service Provider’s prior written consent.
No Disposal or Encumbrance
1.24. The Customer shall at all times during the Lease Period, maintain the Equipment free and clear of all Encumbrances and shall not Dispose of any of the Equipment.
Equipment Software
1.25. If the Customer has requested Equipment Software, detailed in the Application Document, as part of these Terms and Conditions, the Service Provider grants to the Customer a non-transferable, personal, non-exclusive sub-license to use the Equipment Software.
1.26. The Customer shall use such Equipment Software solely on and in conjunction with the Equipment on the terms and conditions provided by the vendor to the Service Provider and shall not copy, translate, modify, adapt, decompile, dissemble or reverse engineer the Equipment Software, convert the whole or any part of the Equipment Software from object code into source code.
Return of the Equipment
1.27. On the termination of the Terms and Conditions and/or the Equipment Lease as a result of an effluxion of time and/or the termination of the Lease Period, the Service Provider shall at its costs, collect the Equipment from the Customer and the Customer shall ensure that the Service Provider has access to the Premises for this purpose.
1.28. Should the Service Provider terminate the Terms and Conditions and/or the Equipment Lease as a result of the breach of the Customer, the Customer shall, at its own cost and expense, deliver each item of the Equipment to the Service Provider to such address in the RSA as the Service Provider may notify the Customer of in writing (or reimburse the Service Provider for all actual costs incurred by the Service Provider to recover the Equipment).
1.29. The Equipment shall be returned by the Customer in the same condition as that Equipment was delivered to the Service Provider to the Customer, fair wear and tear excepted.
Equipment Warranties and Liability of the Customer
1.30, The Customer acknowledges that the Equipment is being made available to it hereunder on an “as is” basis and the Service Provider makes no representations or warranties in relation to the Equipment save that it is the owner thereof.
1.31. The Service Provider gives no warranties and makes no representations in relation to the description, quality, suitability or their fitness for any purpose whatsoever or as to their value, condition, design or the operation of any of the Equipment.
1.32. The Service Provider further assumes no responsibility for the condition, safety, legal compliance or usability of the Equipment, and makes no representation or warranty, express or implied, in relation to the Equipment, including, without limitation, as to their value, design, utility, manufacture, operation or condition, the absence of defects (patent or latent), and any implied warranty of merchantability or fitness for a particular purpose.
1.33. The Customer acknowledges and confirms that it has not, in entering into these Terms and Conditions, relied on any condition, warranty or representation by the Service Provider or any person on the Service Provider ’s behalf, express or implied, whether arising by law or otherwise in relation to the Equipment or any part thereof, including, without limitation, warranties or representations as to the description, value, condition, design or operation of any kind or nature and the benefit of any such condition, warranty or representation by the Service Provider is hereby irrevocably and unconditionally waived by the Customer.
Default in Payment of Rentals
1.34. In the event that the Customer defaults in the punctual payment of any monies as they fall due in terms of the Equipment rental, the Service Provider is entitled to claim immediate payment of all amounts which would have been payable in terms of the agreement until expiry of the initial rental period reflected in the accepted quotation, whether such amounts are due for payment or not. This is in addition to the recourse referenced in clauses 4.5/4.6 and 12 of the Terms and Conditions.
Landlord’s and Mortgagee’s Lien
1.35. The Customer shall forthwith notify the Service Provider in writing of the name and address of every owner (other than the Customer) and/or mortgagee of any premises on which the Equipment is situated and in the event of any change in owner or mortgagee of such premises, the Customer shall give notice to the Service Provider within 7 (SEVEN) days of the name and address of the new owners, or mortgagee. Furthermore, the Equipment shall not whilst this agreement is in existence, be moved to any other premises, without the prior written consent of the the Service Provider.
1.36. The Customer shall in all instances and at all times ensure to notify any existing or prospective landlord or owner or mortgagee of such premises on which the Equipment is situated in writing of the Service Provider’s ownership of the Equipment and deliver proof of such notices to the Service Provider.
1.37. The Service Provider shall be entitled to give such notice should the Customer fail for any reason to do so and shall also be entitled to require to obtain from any such owner or mortgagee a written acknowledgement of any such notification.
1.38. The Customer shall, at his own expense, keep the Equipment free from any attachment, hypothecation or other legal charge or process.
1.39. The Customer shall not be authorised to create or permit any lien to arise over the Equipment. However, should any lien arise, the Service Provider may at it’s sole and absolute discretion discharge such lien and recover the costs of such discharge from the Customer, together with interest and costs as prescribed in the Terms and Conditions.
1.40. The Customer acknowledges and agrees that the Equipment is movable property and shall so remain notwithstanding the means used to erect it or install it on any premises, and the Customer also agrees that there is no intention, nor was there any intention, that the Equipment should accede to or become permanently attached to any premises, whatsoever.
Turrito Standard Terms and Conditions for Support Services
These additional Terms and Conditions shall only apply to the extent that the Customer has elected to receive Support Services from the Service Provider. If the Customer has elected to receive Support Services from the Service Provider, these additional terms and conditions will govern such Support Services and shall constitute an amendment to the Turrito Standard Terms and Conditions.
1. Support Services
1.1. Only if the Customer has selected to receive the Support Services from the Service Provider, these additional terms and conditions shall apply to those Support Services. The Parties agree that, if and to the extent of there being a conflict between the provisions of these Terms and Conditions for Support Services and the provisions of the Terms and Conditions, then the provisions of these Terms and Conditions for Support Services shall prevail only (i) to the extent of any such inconsistency and (ii) in respect of the Support Services.
1.2. For purposes of the Support Services and unless the context indicates otherwise, the words and expressions below shall have the following meanings and cognate expressions shall have corresponding meanings:
| 1.2.1. | Authorised Representatives | the representatives of the Customer set out in the Application Document or otherwise notified to the Service Provider, who are authorised to request Support Services from the Service Provider; |
| 1.2.2. | Bundled Hours | the maximum number of hours allocated to the Customer for Support Services at the Inclusive Rate as specified in the Application Document, the increments of time which are allocated as follows:
For Support Services provided at the Premises, time will be allocated in 30 minute increments. For each support call, any amount of support provided which is between one and 30 minutes in duration, shall be deemed to be a 30 minute increment; For Remote support, time will be allocated in 15 minute increments. For each support call, any amount of support provided which is between one and 15 minutes in duration, shall be deemed as a 15 minute increment; |
| 1.2.3. | Carry-Over Hours | the hours of Bundled Hours not utilised in a particular Maintenance Month which shall be allocated to the next Maintenance Month’s Bundled Hours after which they shall expire; |
| 1.2.4. | Exclusive Rate | the rate per hour at which the Service Provider shall provide the Support Services to the Customer once the Bundled Hours has been exceeded (being Out-of-Bundle Hours), as specified in the Application Document; |
| 1.2.5. | Hardware | includes but is not limited to, the Customer’s computer terminals, laptops, tablets, smart phones, servers, switches, routers, screens, printers and peripheral equipment used to access and operate the Software; |
| 1.2.6. | Inclusive Rate | the rate per hour of Bundled Hours at which the Service Provider shall provide the Support Services to the Customer, as specified in the Application Document; |
| 1.2.7. | Maintenance Month | a period of one month, commencing on the first day of a calendar month and continuing until the last day of that calendar month; |
| 1.2.8. | Out-of-Bundle Hours | those hours which do not fall within the Bundled Hours and shall be charged at the Exclusive Rate; |
| 1.2.9. | Overtime | any Support Services provided by the Service Provider to the Customer outside of the Standard Hours; |
| 1.2.10. | Premises | the physical addresses notified in writing by the Customer to the Service Provider at which addresses the Customer shall utilise the Services; |
| 1.2.11. | Remote | Support Services provided from a remote location via telephone, remote access software or otherwise; |
| 1.2.12. | Response Time | the time which it takes for the Service Provider to respond to a request for support as specified by the Application Document; |
| 1.2.13. | Service Ticket | a request by a Customer to the Service Provider for Support Services or UTR Services by electronic mail or telephone call to the Support Helpdesk; |
| 1.2.14. | Software | operating system and computer application software installed from time to time on the Customer’s Hardware and used by the Customer for commercial operational purposes, whether incorporated in humanly intelligible media or not; |
| 1.2.15. | Standard Hours | mean 08h00 to 17h00 on all Business Days; |
| 1.2.16. | Support Desk | the support helpdesk of the Service Provider, which desk may be contacted at the email address support@turrito.com and the telephone number (010) 140 4400 or such other electronic mail address or telephone number of which the Service Provider may notify the Customer from time to time; |
| 1.2.17. | Support Services | means:
|
| 1.2.18. | System | the Customer’s computer system, incorporating the network, Hardware and Software; |
| 1.2.19. | UTR Services | the specified (u)nlimited (t)elephonic and (r)emote Support Services provided by the Service Provider and invoiced on a per User per month basis which are not measured by time and are governed by a Fair Use Policy which exclude:
|
| 1.2.20. | UTR User | the UTR Users of the UTR Services registered with the Service Provider to qualify for UTR Services for up to three devices; |
Support Services
1.3. The Service Provider shall use only suitably qualified employees to render the Support Services.
1.4. The Customer shall inform the Service Provider of any faults on the System as soon as possible after any such fault or problem is discovered and shall provide the Service Provider’s employees with reasonable access to the System including such personal access as may be required upon arrival of the employee of the Service Provider at the Premises.
Procedure for Requesting Support Services:
1.5. Only an Authorised Representative or UTR User may request Support Services and shall request the Support Services from the Support Desk by logging a request for a support call by email or telephone.
1.6. The Service Provider shall not be obliged to provide the Support Services unless requested by an Authorised Representative or UTR User.
1.7. The Customer shall provide, at its own cost, such equipment or access as may be required by the Service Provider to render the Support Services, which shall include, but not be limited to, licensed copies of the Software
Support Desk
1.8. The Support Desk shall:
1.8.1. acknowledge, and respond to the request for Support Services, within the Response Time, provided same is logged within the Standard Hours;
1.8.2. should it not be able to resolve the problem immediately, advise the Customer (to the extent that they may be able) of the estimated time to remedy any particular problem with the System, and keep the Customer appraised of any variation in the aforesaid estimate.
1.9. In the event of UTR Services being included in the Application Document then the above shall apply mutatis mutandis save that all references to the Authorised Representative shall be replaced with the UTR User. It is the responsibility of the Customer to inform the Service Provider in writing of any changes to the UTR Users.
1.10. The Customer warrants to the Service Provider that all Software is lawfully licensed to the Customer and the Customer indemnifies and holds the Service Provider harmless against all and any claims in the event that such Software is not properly licensed.
1.11. The Service Provider reserves the right, at its discretion, to install monitoring software on the Hardware to automatically send selective information to the Support Desk in order to improve the Support Services. This information is only related to the Hardware it is installed upon and does not include any Personal Information.
Fees, Payment and Payment Facilities:
1.12. Invoices in respect of Support Services rendered by the Service Provider to the Customer:
1.12.1. shall be (i) based on Bundled Hours and/or UTR Services and (ii) issued on the first Business Day, or as soon as possible thereafter, following the end of each Maintenance Month and shall be supported by copies of Service Tickets and detailed timesheets and logs relating to the Support Services rendered; and
1.12.2. may include (i) travelling charges incurred by the Service Provider at the rate as specified in the Application Document which shall be measured from the Service Provider’s office to the Premises and back again or a fixed travel fee for the month if stipulated in the Application Document (ii) Hardware and/or Software and/or any materials which have been quoted and duly accepted by the Customer during the Maintenance Month (iii) Out-of-Bundle Hours at the Service Provider’s prevailing Exclusive Rate and (iv) any Overtime.
1.13. Overtime shall be on an ad-hoc basis and must be requested by the Authorised Representative and approved and booked by the Service Provider. Overtime shall be charged at the Service Provider’s prevailing overtime rate, unless otherwise agreed in writing by the Parties.
1.14. Any Bundled Hours not used by the Customer during a Maintenance Month (as determined solely by the ticket system of the Service provider) shall become Carry-Over Hours which will expire at the end of the following Maintenance Month.
1.15. The Inclusive Rate and Exclusive Rate shall escalate as per Clause 4.4 from the Standard Terms and Conditions.
