Part 1: General Terms and Conditions
1. Commencement and termination.
1.1 These terms and conditions (“Agreement”) shall govern your purchase and use of iBurst modems, Connect and Go prepaid cards (“Cards”) and/or other Internet access and/or mobile data network (“MDN”) equipment and services from “iBurst Africa” or its authorized dealers.
2. Supply and installation of terminal equipment and MDN services
2.1 The order placed by you on iBurst Africa is subject to iBurst Africa’s approval in its sole discretion. If iBurst Africa does not approve the order, it shall not be under any obligation to you to give reasons for its decision.
2.2 iBurst Africa shall use its best endeavours to promptly comply with any supply and/or delivery and/or installation requirements recorded in the order but shall not be liable to you if such supply and/or delivery and/or installation is delayed or cancelled, for any reason. iBurst Africa may in its discretion refer you to a third party who may undertake the installation of the terminal equipment in its own name and behalf and not as an agent ofiBurst Africa.
2.3. You shall be responsible for obtaining all necessary approvals and authorities imposed by any competent authority or body and required for the purpose of any such supply and/or delivery and/or installation, and you hereby indemnify iBurst Africa against any claim or liability suffered by it by reason of such approval and authorities not having been obtained.
2.4 All risk in and to the terminal equipment supplied and delivered by iBurst Africa to you shall pass to you on delivery.
2.5 If any terminal equipment is lost, stolen or damaged, you shall immediately notify iBurst Africa in writing and until such notification, you shall remain liable for all costs and charges pertaining to such terminal equipment. iBurst Africa shall as soon as reasonably possible replace the terminal equipment. The cost of this replacement equipment shall be for your account. Such loss, theft or damage and/or the replacement of the terminal equipment and/or the allocation of a new mobile access number for any reason, shall in no way be deemed to constitute a termination of the Agreement which shall continue to be of full force and effect.
2.6 You hereby warrant and undertake in favour of iBurst Africa
- 2.6.1 Shall not use nor allow the MDN services made accessible to you in terms of this Agreement (“MDN Services”) to be used for any improper, immoral or unlawful purpose, nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the MDN Services.
- 2.6.2 Shall only use the terminal equipment provided byiBurst Africa, and comply with relevant legislation and regulations imposed by any competent authority and all directives issued by iBurst Africa relating to the use of terminal equipment and the provision of MDN Services.
- 2.6.3 Recognise that no right, title or interest in the software contained in the terminal equipment issued to you vests inyou.
- 2.6.4 Shall not, nor permit any third party to, reverse engineer, decompile, modify or tamper with the software contained in or pertaining to any terminal equipment.
2.7 Should you use up the data allocationson your Card, you may purchase top up data by going to www.iburstafrica.com and following the instructions. iBurst Africa reserves the right to limit your top up data.
2.8 Cards may only be used and will only operate on terminal equipment and the MDN provided by iBurst Africa.
2.9 You hereby acknowledge that the coverage areas are limited and that iBurst Africa will have no liability arising from your inability to access the MDN outside those coverage areas.
3.1 In consideration for the provision of the MDN Services, terminal equipment and any other services supplied by iBurst Africa toyou, you shall make payment to iBurst Africa of the applicable charges, as detailed in the your iBurst Africa Order Form where applicable and whether or not the MDN Services have been, or are being used , byyou.
3.2 Unless otherwise agreed to by iBurst Africa in writing, you shall make payment toiBurst africa:
- 3.2.1 for the supply and/or delivery and/or installation of terminal equipment on presentation of invoice and against such delivery.
- 3.2.2 for the provision of the MDN Services by purchasing Cards and top ups for cash.
4.1 iBurst Africa may at any time, without notice to you and in any manner whatsoever, suspend your access to the MDN Services in the event that:
- 4.1.1 Any modification, maintenance or remedial work is required to be undertaken pertaining in any manner whatsoever to the MDN Services. iBurst Africa will endeavour to inform you timeously in the event of planned maintenance.
- 4.1.2 You fail to perform any of your obligations, or breach any terms of the Agreement (in which event iBurst Africa may also suspend your use of the terminal equipment).
4.2 iBurst Africa reserves the right to require you to make payment of any applicable reconnection charges following the restoration of the MDN Services suspended in the circumstances contemplated in clause 5.1.2.
5. Limitation of liability
5.1 Without detracting from any of the other provisions of the Agreement, iBurst Africa shall not be liable to you for any loss or damage suffered by you and whether the same is direct or consequential, in the event that:
- 5.1.1 iBurst Africa fails for any reason whatsoever to supply and/ or deliver and/or provide installation of any terminal equipment either on the required date or at all; and/or
- 5.1.2 The MDN Services are interrupted, suspended or terminated for whatsoever reason; and/or
- 5.1.3 You purchase Cards from any person other than iBurst Africa or its authorized dealers; and/or
- 5.1.4 Such loss or damage was caused by any negligent act or omission on the part of iBurst Africa, its employees or its agents.
5.2 You hereby indemnify iBurst Africa against any damage, cost or liability arising from the provision of services or products to you in terms of this Agreement or from your use or misuse of such services or products.
5.3 iBurst Africa shall not be responsible for the preservation, integrity, correctness, security or confidentiality of any data or information on the MDN.
6.1 If you commit a breach of any of the terms and conditions hereof and remain in default for a period of 7 (seven) days after delivery to you of a written notice (“notice of breach”) from iBurst Africa calling for such breach to be remedied, iBurst Africa shall be entitled forthwith and without further notice to you to either terminate the Agreement or claim specific performance of all of your obligations, including the immediate payment of all sums of money payable by you, whether or not then due, in either event without prejudice to iBurst Africa’s right to claim such damages as it may have suffered by reason of such breach or failure.
7.1 Unless specifically stated otherwise, all prices and charges set out in any price list are inclusive of Tax and exclusive of any other applicable tax or duty, the liability for which shall vest withyou.
7.2 Your rights and obligations in terms of the Agreement may not be ceded or delegated to any third party. The rights and obligations of iBurst Africa in terms of the Agreement may be ceded and delegated by it to any other party on written notice toyou.
7.3 iBurst Africa may change the terms and conditions of this Agreement as a result of changes in taxes, laws, regulations, the terms and conditions of its mobile data telecommunication licence/s (“Licence”) or any circumstances or events similar to the foregoing. iBurst Africa shall notify you of any such changes in writing.
7.4 If iBurst Africa institutes legal proceedings against you to recover amounts due to iBurst Africa or takes any other legal steps arising out of the Agreement, you shall be liable for legal costs on the scale as between attorney and own client.
8.1 You hereby consent/authorise iBurst Africa to disclose your name, address and personal details to any party whenever it is reasonably necessary for iBurst Africa to properly perform its functions or protect its interests, or to enable iBurst Africa to provide emergency MDN Services toyou, or directory or repair services and information to MDN users generally. In addition, you consent to iBurst Africa using any information supplied by you for the purposes of informing you of iBurst Africa’s services which may interest you from time to time.
8.2 You consent/authorise receiving marketing, promotional updates and client satisfaction surveys from iBurst Africa.
Part 2: Conditions for sale of terminal equipment
9. Sale of terminal equipment and conditions applicable
9.1 The sale of terminal equipment by iBurst Africa to you shall be subject to the following terms and conditions:
- 9.1.1 All risk in and to the terminal equipment supplied and delivered by iBurst Africa to you shall pass to you on delivery.
- 9.1.2 .iBurst Africa’s obligations in terms of any warranties pertaining to the terminal equipment shall be limited to the warranty provided by the manufacturer of the terminal equipment. All delivery costs shall be for your account.
9.2 If, upon purchase of the terminal equipment, you discover any fault or defect in the terminal equipment, you shall within 3 days of purchase return the terminal equipment to iBurst Africa in the same condition and packaging as the terminal equipment was purchased along with the proof of purchase. iBurst Africa shall replace the damaged or faulty terminal equipment. In the event of you not returning the terminal equipment packaging toiBurst Africa, iBurst Africa may charge you a packaging fee.
9.3 iBurst Africa reserves its right to limit the number of items of terminal equipment that may be linked to your account. You may only log onto the network once from each account and may not establish multiple logon sessions simultaneously from the same account. iBurst Africa reserves its right to charge an additional amount to allow multiple simultaneous logons to the network from the same account.
10. Miscellaneous matters
10.1 Postal address:
- 10.1.1 Any written notice in connection with the Agreement must be addressed:
- 10.1.1.1 In the case of iBurst Africa to: 13 Avenue De La Justice, 291 Justice, Gombe, Kinshasa
- 10.1.1.2 In your case to the postal address and fax number set out in your iBurst Order Form
- 10.1.2 The notice shall be deemed to have been duly given 7 (seven) days after posting, if posted by registered post to the party’s address in terms of this sub-clause, or
- 10.1.2.1 On delivery if delivered to the party’s physical address in terms of either this sub-clause or the next sub-clause dealing with service of legal documents, or
- 10.1.2.2 On dispatch if sent to the party’s fax number and confirmed by registered letter posted no later than the next business day.
- 10.1.3 Either party may change its postal address for this purpose by notice in writing to the other party.
10.2 Address for service of legal documents :The parties choose the following physical addresses and fax numbers at which legal documents in connection with the Agreement may be served.
- 10.2.1 In the case of iBurst Africa, to: 13 Avenue De La Justice, 291 Justice, Gombe, Kinshasa, marked for the attention of Ronald Maina, General Manager - iBurst DRC.
- 10.2.2 Inyour case, to the physical address and fax number set out in your iBurst Africa Order Form.
- 10.2.3 Either party may change its address for the purpose of the Agreement to another physical address in DRC by notice in writing to the other party.
10.3 Entire contract: The Agreement contains all the express provisions agreed on by the parties with regard to the subject matter of the Agreement and the parties waive the right to rely on any alleged express provision not contained in the Agreement.
10.4 No representations: Neither party may rely on any representation which allegedly induced that party to enter into the Agreement, unless the representation is recorded in the Agreement.
10.5 Variation, cancellation and waiver: No contract varying, adding to, deleting from or cancelling the Agreement, and no waiver of any rights under the Agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.
10.6 Indulgences: If either party at any time breaches any of that party’s obligations under the Agreement, the other party (“the aggrieved party”):
- 10.6.1 May at any time after that breach exercise any right that became exercisable directly or indirectly as a result of the breach. In particular, acceptance of late performance shall for a reasonable period after performance be provisional only, and the aggrieved party may still exercise that right during that period.
- 10.6.2 Shall not be prevented from exercising the aggrieved party’s rights arising out of the breach, despite the fact that the aggrieved party may have elected or agreed on one or more previous occasions not to exercise the rights arising out of any similar breach or breaches.
10.7 Applicable law: The Agreement shall be interpreted and implemented in accordance with the laws of DRC.
You acknowledge having read and accepted the terms and conditions of the Acceptable Use Policy on the iBurst Africa website as well as the terms and conditions as set out herein.
12. Termination without Cause:
Without prejudice to any other rights at law or set out in the Agreement, iBurst Africa may terminate the Agreement upon written notice to you in the event that the Licence is revoked, terminated or amended for any reason whatsoever.
13. Interception of communications
You acknowledge iBurst Africa’s right to intercept, block, filter, read, delete, disclose and use all communications sent or posted via iBurst Africa’s network.