WEBSITE & SERVICES TERMS & CONDITIONSTER
MS
these STANDARD TERMS AND CONDITIONS (this “Agreement“) are entered into between TELCABLES (Pty) Ltd, registration number 1618849 and any and all of its Affiliates (“Provider”) and entity whose details are set out in any Order Form (“Customer”). Provider and Customer are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”.
This Agreement is applicable to the Customer’s access and use of the Website, contain exclusions and limitations of the liability of the Provider and impose legal obligations on the Customer. By using the Website, the Customer indicates its acceptance of and agreement to this Agreement. If the Customer does not agree, please do not use the website. Customer may notify the Provider in writing and the Provider will terminate the Customer’s access to the Website. Please read this Agreement carefully we recommend that you print a copy of these terms for future reference.
All the terms and conditions are important, but please pay special attention to the parts that are inside a box with bold writing. These parts contain information about those terms and conditions that have important consequences for the Customer. The wording in the boxes is only intended to bring the terms and conditions to the Customer’s attention, and to explain their nature and effect. They are aids to understanding only and are not terms and conditions themselves. They do not limit the meaning or application of the provisions of this Agreement, and do not apply to situations and examples described in the boxes or to similar situations or examples.
1 DEFINITIONS.
“Affiliate” shall mean any related entity or any other entity that directly or indirectly controls, is controlled by such as a subsidiary or is under common control with such entity. For purposes of this definition, the term “control” (including with correlative meaning, the terms “controlled by” and “under common control”) means with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
“Business Day” means any day other than weekends or public holidays in the Federal Republic of Nigeria.
“Confidential Information” means, in relation to the Customer or the Provider, any information of a confidential and/or commercially sensitive nature, howsoever obtained or received and whether or not marked confidential, including any technical, commercial, financial or scientific information, trade secrets, processes, marketing and business information, customers and supplier information, pricing information and/or any other information or material of whatsoever description or nature proprietary to the Customer or the Providers, whether in written, oral, magnetic, machine-readable or any other format, and includes the Data.
“Customer Premises” shall mean any location or locations off the TELCABLES Network selected by Customer to which the Services will be delivered in Nigeria.
“Data” means any data, including Personal Information, disclosed or supplied to the Provider by the Customer, to the Customer by the Provider.
“Data Protection Legislation” means, any and all laws relating to the protection of Personal Information, including the Nigeria Data Protection Act 2023, Nigeria Data Protection Regulation 2019 and the Nigeria Data Protection Regulation Implementation Framework 2020.
“Default Interest Rate” shall mean an annual interest equal to the lesser of (i) ten percent (10%) (compounded monthly) or (ii) the maximum interest rate permitted under applicable laws.
“Equipment” means any customer premise equipment provided and/or installed by Provider at Customer’s Premises on the basis of a loan, rental or otherwise, to enable Customer to utilise the Services.
“Force Majeure Event” shall mean an event that is beyond the reasonable control of a Party that has occurred without its fault or negligencel: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy. For the avoidance of doubt, it shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
“Governmental Authority” means any governmental, administrative, judicial, regulatory, self-regulatory or government- owned or -controlled body, department, commission, authority, tribunal, agency or entity to whose jurisdiction any Party may be subject;
“Last Mile” shall mean any portion of the service between the Customer Premises and the Provider’s point-of-presence (POP) including any part that is controlled by an independent 3rd party provider.
“Laws” means all laws, statutes, regulations, by-laws, rules, directives, and orders including all other requirements of any government or any government agency, body, authority, tribunal (including any regulator or court in any country in which this Agreement has an effect), as may be applicable to the Customer, the Provider or any matter governed by this Agreement, including but not limited to Data Protection Legislation.
“Licensed Technology” means the Equipment, Provider Software and Manuals made available by or on behalf of Provider pursuant to the OF.
“Notice of Completion” shall mean a written notice from Provider that the Services have been installed and tested by Provider and is functioning properly in accordance with the specifications set forth in the applicable OF.
“OF” shall mean the Order Form designated by Provider that sets out the details of Services to be provided by Provider.
“Personal Information” means information relating to an identifiable, living, natural persons, and where it is applicable, an identifiable, existing juristic person, including but not limited to: (i) information relating to the race, gender, sex, marital status, national, ethnic or social origin, colour, age, disability, language and birth of the person; (ii) information relating to the education or the medical, financial, criminal or employment history of the person; (iii) information relating to the financial affairs of the person; (iv) credit card details and transactional data; (v) any identifying number, symbol, e-mail address, physical address, number or other particular assignment to the person; (vi) the biometric information of the person; (vii) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; (viii) the views or opinions of another individual about the person; (ix) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person; and (x) any other information which may be treated or defined as “personal information” in terms of any Laws, including Data Protection Legislation.
“Processing” means collect, receive, record, organise, collate, store, develop, update, modify, retrieve, alter, consult, use, disseminate or perform any other act or action, whether or not by automated means, including any other act or action which may be treated or defined as “Process” or “Processing” in terms of any applicable Data Protection Legislation. The word “Processed” shall have a corresponding meaning.
“TELCABLES Network” shall mean the telecommunications network which carries Customer traffic between equipment that is owned and / or operated by Provider, including any Provider equipment and/or facilities.
“Services” shall have the meaning set out in Section 2 below.
“Service Charges” shall mean the installation fee and/or monthly recurring fees or charges payable by Customer to Provider for the Services, as identified in the OF.
“Service Commencement Date” shall mean the first to occur of the date set forth in any OF or the date of the relevant Notice of Completion.
“Standard Business Hours” shall mean any time from 08:00-17:00 on any Business Day.
“use” means to use, access, download, refer to, view or make use of the Website.
“Website” means the website developed and made available by the Provider for the purpose of allowing Customers to place orders for Equipment and Services provided by the Provider, accessible at www.telcables.ng
Application for use of the Website
This Agreement shall apply to the appointment of Provider by Customer for the provision of any electronic communication services, supply of the Equipment and/or related services as set out in an OF, and which OF is incorporated into this Agreement by reference (“Services”). The terms of an OF shall take precedence over any conflicting or inconsistent terms under this Agreement to the extent of such conflict or inconsistency.
The Provider has created and developed the Website, which is an online sales platform developed and made available by the Provider which will allow the Customers to order and purchase Equipment and Services online.
Customers will be responsible for uploading accurate Data onto the Website.
To apply for the use of the Website, Customer will be required to supply the Provider with all of the information required by us for the purposes of the Website, including but not limited to a Customer’s name, postcode, email address, and other Personal Information. To use the Website, the Customer will be required to agree to this Agreement and create a unique username and password at the time of registration (“Access Details“). The Customer will be required to enter your Access Details each time the Customer accesses the Website.
The Customer warrants that the Access Details shall only be used for purposes of purchasing Equipment and Services through the Website and shall not be disclosed to any third party or used for any other purpose. The Customer hereby indemnifies and holds the Provider harmless for any damages or losses resulting or arising from disclosure of the Access Details to any third party not authorised by us.
Our use and processing of your Access Details and other Personal Information supplied to us is governed by our Privacy Policy, accessible here www.telcables.ng. You agreed that you have read our Privacy Policy and consented to the use therefore.
The above clause limits your rights and remedies against the Provider, and this clause limits and excludes the Customer’s right to recover or make claims for losses, damages, liability or harm that the Customer may suffer. The Customer will also be responsible for, and accepts various risks, damages, harm and injury which may be suffered by the Customer. The above clause requires the Customer to indemnify the Provider and other persons or entities against claims, loss, damages, and harm that may be suffered by the Provider and other persons or entities as a result of the events set out in the above clause. The Customer is also required to indemnify the Customer and other persons and entities against claims for loss, damages, and harm that may be made by any person or entity as a result of the events set out in the above clause. This places various risks, liabilities, obligations and legal responsibilities on the Customer and the Customer will be responsible and liable for the payment of the value of the claims, loss, damages, and harm that may be suffered or claim.
Acceptable use of the Website
Customer may only use the Website for purposes of purchasing Equipment and/or Services from the Provider and for other lawful purposes (“the Permitted Use“).
Customer shall use the Services in accordance with: (i) all applicable legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency, or other relevant body; and (ii) the Provider’s Acceptable Use Policy (AUP) available on the website at www.telcables.ng and incorporated to this Agreement by reference. The Customer confirms to have read the AUP and fully understood same [which AUP the Customer hereby confirms to have read and fully understood, and which may be reviewed from time to time by the Provider upon notice to the Customer.
The Provider may, in its sole discretion, at any time and for any reason (including in circumstances of a breach of this Agreement by the Customer) and without prior written notice, suspend or terminate:
the operation of the Website; or
your right to use the Website.
The Customer shall be solely responsible for obtaining and maintaining all facilities, licenses, services, products and equipment, which may be required by the Customer for purposes of the Permitted Use.
The Website shall be subject to scheduled maintenance without any prior notice to the Customer. Where Customer requires any service or the implementation of an OF during the period of maintenance, please contact: geral.ng@telcables.net
Access Control
Password control
Good password practice is to ensure that passwords are a minimum of eight characters long and that passwords are not left as standard defaults or the same as the username. Names of family members, date of birth, car registration or any other name that could be easily accessed by another person should not be used. The Customer must take care to ensure that no-one, other than you, in in possession of your Access Details.
The Website allows the Customer three attempts to enter the password correctly. If this limit is exceeded, the Customer will be blocked from accessing the Website and will have to contact the Provider’s system administrator.
Customers will be reminded to change their passwords every thirty days and Customers must maintain the confidentiality of their Access Details when changing them.
Customer responsibilities
Customer sessions on unattended equipment should be terminated and the Customer’s failure to do so will be considered a breach of this Agreement.
The sharing of Access Details is strictly prohibited.
The Customer must adhere to the Provider’s information security and confidentiality requirements.
The Provider will monitor user activity and keep an audit trail of system usage and changes. The Provider will also conduct extemporaneous reviews of user activity to ensure compliance with this Agreement.
Customer’s Agreement to comply with this Agreement
When using the Website, you enter into a legal binding contract with the Provider upon the terms and conditions set out herein.
If you do not agree to any term or condition of this Agreement, any policies, or any subsequent changes thereto or become dissatisfied with the Provider or the Website, the Customer must notify the Provider in writing and the Provider will terminate your access to the Website.
This Agreement and the other policies and codes constitute the complete and exclusive understanding and agreement between the Customer and the Provider and govern the Customer’s use of the Website superseding all prior understanding, proposals, agreements, negotiations and discussions between the parties, whether written, oral or tacit.
This Agreement and any additional documents the Provider incorporates by reference shall apply to the Customer when the Customer uses any part of the Website.
This Agreement may be updated by the Provider at any time at our sole discretion. The Provider may send to the Customer notice of such changes to this Agreement. The Customer may choose to either accept the changes before they apply or to end the use of the Website & Service.
Customer behaviour when using the Website
The Customer shall only use the Website in accordance with the provisions of the Provider’s Acceptable Use Policy (AUP) available on the website at geral.ng@telcables.net and the provisions of clause 3 of this Agreement.
In addition, the Customer shall not and shall not allow a third party to:
decompile, dissemble or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming of the software forming part of the Website (the “Software“) or any files contained in or generated by the Software by any means whatever.
remove any produce identification, copyright or other notices, from the Software or documentation;
lend to a third party or use any portion of the Software (whether or not modified or incorporated with other software) on or with any machine or system other than the Customer’s hardware; or
disseminate performance information or analysis of the Software from any source relating to the Software.
SERVICE ORDERS.
To order any Service, the Customer must request it from the supplier by sending an e-mail to geral@telcables.net.
PROVISION OF SERVICE
Provider shall deliver the Services on a non-exclusive basis and the Customer shall purchase and utilize the Services as per the specifications described in the OF.
Subject to the terms of the applicable OF, following the execution of the Agreement, Provider shall proceed with the provisioning and implementation of the Services provided that: (i) It has received from the Customer, all necessary contractual documents and technical information, and support that it deems necessary for Service provisioning and implementation (including an OF duly signed by the Customer); and (ii) It has deemed Services provisioning technically feasible and has accepted the OF by executing same. Where the conditions above have not been met, Provider hereby reserves the right to cancel the provisioning of the Services prior to the Service Commencement Date upon providing notice thereof to the Customer.
Provider shall not be, or be deemed to be, responsible for any Services impairment or loss of functionality, or breach of any performance obligation under this Agreement where any failure, fault or delay in performance is directly or indirectly related to any failure by the Customer to comply with any obligation or provide any information agreed to be provided under this Agreement by the Customer.
TERM AND SERVICE COMMENCEMENT.
This Agreement shall commence upon acceptance of the terms of this Agreement by Provider by way of signature to the OF to which this Agreement is attached (“Effective Date”). Notwithstanding the Effective Date, the date of commencement of the Services shall be the Service Commencement Date or such other extension as may be agreed for the provision of the service or on such terms on the applicable tariff plan (in terms of tariff services).
Service installation and commencement of the Services is subject to the Provider fulfilling the following requirements after receiving a signed OF from the Customer:
conducting a final feasibility assessment to determine if the Services are capable of being provided, subject to the proviso that in the event that they are not, written notice of this may be given to the Customer.
subjecting the OF to its legal and credit departments’ vetting and approval; and
the installation of the necessary Equipment to provide the requested Service.
The term of this Agreement shall commence as of the Effective Date and shall continue in effect for the minimum period set out in an OF (the ” Term”). Upon expiry of the Term, this Agreement shall automatically renew for one (1) month at a time (each a “Renewal Term”) unless either Party notifies the other Party in writing that it desires to terminate this Agreement at least thirty (30) days in advance of the expiration of the Term or on thirty (30) days’ written notice during any Renewal Term.
SERVICES ACCEPTANCE.
The installation of the Services shall be deemed to be accepted by Customer within twenty-four (24) hours of the Notice of Completion. The Customer must notify the Provider in writing of any problems with the Services, within twenty-four (24) hours of the receiving the notification of completion, and such problems notified to the Provider during this period shall be rectified by the Provider at no additional cost.
PAYMENT TERMS.
Provider shall invoice all Service Charges in advance, except for charges that are dependent on usage, which shall be billed in arrears. Customer shall pay all amounts due to Provider in the manner designated by Provider within thirty (30) days from the date of invoice (the “Due Date”). Customer shall ensure that all payments are made free of bank charges.
All Service Charges, fees and expenses set out in the OF are exclusive of all applicable taxes and duties, which taxes and duties shall be payable by the Customer.
If Customer fails to pay any amount due by it in terms of this Agreement on or before the due date as reflected on an invoice provided to Customer by Provider, the Provider shall be entitled, in addition to its remedies at law and those arising from this Agreement, to charge interest at the Default Interest Rate. Such interest shall accrue from the day following the date payment of the amounts was due until the date such overdue amounts are paid in full, and such interest shall be payable as specified in an invoice.
Customer shall pay Provider a cancellation charge equal to the sum of fifty percent (50%) of the contracted Service Charges if Customer cancels a Service prior to Provider’s issuance of a Notice of Completion, and such cancellation must be given on prior written notice to Provider.
Customer’s right to cancel any particular Service under Section shall no longer apply upon Provider’s delivery of a Notice of Completion for such Service. In the event that Customer terminates the Agreement and/or any OF during the Term, Customer shall pay to Provider a termination charge equal to the Service Charges for the remainder of the Term, except if the termination is done in terms of Section .
Customer is responsible for all Service Charges incurred with respect to Service, even if incurred as the result of fraudulent or unauthorized use of Service; except Customer shall not be responsible for fraudulent or unauthorized use by Provider or its employees.
The Service Charges shall be subject to a review during the Term to give effect to a reasonable adjustment for increase in the cost to Provider for providing the Services to the Customer as a result of: statutory or regulatory changes directly affecting the Service Charges; a devaluation of the applicable currency by greater than 15% during the Term; and changes in operational costs.
Provider shall provide notice to the Customer of any proposed price review, which shall be subject to agreement by both Parties prior to implementation; provided always that the Parties shall be obligated to conclude and document such review within thirty (30) days of the notice referred to herein, being provided by the Provider.
SERVICE LEVELS.
Services levels for each Services will be specified in the relevant OF.
To report issues related to Service performance, Customer may contact Provider at the telephone number or email address, or online portal address provided by Provider to Customer from time-to-time. In order for Provider to investigate any reported issues, Customer agrees to provide Provider with supporting information as reasonably requested by Provider.
Where the Customer has reported an issue with the performance of a Service and Provider has proven the cause of such issue to be beyond the TELCABLES Network or the Service demarcation, Provider may charge Customer for any costs incurred in determining the cause of such issue at Provider’s standard professional services rates (including those of third-party subcontractors) which can be requested by Customer from Provider from time to time.
FORCE MAJEURE.
Provider shall not be held responsible for any delay or failure in performance of any of its obligations under this Agreement, to the extent such delay or failure is caused by a Force Majeure Event.
If a delay or failure referred to in Section occurs, the Provider shall be excused from further performance or observance of its obligation(s) so affected for as long as such circumstances prevail. If such Force Majeure Event endures for a period of more than 30 (thirty) days, either Party may terminate the affected OF and/or Agreement by written notice to the other.
CUSTOMER RESPONSIBILITIES.
Customer shall comply with Provider’s AUP available at geral.ng@telcables.net. Customer is solely responsible for ensuring that internal users make use of the Services lawfully and that Customer and its internal users comply with all applicable Laws, the terms of this Agreement (including any applicable OF) and the AUP.
Customer shall ensure that it has the necessary approval from its landlord for the installation of the Service at its premises. Where Customer is not able to obtain such approval from the landlord or fails to adhere to any other reasonable instruction issued by Provider, or where such approval is not obtained and instructions not complied with within a reasonable period of time, Provider may cancel the delivery of the Service and the provisions of Section 11.4 will apply.
Customer shall at its expense allow or secure Provider or its contractors access to the Customer Premises as soon as reasonably practicable for the installation, inspection and planned maintenance or emergency maintenance of Equipment relating to the Service. Customer will be responsible for providing and maintaining, at its own expense, the proper environment for the Equipment on the Customer Premises. Customer shall reimburse Provider for the actual cost of repairing or replacing any Equipment and/or any part of the TELCABLES Network damaged or destroyed as a result of Customer’s failure to comply with Provider’s instructions.
Where a Service terminates at the Customer Premises, the charges set forth in the OF assume the Service will terminate at a pre-established demarcation point within the Customer Premises. In the event that Provider determines that it is necessary to extend the demarcation point through the provision of additional infrastructure, cabling, electronics or other materials, Provider may pass through to Customer any actual cost incurred by Provider which is not otherwise set forth in the OF. Provider will notify Customer of any additional charges associated with the changed demarcation point as soon as practicable after Provider has determined the amount of such charges. Customer will have thirty-six (36) hours to accept such charges, if the additional charges are not accepted, the Services will terminate at the pre-established demarcation point and in such event, the Provider will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages (even if we have been advised of the possibility of such damages), resulting from the Services terminating at that pre-established demarcation point.
The above clause limits your rights and remedies against the Provider, and this clause limits and excludes the Customer’s right to recover or make claims for losses, damages, liability or harm that the Customer may suffer. The Customer will also be responsible for, and accepts, various risks, damages, harm and injury which it may suffer.
SERVICE MODIFICATIONS AND CHANGE CONTROL.
Customer may upgrade a Service at any point during the Term set out in an OF, by submitting to Provider an upgrade OF and subject to Provider’s acceptance of such upgrade OF. The term of the upgrade will be as set out in the applicable OF.
Downgrade of a Service will be deemed as a cancellation of the original OF as per Section above and a new OF will be required for the lower capacity.
Where a managed device is offered, the support is limited to the support offered by the device manufacturer to Provider. This includes both hardware and software support limitations.
Provider reserves the right to maintain full access control of equipment. Customer will have no access to equipment configuration and may not change or attempt to change the equipment configuration
All change requests, post Service acceptance, are subject to review and approval. Provider reserves the right to charge for change requests, should they be approved.
Unless agreed in writing, and subject to any additional charges, no modifications or changes requested by Customer to the Service will be done by Provider or its contractors outside of Standard Business Hours.
SITE MOVES.
Upon request from Customer, Provider will attempt to move the Service from the current Customer Premises to a new location, subject to accepted feasibility and required approvals at the new location within reasonable timeframes. Additional charges will apply for the move which charges will be notified to the Customer in writing as per Section below. Should the new location be deemed unfeasible, Customer may request early contract termination, which will be calculated as a termination charge equal to the Service Charges for the remainder of the Term as per Section above.
All Services are contracted per address as specified in the OF. Should Customer move premises before the Term expires, the Provider reserves the right to continue with charges, as indicated in the OF, regardless of the Customer’s change of address.
All moves requests require a ninety (90) day notice period and are subject to feasibility and both Parties’ approval.
EQUIPMENT.
All rights of ownership in and to any Equipment: (a) supplied by Provider to Customer on a loan or rental basis, shall remain vested in Provider; or (b) purchased by Customer from Provider, shall transfer to Customer upon receipt of full payment for such Equipment by Provider.
All risk in and to the Equipment shall pass to Customer on delivery thereof at the Customer Premises, and Customer shall be liable for any and all loss, theft or destruction of or damage of such Equipment.
In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after delivery of the Equipment, Customer shall be obliged to replace and/or repair or to pay to Provider the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
Customer undertakes:
to apply a degree of care no less than it would have if the Equipment belonged to it and shall take all reasonably necessary precautions to avoid loss, theft or destruction of or damage to the Equipment;
not, in any manner, alienate, encumber or otherwise dispose of the Equipment; and
not to procure repair or maintenance of the Equipment by any third party without the prior written consent of Provider.
Maintain relevant insurance cover from a reputable insurance company to address the identifiable risks and such insurance cover shall be provided to the Provider upon request.
LICENSING.
With effect from the Service Commencement Date, and in return for payment of the relevant charges for the duration of the Term, Provider grants to Customer a non-exclusive, non-transferable licence to permit the use of the Licensed Technology as provided and implemented by Provider pursuant to the OF. Customer acknowledges that its rights to permit use of any 3rd party software are further specified in the licence terms of the relevant supplier of such 3rd party software.
Customer shall not, and shall not permit, whether directly or indirectly, any third party, to-
modify, adapt, translate, reproduce, distribute, use, rent, lease, share, sell, assign, sub-license or otherwise transfer any part of the Licensed Technology;
remove, alter or conceal any proprietary notices or labels on the Licensed Technology; or
reverse assemble, decompile or reverse engineer any 3rd party of Provider Software, whether in whole or in part, or otherwise attempt to derive the source code of any 3rd party or Provider Software.
REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to other Party that (a) it is an entity duly incorporated under the Laws of the Federal Republic of Nigeria; (b) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action and this Agreement is valid, binding and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not violate, conflict with or constitute a breach of any Laws or any order of court or Governmental Authority.
Customer represents that it has necessary licences and authorisation to receive the service provided by the Provider.
Provider may suspend the Services if Provider suspects unlawful or prohibited conduct in relation to use of the Services, and Customer shall be responsible for all costs incurred by Provider in relation to such unlawful or prohibited conduct, which costs shall be payable by the Customer on demand.
If Customer fails to remedy its breach of any material term or condition of this Agreement and/or any OF within fifteen (15) days after receipt of notice from Provider of such breach, Customer shall be in default and Provider may, at its option, immediately and with no further notice: (a) terminate the Services and the corresponding OF; or (b) temporarily block or suspend such Services. It is a material term of this Agreement, that Section and , will apply to any termination or suspension contemplated in this Section .
Upon termination as described in Section , (a) Provider shall have no further duties or obligations hereunder and (b) Customer shall be liable for all Service Charges incurred as of the termination date as well as for the balance of all Service Charges that would have been paid until the end of Term of all of the terminated Services, as well as any costs and expenses incurred by Provider related to such termination of Services.
In the event that Provider suspends Services pursuant to the provisions of this Section 20, Customer may not cancel this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Provider, its employees, its agents or any other persons for whom it may be liable in law. Provider may claim, and Customer shall pay upon demand, a reasonable charge for re-commencing the provision of the Services (if applicable).
Without limiting or derogating from the further provisions of this Section 20, the Provider may also suspend the Services where:
the Provider is ordered to do so by a court of competent jurisdiction;
the suspension is necessary for the Provider to conduct maintenance; or
the Provider becomes aware of a potential threat to the proper operation or security of the Services.
failure to comply with the AUP
In the event that the Provider fails to meet the acceptable industry standards associated with the Service the Customer must notify the Provider in writing of its failure to achieve these standards in a consecutive two (2) month period. If the Provider fails to rectify the failure within fifteen (15) days of such notification the Customer may terminate the applicable OF.
INDEMNITY
As far as the law allows, the Customer agrees to defend, indemnify the Provider and hold its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agent, service providers, suppliers and employees harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from:
the Customer’s use of and access to the Website;
the Customer’s breach of any provision in this Agreement; and/or
a violation of any third party right, including without limitation any copyright, trademark, trade secret or other property, or privacy right.
The above clause requires you to indemnify the Provider and other persons or entities against claims, loss, damages, and harm that may be suffered by the Provider and other persons or entities as a result of the event set out in the above clauses. The Customer is also required to indemnify the Provider and other persons and entities against claims for loss, damages, and harm that may be made by any person or entity as a result of the events set out in the above clause. This places various risks, liabilities, obligations and legal responsibilities on the Customer and the Customer will be responsible and liable for the payment of the value of the claims, loss, damages, and harm that may be suffered or claimed.
LIMITATION OF LIABILITY AND DISCLAIMERS.
The Customer acknowledges and agrees that the Provider has no responsibility or liability for the usefulness, veracity and accuracy of information relayed through the Website (including the Data).
Except as expressly set forth in this Agreement or in any OF, and to the maximum extent permitted by law, Provider hereby disclaims any representations or warranties, express or implied, regarding the TELCABLES Network, Equipment and Services provided by Provider hereunder, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any implied warranties whatsoever. Further, Provider does not warrant that the information transmitted by or available to Customer by way of the Services: (a) will be preserved or sustained in its entirety; (b) will be delivered to all users; (c) will be free of inaccuracies or defects or bugs or viruses of any kind; or (d) will be secured against unauthorized access or monitoring by any third party.
To the maximum extent permitted by law, neither will Party be liable to the other for indirect, incidental, consequential or special damages, whether arising under this Agreement or otherwise (even if a Party has been advised of the possibility of such damages), such as, but not limited to, loss of revenue or business, costs of delay, costs of lost or damaged data or documentation or restoration costs, whether arising under contract or delict.
The Customer expressly acknowledges and agrees that its use of the Website is entirely at the Customer’s own risk and that the Website is provided without any warranties of any kind. All express and implied warranties, including, without limitation, the warranties of accuracy, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law. As far as the law allows, the Provider or its officers, directors, employees, and agents disclaim all warranties, express or implied, in connection with the Website and the Customer’s use thereof. The Provider makes no warranties or representations about the accuracy or completeness of the information relayed through the Website and assume on liability or responsibility for any:
errors, mistakes, or inaccuracies of the Data;
personal injury or property damage, of any nature whatsoever, resulting from the Customer’s access to and use of the Website;
any unauthorised access to or use of the Website;
any interruption or cessation or transmission to or from the Website. For the avoidance of doubt you acknowledge the function of the Website is dependent on the Customer’s internet service provider’s network and infrastructure;
any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Website by any third party; and/or
any errors or omission in any other information relayed or otherwise made available through the Website or for any loss or damage of any kind incurred as a result of the use of any other information relayed or otherwise made available through the Website.
Subject to Section , and to the maximum extent permitted by law, in no event shall Provider be liable to Customer for any losses or damages which constitute direct and/or general damages with respect to this Agreement, whether arising in contract or delict, for any amounts in excess of the total amount paid or payable for the prior (6) month period by Customer under this Agreement for all Services.
The above clauses limit your rights and remedies against the Provider, and these clauses limit and excludes the Customer’s right to recover or make claims for losses, damages, liability or harm that the Customer may suffer. The Customer will also be responsible for, and accepts, various risks. damages, harm and injury which may be suffered by the Customer.
GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION.
This Agreement shall be governed by and construed in accordance with the Laws of the Federal Republic of Nigeria.
The Parties shall endeavour to settle amicably, prior to taking any other legal actions, by mutual discussions, any disputes or claims related to this Agreement (“Dispute”). An aggrieved Party shall provide a written notice to the other Party of its intention to engage in formal discussions to resolve the dispute. Any Dispute which arises shall be referred to a committee consisting of two (2) members appointed by the Customer and two (2) members appointed by Provider, who will use their best efforts to resolve the Dispute within fourteen (14) days of the Dispute having been referred to them.
In the event the committee members are unable to resolve the dispute within such fourteen (14) days period, either Party may provide written notice to the other Party requesting escalation of the dispute to the Parties’ next appropriate level of management (“Senior Management”). The Parties will in good faith schedule a meeting of Senior Management within ten (10) days from such notice. Senior Management will meet to discuss the matter and will endeavour, in good faith, to settle the dispute within fifteen (15) days from the meeting.
If the Parties’ Senior Management are not able to resolve the dispute within fifteen (15) days from the date upon which the meeting was held and unless otherwise agreed upon, either Party shall seek relief in a court of competent jurisdiction in order to protect its rights.
Any notices, including a demand for arbitration shall be deemed served when delivered to the address indicated in Section 4 below.
Each notice, demand, certification or other communication made in connection with this Agreement shall be in writing and shall be delivered by hand or sent by registered mail or by electronic mail to the address of the respective Party as shown below (or such other address as may be designated in writing to the other Party, with such address becoming effective 5 (five) business days after receipt of the notice of the change.)
If to Provider:
TELCABLES (Pty) Ltd.
Address: 3rd Floor, DUKKA, 42 Saka Tinubu Street, Victoria Island, Lagos, Nigeria.
Address for
Communications/Notifications: 3rd Floor, DUKKA, 42 Saka Tinubu Street, Victoria Island, Lagos, Nigeria.
Attention:
The Director
Email: Fernando.fernandes@telcables.net
If to Customer:
Customer details as set out in an OF.
Any notice, demand or other written communication shall be deemed to have been duly given:
5 Business Days after posting (14 Business Days if the address is not in the Federal Republic of Nigeria), if posted by registered post (airmail, if available) to the other Party’s postal address;
on delivery, if delivered to the other Party’s physical address between 08h30 and 17h00 on a Business Day (or on the first Business Day after that if delivered outside such hours);
on dispatch, if sent to the Party’s email address between 08h30 and 17h00 on a Business Day (or on the first Business Day after that if dispatched outside such hours),
unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
COMPLIANCE.
Both Parties shall comply with the provisions of all applicable laws and regulations at such party’s expense, of all licenses, permits, certificates or other approvals and the requirements of different industry standards applicable to the performance of the Services.
Subject to the provisions of the Nigerian Communications Commission Lawful Interception of Communications Regulations 2019 (the Regulation), Cybercrime (Prohibition, Prevention etc) Act 2015 and other applicable regulations, the Customer acknowledges Provider’s obligations, and undertakes to comply with its own obligations as provided for in the Regulation and other applicable regulations.
Whilst the Provider undertakes to comply with the principles of the Data Protection Legislations, the Customer hereby consents to the collection, processing, transfer and storing of its personal information in the course of the performance of this Agreement. Provider’s Privacy Policy is accessible at geral.ng@telcables.net
Both Parties warrant that they shall not make, in or for this Agreement any payments, loans, gifts, promises or offers of payments, loans, gifts of any money or anything of value, directly or indirectly, (i) to or for the use or benefit of any official or employee of any government or an agency or instrumentality of any such government, (ii) to any personnel, agents, consultants or other persons engaged, (iii) to any political party or official or candidate thereof, (iv) to any other person if the party making or offering such payments, loans, gifts or promises or offers knows or has reason to know that any such payment, loan, or gift will be directly or indirectly given or paid to any governmental official or employee or political party or candidate or official thereof, or (v) to any other person or any entity, the undertaking, commitment, provision, payment or other execution of which would violate the laws or regulations of any country in which this Agreement is to be performed.
By using the Website, the Customer agrees that this Agreement creates a binding contract between the Customer and the Provider. The Customer agrees specifically that:
the contact will be treated as if it was concluded at our physical address on the date on which you first made any use of the Website;
an electronic signature is not required by you or us for purposes of agreeing to this Agreement;
the Customer’s use of the Website is sufficient evidence of the Customer’s agreement to this Agreement;
any data message sent by either the Customer or the Provider to the other will be deemed to have been sent from that Party’s physical address if neither Party’s usual place of business nor residence is located within the Federal Republic of Nigeria;
subject to the further provisions of this Agreement, any communication sent to the Customer by any information system programmed to operate automatically on the Provider’s behalf will be a data message attributable to, or authorised by the Provider; and
subject to the further provisions of this Agreement, a data message sent by the Customer to the Provider will only be treated as having been received by the Provider when an acknowledgement of receipt is sent by the Provider personally or a person who had authority to act on the Provider’s behalf in respect of that data message.
Unless the context provides otherwise or it is expressly stated to the contrary, if this Agreement or the Website are regulated by or subject to the Federal Competition and Consumer Protection Act, 2019 (the “FCCPA“) and the Nigerian Communications Commission – Consumer Code of Practice, it is not intended that any provision of these Agreements contravene any provision of the FCCPA. Therefore all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure that the provisions of the FCCPA are complied with. Any mandatory industry code, required of the Provider shall be incorporated by reference to this Agreement when such is published.
No provision of this Agreement limits or excludes any warranties or obligations which are implied into this Agreement by any applicable law to the extent that the law does not allow them to be limited or excluded including the application of the FCCPA to consumers as defined.
The Provider will implement measures to ensure the security of the TELCABLES Network and the physical security of its premises, but gives no warranty that no:
breach of security will take place;
unauthorized person will obtain access to the TELCABLES Network and/or its physical premises (each a “Security Violation”).
If the Customer discovers a Security Violation, or if there are reasonable grounds to believe that a Security Violation has or will occur, it must immediately notify the Provider.
To the maximum extent permitted by law, the Provider is not liable for any loss, claim or harm suffered by the Customer directly or indirectly related to a Security Violation.
The above clause limits your rights and remedies against the Provider, and these clauses limit and exclude the Customer’s right to recover or make claims for losses, damages, liability or harm that the Customer may suffer. The Customer will also be responsible for, and accepts, various risks, damages, harm and injury which may be suffered by the Customer.
The Customer must not do anything that may prejudice the security of the TELCABLES Network, and must take all reasonable measures necessary to ensure that no Security Violation occurs, include taking reasonable measures to ensure that:
no unlawful access is gained to the TELCABLES Network or the Provider’s premises;
no malicious code is introduced into the TELCABLES Network; and
any Internet Protocol (“IP”) address range assigned to the Customer cannot be attacked by third parties.
If a Security Violation occurs, or the Provider is of the view that there are reasonable grounds to believe that a Security Violation has or will occur, the Provider may take whatever steps it considers necessary to maintain the proper functioning of the TELCABLES Network including without limitation:
changing the Customer’s access codes and passwords (or those of any user of the TELCABLES Network).
suspending the Services; and/or
preventing access to the TELCABLES Network.
The Customer must give its full cooperation to the Provider in any investigation that may be carried out by the Provider regarding a Security Violation.
If the Customer is providing any service to third parties that makes use of the TELCABLES Network, the Customer must contractually bind those third parties to equivalent terms regarding security as are set out in this Section .
MISCELLANEOUS.
In the event that any tariffs are filed with a Governmental Authority regarding any Services ordered by Customer, then (to the extent such provisions are not inconsistent with the terms of a OF) the terms set forth in the applicable tariff shall govern Provider’s delivery of, and Customer’s consumption or use of, such Service.
This Agreement shall not be ceded or assigned by either Party without the written consent of the other Party, which shall not be unreasonably withheld or delayed, except that no such consent shall be required in case of an assignment of this Agreement as a whole as part of a merger or sale of all or substantially all of the other Party’s assets. Any cession, assignment, transfer or other disposition by Customer in violation of this Section 27 shall be null void and of no force and effect. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Notwithstanding any assignment by the Customer, the Customer shall remain liable for the payment of all Service Charges due under each OF.
Any provision of this Agreement which by its context is intended to apply after termination of this Agreement shall survive its termination.
During the performance of this Agreement, it may be necessary for Provider to transfer, process and store billing and utilization data and other data necessary for Provider’s operation of the TELCABLES Network and for the performance of its obligations under this Agreement. Customer hereby consents to Provider’s (a) transfer, storage and processing of such data; and (b) use of such data for its own internal purposes and as allowed by law. This data will not be disclosed to third parties.
Each Party agrees to keep confidential any information which is by its nature constitutes confidential information and shall not disclose such information without the other Party’s written consent.
Each Party shall retain ownership of its intellectual property rights. Neither Party shall have the right to use the other Party’s intellectual property, including trademarks, service marks or trade names.
This Agreement constitutes the entire understanding of the Parties related to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between Provider and Customer are hereby superseded insofar as they relate to the Services being provided hereunder.
This Agreement may be amended by Provider from time to time. The latest applicable version will be published on the TELCABLES website.
No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by that Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
If any provision of this Agreement shall be held to be invalid or unenforceable, it shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect and Provider and Customer shall promptly negotiate a replacement.
This Agreement is for the sole benefit of the Parties. Nothing expressed or implied in this Agreement shall give, or be construed to give, any person other than the Parties themselves any legal remedies or causes of action hereunder or in respect hereof.
The headings of Sections in this Agreement are for convenience and reference only and are not intended to restrict, affect or influence the interpretation or construction of provisions in any Section.
No amendment, variation or modification of the terms and conditions of this Agreement and OF shall be valid unless such amendment, variation or modification has been countersigned by both Parties
