Vanilla sells access to the Internet and associated infrastructure services on a subscription basis, which access is exercised via a permanent or temporary connection by the subscriber using a pre-configured or self-configured login ID and password.
The subscriber wishes to gain access to the Internet by means of a Vanilla network on the terms and conditions contained in this agreement.
Interpretation In this agreement:
"commencement date" means the date on which Vanilla provides the subscriber with service or access;
"login ID" means the username, word, device, IP number/s, sign or combination of words, devices or signs given by Vanilla to the subscriber which, when keyed in by the subscriber or support personnel, will entitle the subscriber to gain access to the Vanilla network;
"services" means the services to be provided by Vanilla in terms of this agreement, as selected by the subscriber in the subscription order form, website or call;
"subscription charges" mean the charges payable to Vanilla in terms of clause 7;
"Vanilla" means Vanilla Internet services provided by Future Perfect Corporation cc, registration number 2001/025644/23, 125 Buitengracht Street, Cape Town.
"Vanilla network" means the Vanilla network of services (including all hosted services and applications as well as upstream network providers - SAIX, IS, MTN, RSA Web, Frogfoot, Web Africa, MWEB, LBSD, Mindspring, etc.) which, when the subscriber's personal (or personnels') computer is connected thereto, will give the subscriber access to the Internet;
"Vanilla website" means the file or collection of files established by Vanilla and accessible on the Internet by means of the URL: http://www.vanilla.co.za;
"URL" means Uniform Resource Locator.
Conclusion of this agreement
This agreement will only come into force between Vanilla and the subscriber, once Vanilla has provided the service and the subscriber has agreed to make use of the services (ie. signed the terms and conditions contained herein - either by hand, telephone call or by electronic signature) or, where this agreement is being entered into by means of an electronic subscription, after the subscriber has clicked on the button that submits ordering information or by telephone or face to face, indicates his or her acceptance to the standard terms and conditions of subscription, and Vanilla has advised the subscriber in writing that the subscriber's subscription order has been accepted and service provided by Vanilla.
Vanilla, with effect from the commencement date, hereby grants to the subscriber the use of the Vanilla network to gain entry to the Internet and/or infrastructure services for use of Internet applications, on the terms and conditions set out herein.
Provision of services
With effect from the commencement date, and for the duration of this agreement, Vanilla shall use its best endeavors to make available to the subscriber continuous, uninterrupted, and error free services to the subscriber, subject to the terms and conditions set out herein.
Notwithstanding the provisions of clause 5.1, the subscriber acknowledges that in the normal course of the provision of services, temporary interruptions may occur for which Vanilla shall not be liable for any damages of any kind, provided that Vanilla uses its best endeavors to comply with the provisions of clause 6.
The subscriber shall be solely responsible for provisioning, configuring and maintaining all equipment which may be required in order for the subscriber to receive the services offered by Vanilla in terms hereof, including, without limitation, all computer hardware equipment, telecommunication equipment and modems which may be necessary and required by the subscriber to exercise its rights and enjoy the services provided herein.
The subscriber acknowledges that any provisional commencement date furnished by Vanilla shall be provisional only and, should installation or connection, as the case may be, not be effected by such provisional date:
the subscriber shall not be entitled, as a result of such delay, to terminate this agreement or withhold any payment; and
Vanilla shall not be responsible for any consequences of such delay or be liable for any damages, costs or expenses whatsoever incurred or suffered by the subscriber or any third party.
Vanilla may from time to time and without notice to the subscriber be entitled to suspend the services in the event of any of the following:
a technical failure, modification or maintenance either of the services or the equipment by means of which the services are provided;
if the subscriber:
fails to comply with any of the terms and conditions of this agreement; or
does or allow to be done anything, in Vanilla's reasonable opinion, may have the effect of negatively affecting the operation or the Vanilla network, the provision of services to the subscriber or to any other subscriber of Vanilla, or Vanilla's reputation.
Notwithstanding any suspension of the services in terms of clause 5.5 above, the subscriber shall remain liable for all charges due hereunder throughout the period of the suspension, unless Vanilla, in its sole discretion, should determine otherwise.
Vanilla reserves the right and shall be entitled to alter any name, code, number or log-in ID allocated by Vanilla for use in regard to the services, and the subscriber hereby indemnifies Vanilla against any loss or liability which may arise from such alterations.
The customer acknowledges that it is aware of the limitations of the services to be provided herein and that service quality and coverage is dependent on the Vanilla network and the infrastructure of its network providers and Telkom, and that services may from time to time be adversely affected by a number of different causes.
The subscriber acknowledges that, inasmuch as the services to be provided by Vanilla herein are provided on a "no frills" basis, Vanilla shall only be required to provide online support to the subscriber.
In the event that the subscriber may encounter a problem in the provision of the services by Vanilla or with its Internet related services in general, Vanilla shall use its reasonable endeavors to ensure that the subscriber may:
obtain information in regard to the current network status and the anticipated recovery time of such problem, by means of a "current network status" report which shall be accessible by means of the Vanilla website;
call Vanilla during office hours on 021 4882800 or alternatively call our tech support phone on 081 31 000 32; weekdays 6pm - 9pm and weekends 9am - 5pm;
send an e-mail message to Vanilla at email@example.com where suitably qualified Vanilla personnel shall use reasonable endeavors to render such online support services to the subscriber pertaining to the identification and, if possible, solution of problems encountered by the subscriber in the provision of the services.
Vanilla does not give any warranty, guarantee or any other similar undertaking that it will be able to solve or rectify all or any of the problems identified in 6.2 above.
The subscriber shall pay to Vanilla the subscription charges set out in the subscription order form, and all other charges which may be due to Vanilla in terms of this agreement.
Vanilla shall be entitled to elect to increase or decrease the subscription charges, or any portion thereof in the event that:
any increase by S.A. Telkom Limited ("Telkom") of its tariffs, fees or charges, increases the cost to Vanilla of the provision of the services to the subscriber, in which case the additional cost of such provision of the services shall be passed on to the subscriber who shall be liable to pay the increased subscription charges; or
should Vanilla in its sole discretion elect to increase or decrease such rates, provided that Vanilla shall give the subscriber 30 (thirty) days notice of any such increase or decrease in the subscription charges. The adjustments in such amended subscription charges shall take effect on the date of expiry of the written notice, and the subscriber shall be bound to pay such amended subscription charges.
The subscription charge in respect of the first month of this agreement shall be payable by the subscriber to Vanilla on or before the commencement date, where after the monthly subscription charges shall be payable on or before the first day of each subsequent month.
In the event that the subscriber has selected in the subscription order form to pay the monthly subscription charges by means of a monthly direct debit order (drawn against the subscriber's current banking account, the details of which are specified in the subscription order form) in favor of Vanilla, the subscriber shall sign all forms and do all such things that may be necessary to ensure that the monthly subscription charges are received in Vanilla's bank account on or before the due date for such payment. The subscriber further agrees that, by furnishing his or her bank details, he or she consents to Vanilla deducting the amount of the monthly subscription charges, and all other charges which may become due to Vanilla under this agreement, from the account so specified.
In the event that the subscriber has selected in the subscription order form to make payment of the monthly subscription charges by means of any other method of payment, the subscriber shall ensure that payment of such monthly subscription charges have been received by Vanilla at 125 Buitengracht St, 5th floor, Cape Town, on or before the first day of each month of this agreement.
In the event that the subscriber fails to pay any amount which may become due by the subscriber to Vanilla in terms of this agreement on the due date of such payment, then, without prejudice to any of the rights which Vanilla may have, Vanilla shall be entitled to take all such further steps, without notice to the subscriber, as may be necessary to recover such monies from the subscriber, and/or to suspend the services until such time as the subscriber has fulfilled his or her obligation in terms of this agreement, or to terminate this agreement in accordance with clause 14.1.1.
The subscription charges set out herein, and all other payments due in terms hereof, shall be paid free of exchange or bank charges, and without deduction or set-off.
The subscriber shall not be entitled during the currency of this agreement to withhold payment of any amount due to Vanilla in terms hereof, by reason of any alleged breach by Vanilla. Furthermore, the subscriber shall not be entitled to any set-off, discount, refund, reduction, or any other credit in respect of any unavailability of the services.
The subscriber shall, on demand, pay to Vanilla all costs and expenses incurred by Vanilla in enforcing any term of this agreement, including without limitation any bank charges and all legal charges on an attorney and own client basis.
In the event that the subscriber's bank dishonours any payment offered by the subscriber to Vanilla, Vanilla shall be entitled to claim from the subscriber, over and above the dishonoured payment, as well as all bank charges and other legal charges in regard thereto, a reasonable administration fee, which the customer shall be liable to pay to Vanilla on demand.
The parties expressly recognise that it is impossible to maintain complete security in respect of information provided, or transactions concluded, on the Internet.
In order to ensure the security and reliable operation of the Vanilla network to all subscribers, Vanilla hereby reserves the right to take whatever action Vanilla may deem appropriate in order to preserve the security and reliability of the Vanilla network.
The subscriber acknowledges that he or she is prohibited from utilising Vanilla's services to compromise the security of or to tamper with the Vanilla network, or any information contained on the Vanilla network or any computer utilised by Vanilla, or any other person.
In October 2013 Vanilla joined the iCode program and committed to continue to educate customers regarding self-protecting themselves online, detecting abnormal traffic patterns, sending and passing on notifications that relate to potential exploits, and direct actions such as pro-active outbound emails and telephone calls, password updates, etc. For more information see the iCode website at http://icode.org.za.
The subscriber undertakes to conform to generally acceptable Internet etiquette and to abide by Vanilla's operating policies, which may be amended from time to time at Vanilla's sole discretion, (and the subscriber hereby indemnifies Vanilla, and holds Vanilla free from liability, in respect of any loss or damage of whatever nature caused as a result of any breach of such undertaking) which policies include but are not limited to the guidelines set out below:
not to engage in any abuse of e-mail or spamming, including but not limited to, the posting or cross-posting of unsolicited articles with the same message (or substantially the same message) to more than 5 (five) or newsgroup recipients that did not request to receive such messages;
not to post or transmit any message, data, image or program which is defamatory, or violates any other personality rights;
not to post or transmit any message, data, image or program which is offensive, threatening, abusive, harassing, harmful or hateful;
not to transmit, distribute or store any material in violation of any applicable law or regulation, including without limitation material protected by copyright, trade mark, trade secret or any other intellectual property rights;
not to post or transmit any message, data, image or program which violates the intellectual property rights of others;
not to interfere with use of the Internet by any other Vanilla subscribers or other users;
not to post or transmit any file which contains viruses or any other destructive features, regardless of whether or not damage is intended by the subscriber;
not to cancel Usenet post other than the subscriber's own;
not to send unsolicited mail messages, including, without limitation, Make-Money-Fast schemes, chain letters, commercial advertising and informational announcements, nor to repeatedly post gratuitous off the topic postings;
not to gather e-mail addresses and/or names for commercial, political, charity or like purposes;
not to violate the privacy of any person or to violate the security of any system or network, which shall include but shall not be limited to:
unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network, or to breach security or authentication measures without express authorisation of the owner of such system or network;
unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of such system or network;
not to violate any law, regulation or tariff that may be in force in South Africa or elsewhere. In this regard, the subscriber undertakes to familiarise himself or herself with, and ensure that he or she is kept continuously aware of, any amendments to such laws, regulations or tariffs which may be in force from time to time and which may have any bearing on the subscriber's access to, or use of, the Internet;
not to perform any act or omission which is generally unacceptable or offensive to Internet users in general, to the public at large or as may be determined by Vanilla from time to time in its sole and absolute discretion, including but not limited to the hosting or transmitting of pornographic material;
not to contravene any Vanilla policy, as may be updated and published or accessible from the Vanilla website from time to time;
not to do anything which tends, has the effect of, or is likely to have the effect of, damaging the name or reputation of Vanilla, its holding company, subsidiaries or any affiliates;
not to commit any act or omission which may have an adverse technical effect on the integrity or functionality of the Vanilla network;
not to resell or make available to third parties, in any manner whatsoever and whether directly or indirectly, all or any part of the services provided to it by Vanilla, without Vanilla's prior written consent;
not to give or make available in any way his or her log-in ID to any other person not to give or make available in any way his or her log-in ID to any other person for such person's use, and undertakes to take whatever steps may be necessary to ensure the safe-keeping and confidentiality of such log-in codes and passwords which may be furnished by Vanilla for use by the subscriber, and shall specifically not disclose same to any third party without Vanilla's prior written consent;
not to use his or her log-in ID for any simultaneous log-in, nor to permit any other person access to, or use of, such log-in ID;
not to contravene or violate in any way the policy rules and guidelines posted from time to time as found at URL: http://www.saix.net/accept.html
In the event that the subscriber should engage in any one or more of the practices contemplated in 9.1, which shall be determined in Vanilla's sole discretion and which decision shall be final, then Vanilla shall be entitled to, without prejudice to its rights:
terminate, without notice, the subscriber's account and/or access to the services;
bill the subscriber for any costs incurred by Vanilla, including, but not limited to, bandwidth, administration costs, downtime, usage of Vanilla's name or registered domain names, and CPU cycles; and
notify all persons who received any offending spam or content, who were adversely affected by such practice of the personal and public information of the subscriber; and
remove any offending content from any servers or hosted services under our control; and
in the event that any such practice has an adverse technical effect on the Vanilla network, to require the subscriber to take such steps as may be necessary to rectify the situation at his or her own cost and expense; and/or
terminate this agreement in accordance with clause 14.1.1.
Notwithstanding anything to the contrary, contained in this agreement, Vanilla shall not be liable to the subscriber or to any other person in respect of any loss or damage of whatsoever nature caused by or arising from any of the following circumstances, and the subscriber hereby indemnifies Vanilla against any claims in respect of such loss or damage:
any fact or circumstance beyond the reasonable control of Vanilla;
any breakdown in any of the services provided by Telkom (including, but not limited to a line failure);
the performance or unavailability of the Vanilla network, or any other communications network to which the Vanilla network or the subscriber's personal computer is connected;
any technical failure in the services provided by Vanilla, or a suspension or interruption in performance of any of Vanilla's obligations in terms of this agreement, has a direct or indirect result of any technical problems, including but not limited to denial of access to any website or information contained on the Internet;
any breach of privacy or security by any person or entity affected by means of the Vanilla network or any other communications network to which it may be connected;
the loss, damage, destruction, theft, contamination or corruption of any data, information or content accessible by means of the Vanilla network;
the preservation and integrity of any text or any other form of data, information or content which is accessible by means of the Internet;
any publication or use of any information or data contained on the Internet;
the subscriber's use of the service, or access to the Internet;
its failure to perform its obligations in terms of this agreement, including but not limited to its failure to comply with any guideline set out in clause 9.
Without limiting the generality of the a foregoing, Vanilla shall not be liable for any consequential or incidental loss suffered by the subscriber or any other person, and the subscriber hereby indemnifies and holds Vanilla harmless against any such claim or liability, including but not limited to loss of profits, loss of anticipated business or goodwill.
The subscriber expressly recognises that Vanilla does not operate, control or endorse any information, products or service offered or accessible by means of the Internet, and that any entity that does offer or provide such information, products or services, is not in any way affiliated with Vanilla. Vanilla further does not act as an agent of such entity, not does Vanilla provide any express or implied warranties or endorsements to the subscriber or any other person whatsoever in respect of such information, products or services. In particular, Vanilla disclaims any liability for and the subscriber hereby indemnifies Vanilla against, any claim or liability which may arise from any information, products or services advertising for sale, associated with or displayed on Vanilla's website or accessible by means of the Vanilla network.
Should the subscriber be in default of any payment due in terms of this agreement or fail to observe and perform any of the other terms, conditions or obligations of this agreement, then Vanilla shall be entitled, but not obliged, in its sole discretion and without prejudice to any of its rights that it may have in law, including the right to claim damages, without notice, to do the following:
claim immediate payment of all amounts payable in terms of this agreement, whether or not such amounts are due; and/or
immediately suspend the services provided for in this agreement until such time that all such outstanding amounts have been paid; and/or
immediately terminate this agreement in accordance with clause 14.1.1.
Certificate of indebtedness
The amount of the subscriber's indebtedness to Vanilla and the fact that such indebtedness is due and payable shall be determined and proved by a certificate signed by Vanilla (or by one of Vanilla's directors, whose appointment, qualification and authority need not be proved).
The certificate shall be binding on the subscriber, be prima facie of the amount due, owing and payable by the subscriber to Vanilla and shall be deemed to be a liquid document for the purpose of obtaining provisional sentence and/or any other judgment against the subscriber.
By ordering from Vanilla the subscriber acknowledges, agrees and consents to us using your information for the following - not limited to - purposes: Record, process and continuously maintain and update related consumer credit information; create, update and monitor credit record/s; statistical analysis, validate and verify information on your credit record, at our discretion, against any relevant source and distribute Vanilla marketing material occasionally;
Cession and delegation
The subscriber shall not cede any of his/her rights nor delegate any of his/her obligations hereunder.
Vanilla shall be entitled to cede and transfer or delegate to any third party at its absolute discretion all or any of its rights or obligations under this agreement.
This agreement may be terminated:
forthwith by Vanilla in terms of clause 7.2.6 or clause 11.4; or
by either party on the giving of 1 (one) calendar month's written notice.
On termination of this agreement for any reason whatsoever:
Vanilla will not be required to refund to the subscriber any pre-payments which may have been made to Vanilla prior to the date of termination;
all outstanding balances shall be valid and shall require to be settled by the subscriber within 30 (thirty) days of the termination date of the agreement;
Vanilla shall be entitled to recover all bank charges and legal costs including all costs on the attorney and own client scale.
Vanilla shall be entitled to publish on the Vanilla and/or subscribers web site and email that the subscriber has defaulted and has not paid their debt.
Domicilium and notices
The subscriber hereby chooses domicilium citandi et executandi ("domicilium") for the purposes of giving any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement at the physical address specified in the subscription order form.
The subscriber shall be entitled from time to time on written notice to Vanilla to vary its domicilium to any other address within the Republic of South Africa, which is not a post office box or poste restante;
Any notice required or permitted to be given in terms of this agreement shall be valid and effective only if in writing;
Any notice given and any payment made by one party to the others ("the addressee") which -
is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery;
is given by fax (or email) shall be deemed to have been received on the first business day following transmission in which regard "business day" means any day of the week except a Saturday, Sunday or public holidays.
The parties acknowledge and agree that this agreement sets out the whole of the agreement between them and that there are no other agreements, guarantees or representations, either verbal or in writing, in regard thereto upon which any party is relying in concluding this agreement.
No variation of this agreement shall be binding unless recorded in writing and signed by the parties.
No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
No extension of time or indulgence which either party ("the grantor") may grant to the other ("the grantee") shall constitute a waiver of any of the rights of the grantor, who shall not thereby by precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
The subscriber hereby irrevocably consents to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by Vanilla arising out of this agreement, provided that Vanilla shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the subscriber consents to the jurisdiction of the said court.
This agreement shall be governed by and interpreted according to the laws of the Republic of South Africa and, in the event of any conflict between or inconsistency in the laws applicable in the various provinces of the Republic of South Africa, the law as applied and interpreted in the Province of the Western Cape shall prevail.
Take down notice
In terms of section 75 of the Electronic Communications and Transactions Act ("the Act") Vanilla has designated the Internet Service Providers' Association (ISPA) as an agent to receive notifications of infringements as defined in Section 77 of the Act.
Internet Service Providers' Association (ISPA)
Address: PO Box 518
Telephone: 010 500 1200