Xstream Connect and its affiliates (collectively “Xstream Connect” or “we”) may lawfully process your personal data on the basis of Xstream Connect “legitimate interests”.
“Legitimate interests” means the interests of Xstream Connect which are necessary to conduct and manage its business including for the purpose of improving our solutions and services for your benefit.
When we process your personal data for our “legitimate interests”, we consider and balance any potential impact on you and your rights under data protection laws against our “legitimate interests.” We will not process your personal data for any activities where the potential impact on you and your rights under data protection laws override our “legitimate interests” (unless you have consented or we are required to do so by law).
We will process your personal data for the sole purpose of sending you client satisfaction surveys as part of our Voice of our Client program, in order to obtain your feedback in relation to our solutions and services, for the “legitimate interest” of assisting us to improve our solutions and services. We will share your personal data with third-party providers engaged by Xstream Connect for the sole purpose of enabling them to send you client satisfaction surveys.
You have the right to object to this processing. Please be aware that if you object to the processing of your personal data, we may be unable to obtain and act on any feedback you provide to us.
If you have any questions about how your personal data is processed by Xstream Connect, you have a privacy concern or you wish to make a request or a complaint, please contact us using the contact details below:Email: email@example.com
Post: Xstream Connect
18 Clulee Road,
Xstream Connect general terms and conditions
1. Defined terms
1.1 The following expressions shall bear the meanings assigned to them below and related expressions shall bear corresponding meanings:
1.1.1 “Agreement” means these terms and conditions, as amended from time to time;
1.1.2 “New User Signup form” means the signup form on the Website which the Customer is required to complete and submit in order to make use of the Service/s;
1.2 “Confidential Information” includes, but is not limited to
1.2.1 clients and business associates of Xstream Connect;
1.2.2 the contractual arrangements between Xstream Connect, its suppliers, business associates, clients, agents and employees;
1.2.3 the financial details of Xstream Connects relationships with its suppliers, business associates, clients, agents and employees;
1.2.4 prospective clients of Xstream Connect and their requirements;
1.2.5 Xstream Connects financial structure, operating results, financial statements and income tax returns;
1.2.6 the remuneration paid by Xstream Connect to its various employees and their duties;
1.2.7 management know-how, processes and techniques;
1.2.8 other matters which relate to the business of Xstream Connect, which information is not readily available in the ordinary course of business to a competitor of Xstream Connect;
1.3 “Content” means all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which the Customer or Users may have access to as part of, or through their use of, the Service/s;
1.4 “Costs” means the fees and charges payable for the Service/s from time to time;
1.5 “CPA” means the Consumer Protection Act No. 68 of 2008, as amended from time to time;
1.6 “Customer” means the Party specified as Customer on the New User Signup form which these terms and conditions apply to;
1.7 “ECT” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;
1.8 “Effective Date” means the date on which the Customer accepted the Agreement, be that in writing or by way of electronic medium such as clicking on “I agree” on the web page or telephonic acceptance;
1.9 “Equipment” means equipment supplied by Xstream Connect to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilise the Services;
1.10 Xstream Connect (Pty)Ltd (company registration number 2017/190186/07
1.11 Xstream Connects’ Associates” means officers, servants, agents or contractors or other persons in respect of whose actions Xstream Connect may be held to be vicariously liable;
1.12 “Intellectual Property” means, collectively, the patents, copyrights (and moral rights), trademarks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, know-how, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same);
1.13 “Intellectual Property Rights” means rights in Intellectual Property which are recognised and/or protected by South African Law;
1.15 “Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees, whether on the scale as between attorney and own client or otherwise, tracing and collection charges, costs of investigation, interest and penalties);
1.16 “Monthly Costs” means the monthly fee payable by the Customer to Xstream Connect in consideration for the provision of the Service/s;
1.17 “Once Off Costs” means the once off initial costs charged to the Customer for the set up and/or installation of the Software, Equipment and/or Services;
1.18 “Parties” means the Parties to these Standard Terms and Conditions and “Party” means any one of them as the context may indicate;
1.20 “Proprietary Information” means any and all trade secrets and data/information of a proprietary and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential;
1.22 “RIC” means Regulation of Interception of Communications and Provision of Communication Related Information No. 70 of 2002, as amended from time to time;
1.23 “Service/s” means all the service/s provided by Xstream Connect to the Customer, including all software and Equipment necessary for the provision of the Service/s;
1.24 “Software” means any computer program or software installed or provided by Xstream Connect for the purposes of using the Services;
1.25 “South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to the Constitution of the Republic of South Africa, the ECT, CPA or any other legislative enactment or regulation in force from time to time applicable codes of conduct, as may be promulgated or amended from time to time;
1.26 “Third Party Websites” means websites other than the Website;
1.27 “use” when used in the context of:
1.27.1 the Service/s, means to visit or load the Website in a web browser, mobile phone or similar software application or device and access or otherwise engage with the Service/s;
1.27.2 Content, means to copy, download, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate such content;
1.28 “User” means a person who is authorised by the Customer to make use of the Service/s the Customer has elected to make use of in terms of this Agreement, alternatively, anyone who registers with and uses the Service/s under the auspices of the Customer (“Users” has a corresponding meaning);
1.29 “VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991;
1.30 “Website” means the Service/s website located at: http://www.xstreamconnect.co.za
2. Binding contract
2.1 This Agreement is a contract between the Customer and Xstream Connect and govern the Customer’s and its Users’ use of this Service/s. The Customer warrants that, to the extent necessary, it is authorised to bind its Users to this Agreement and that such Users have given the Customer such authority.
2.2 The Customer agrees that it shall not use the Service/s unless it agrees to abide by the terms and conditions set out in this Agreement.
2.3 The Customer signifies its agreement with this Agreement and to regards itself as bound by them if it does either of the following:
2.3.1 Click to accept or agree to this Agreement where Xstream Connect presents an option to do so, either on the Website or otherwise; or
2.3.2 By using the Service/s in any way, in which case the Customer understands and agree that Xstream Connect will treat its Service/s use as acceptance of this Agreement from the moment it first begins to access the Service.
2.5 Application of the Consumer Protection Act
2.5.1 A transaction (as defined in the CPA) between the Customer and Xstream Connect may or may not fall under the provisions of the CPA depending upon whether certain of the Customer’s metrics and values (“Threshold Values”) are below a certain value at the time the transaction is entered into.
2.5.2 The Threshold Values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
2.5.3 Xstream Connect duties towards the Customer may vary depending upon whether the transaction in question is subject to the CPA, and Xstream Connect will act upon the information given to it by the Customer in this regard. Consequently:
220.127.116.11 The Customer warrants that any statement made to Xstream Connect in respect of its Threshold Values is accurate.
18.104.22.168 If the Customer claims that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, Xstream Connect may at its instance require the Customer to provide it with financial statements as proof thereof.
22.214.171.124 If the Customer misstates the Threshold Values in such a way that Xstream Connect considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by Xstream Connect resulting from such misstatement.
3.1 Users are required to register if they wish to use the Service/s.
3.1.1 Users are required to register with the Service/s using a registration form available on the Website.
3.1.2 When Users register to use the Service/s, they will be asked to select a username and password in order to secure Users’ accounts.
3.1.3 Users may only register once to use the Service/s.
3.1.4 Users may not impersonate another person and Users are be required to use their real identities as identifiers associated with their account. Not adhering to this clause constitutes fraud and such account will summarily be closed without notice.
3.1.5 Once registered Users will be able to log into their accounts using their usernames and passwords.
3.2 In order to successfully complete the registration process, Users are required to submit the Registration Data to Xstream Connect.
3.2.1 Users warrant that the Registration Data is accurate, current and complete. The Customer agrees that Users will be denied access to the Service/s should those Users breach this warranty or subsequently be found to have breached this warranty.
3.2.2 Xstream Connect may take steps to verify Users’ Registration Data once Users have completed the requisite registration process. The Customer and Users agree to this verification process and irrevocably consent to Xstream Connect gaining access to relevant information held by third parties which may be required to reasonably complete the verification process. The Customer and Users acknowledge and agree that their access to the Service/s may be limited until such time as this verification process has been successfully completed.
3.2.3 Should Users not agree to the verification process as contemplated above or withhold their consent, Users’ access to the Service/s, generally, may be suspended or terminated.
3.2.4 Users waive any claims Users may have against Xstream Connect or Xstream Connect Associates arising out of Xstream Connect denial of access to Users to the Service/s.
3.3 Passwords and Account Security.
3.3.1 Users agree that the security of Users’ account is solely Users’ own responsibility. Users further agree that;
126.96.36.199 Users are responsible for maintaining and promptly updating the Registration Data and any other information Users furnish Xstream Connect with, thereby keeping it accurate, current and complete;
188.8.131.52 if Users believe their Service/s account security has been compromised in any way, Users will notify Xstream Connect immediately;
184.108.40.206 Users shall be held fully responsible for any misuse or compromise to Users’ account which Xstream Connect is not adequately notified about; and
220.127.116.11 Xstream Connect reserves the right to suspend Users’ access to their Service/s accounts pending an investigation and resolution if any security violations are believed to have occurred in association with Users’ Service/s account.
4. Commencement and duration
4.1 The Agreement shall commence upon the Effective Date and shall endure until the termination date of the last of the Services.
4.2 The terms for each Service will stipulate the duration of each such Service. If no such duration is recorded or in the case of where it cannot be determined what the duration of such Service should be, the duration of each of the Services shall be for 1 (one) month rolling until terminated by either Party on 30 (thirty) days’ notice.
5. Charges and payment
5.1 Costs shall be payable to Xstream Connect monthly in advance by way of credit card or debit order of EFT deducted on the last day of the month (unless otherwise agreed).
5.2 The Costs specified on the Website include VAT and any other any taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement.
5.3 The Costs specified on the Website may change from time to time without notice to the Customer. The Customer should visit the Website on a regular basis in order to take notice of such changes.
5.4 Invoices will be emailed to the Customer’s designated email address (for billing purposes) indicated in the New User Signup form unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed.
5.5 Debit Order and Service/s Cancellation.
5.5.1 By the act of the Customer supplying its banking details and agreeing to the terms and conditions of the Agreement the Customer accepts and agrees to the following:
18.104.22.168 The request and authorisation of Xstream Connect to draw against the bank account of the Customer (or any other bank or branch to which the Customer may transfer its account) the due amount or any variable amount pertaining to this Agreement, on the first working day of each month. This being the amount necessary for the settlement of the monthly invoice and/or any overdue amounts, due to Xstream Connect in respect of the Customers purchases or in terms of this Agreement.
22.214.171.124 The Customer agrees that all withdrawals from its account by Xstream Connect shall be treated as though they had been signed by the Customer itself. The Customer specifically instructs and authorizes the relevant duly authorised Xstream Connect agent or by computer through a system provided by the South African Banks to draw against the account of the Customer.
126.96.36.199 The Customer hereby agrees to pay any banking charges relating to this debit order instruction.
188.8.131.52 The authority and Service/s may be cancelled by the Customer by clicking and accepting the cancellation of services link as displayed on the website before the 25th of the current month. Failure to do so will result in the product being activated and the monthly subscription being debited from the Customer bank account. If the Customer cancels on or after the 25th of the month, cancellation of the service will be actioned for the end of the following month.
184.108.40.206 The Customer can also cancel the Service by informing Xstream Connect in writing by sending an email with the appropriate Customer account and service details together with the termination date to firstname.lastname@example.org. This email notification needs to be sent before the 25th of the current month. Failure to do so will result in the monthly subscription being debited from the Customer bank account. If the Customer cancels on or after the 25th of the month, cancellation of the service will be actioned for the end of the following month.
220.127.116.11 If any Service contract duration is longer than a month, each specific Service terms and conditions will stipulate the penalty for early termination. If no such penalty is recorded or in the case of where it cannot be determined what the penalty of such Service should be, the penalty of each of the Services shall be the remaining value of the contract.
18.104.22.168 Debit orders will be processed on the first working day of every month. The debit order fails, the Customer Service/s will be Suspended immediately and you will be required to pay the outstanding amount by way of credit card or electronic bank transfer in order to reactivate the Service/s.
22.214.171.124 All other debit order instructions (new account sign ups, top ups, upgrades), besides the monthly subscription debit orders will be processed on a daily basis. Should a change be made on your account after the monthly debit order run, the balance will be processed on the 1st working day of the month.
5.6 Xstream Connect shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the Monthly Costs, provided that
5.6.1 Xstream Connect shall be entitled to increase OR decrease the Monthly Costs at any time.
5.6.2 Xstream Connect shall not increase the Monthly Costs on more than one occasion in any subsequent 12 (twelve) month period of this Agreement;
5.6.3 Should such an increase, as envisaged per sub-clause 5.6.1 above, occur after the initial 12 (twelve) month period, the Customer shall have the right to request Xstream Connect to provide proper and reasonable justification for such an increase, which Xstream Connect shall not unreasonably withhold.
6. Service/s provision
6.1 To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against Xstream Connect, is to require Xstream Connect to remedy the defect in the quality of the Services performed.
6.2 If Xstream Connect has supplied Equipment to enable the Customer to utilise the Service/s, defects in the Equipment will be dealt with as described in clause 6.5 below.
6.3 Xstream Connect may add new features to the Service/s and modify or even discontinue existing features on reasonable notice to the Customer and in Xstream Connect sole discretion. The Customer agrees to this.
6.4 Risk and Ownership
6.4.1 All rights of ownership in and to any Equipment:
126.96.36.199 supplied by Xstream Connect on a loan or rental basis, shall remain vested in Xstream Connect;
188.8.131.52 acquired by the Customer from Xstream Connect either free of charge or at a subsidised price shall remain vested in Xstream Connect for the duration of the Initial Period of the Schedule in terms of which it is supplied; and
184.108.40.206 acquired at Xstream Connect listed price shall remain vested in Xstream Connect until the Customer has made payment therefor in full to Xstream Connect.
6.4.2 All risk in and to the Equipment shall pass to the Customer on delivery thereof at the premises of the Customer. Upon the signature of a proof of delivery by the Customer, the Customer shall be liable for any and all loss, theft or destruction of or damage thereto, howsoever arising.
6.4.3 In the event of damage to or the loss, theft or destruction of the Equipment or any portion thereof after the signature of a proof of delivery, the Customer shall be obliged to replace and/or repair or to pay to Xstream Connect the cost of replacing and/or repairing the Equipment so damaged, lost, stolen or destroyed.
6.4.4 The Customer undertakes:
220.127.116.11 to display in relation to the Equipment no lesser degree of care than it would had 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;
18.104.22.168 not, in any manner, to alienate, encumber or otherwise dispose of the Equipment;
22.214.171.124 not to procure repair or maintenance of the Equipment by any third party without the prior written consent of Xstream Connect (which shall not be unreasonably withheld) or in any other manner tamper with the Equipment.
6.5 Returns and Refunds
6.5.1 If the provisions of the CPA are applicable to this Agreement, to the extent that Equipment is supplied to a Customer, the Equipment is warranted in respect of quality, suitability and durability for a period of 6 (six) months of the Effective Date in respect of the Equipment concerned. Provided the Customer is not in breach of the Agreement, Customer may within this period return the Equipment to Xstream Connect without penalty if the Equipment fails to satisfy the requirements and standards contemplated and Xstream Connect shall repair or replace the failed, unsafe or defective Equipment.
6.5.2 If Customer elects to enforce the provisions of clause 6.5 and, within 3 (three) months of any repair undertaken by Xstream Connect, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered by Customer, Xstream Connect shall, in its sole and absolute discretion:
126.96.36.199 replace the Equipment; or
188.8.131.52 refund to Customer the Once Off Cost applicable thereto.
184.108.40.206 refund to Customer the monthly fee for the duration that the service could not be used.
7. Customer's obligations
7.1 Xstream Connect is obliged to protect its technical infrastructure against security threats and to protect the interests of its Customers by ensuring that the conduct of no one Customer prejudices the user experience of the other Customers. Accordingly, Xstream Connect imposes certain reasonable rules relating to the Customer’s conduct while using the Services which are contained in Xstream Connect Acceptable Use Policy. Because security threats can be fluid and acceptable usage can change, Xstream Connect may from time to time amend this AUP by publication on its website. These amendments will not materially affect the Agreement, but will merely update the limits of the Customer’s existing duty to use the Services in a safe and responsible manner.
7.2 Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
7.2.1 damages in any way Xstream Connect technical infrastructure or any part thereof;
7.2.2 impedes, impairs or precludes Xstream Connect from being able to provide the Service/s in a reasonable and business-like manner;
7.2.3 constitutes an abuse or malicious misuse of the Service/s;
7.2.4 or is calculated to have any of the abovementioned effects. In such an event, should Xstream Connect incur expenses to remedy the situation, Xstream Connect reserves the right to charge the Customer the amount necessary to cover Xstream Connect additional expenditure. Notwithstanding the above, Xstream Connect reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
7.3 Customer is prohibited from unauthorised selling, reselling or otherwise dealing with the Service/s which are proprietary to Xstream Connect in any manner whatsoever. Without limitation to the aforegoing, the Customer agrees that any consideration which it may receive whilst acting in breach of this prohibition shall be deemed to be Xstream Connect damages suffered as a result of the Customer’s breach of this prohibition and payable to Xstream Connect.
7.4 Customer is prohibited from allowing any person other than its employees or other authorised parties, access to the Service/s through any of Customer’s Equipment, personnel and/or address.
7.5 Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Xstream Connect or Xstream Connect Associates if Xstream Connect interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to Xstream Connect.
7.6 Customer may not at any time use the Service in contravention of any South African Law. Customer acknowledges that Xstream Connect has no obligation to assist Customer in obtaining knowledge and/or clarity in terms of the applicable South African Law.
8.1 Any specifications, descriptive matter, drawings and other documents which may be furnished by Xstream Connect to a Xstream Connect Customer from time to time:
8.1.1 do not form part of this Agreement and may not be relied upon unless they are agreed in writing by both parties hereto to form part of this Agreement by way of a Schedule;
8.1.2 shall remain the property of Xstream Connect and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in Xstream Connect. Such documents shall be returned to Xstream Connect on demand.
9.1 Liability limitation
9.1.1 Xstream Connect shall not be liable for any losses of whatsoever nature and howsoever arising where Xstream Connects failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events:
220.127.116.11 the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement; or
18.104.22.168 circumstances that constitute an event of force majeure as contemplated in clause 16 hereof; or
22.214.171.124 all telecommunications infrastructure and communication line faults; or
126.96.36.199 failure or unreasonable delay by the Customer to report faults/problems to Xstream Connect; or
188.8.131.52 the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which Xstream Connect relies to provide the Service/s.
9.1.2 Xstream Connect shall not be responsible for any losses of whatsoever nature and howsoever arising if such Losses is caused by any defect or failure in the Equipment due to:
184.108.40.206 compliance by Xstream Connect with any applicable legislation; and/or
220.127.116.11 any alteration to the Software and Equipment by the Customer; and/or
18.104.22.168 any defect and/or hazard in any third party equipment required by the Customer to be used in the provision of the Services.
9.1.3 In addition to 9.1.1 and 9.1.2 above, and to the extent permitted by South African Law, Xstream Connect shall not be responsible for Losses of whatsoever nature and howsoever arising in respect of the Services under this Agreement.
9.1.4 Subject to clause 9.1.1 to 9.1.3 above, the entire liability of Xstream Connect and Customer’s exclusive remedy for direct damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 1 (one) month preceding Customer’s written notice to Xstream Connect in respect of such claim.
9.1.5 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time on reasonable notice to Customer, and all liability on the part of Xstream Connect of any loss or damage (whether direct or consequential) thereby incurred or for any costs, claims, or demands of any nature arising therefrom, is excluded.
9.2.1 The Customer indemnifies Xstream Connect and Xstream Connect Associates from any Losses which arise as a result of the Customer’s use of the Services or the Customer’s breach of this Agreement.
9.2.2 The Customer shall indemnify and hold Xstream Connect and Xstream Connect Associates harmless against all Losses, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 9.2.1 above.
9.2.3 Customer hereby indemnifies Xstream Connect against and holds Xstream Connect harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or information obtained through the use thereof or in respect of any matter for which liability of Xstream Connect is excluded in terms of clause 9.1.1 to 9.1.3 above.
9.3 Third-party websites
9.3.2 Xstream Connect has no control over Linked Websites and the Customer agrees that Xstream Connect is not responsible or liable for any content, information, goods or services available on or through any such Linked Websites or for any Losses caused or alleged to be caused by or in connection with the Customer’s use of or reliance on any such content, information, goods or services available on or through any such Linked Websites. The Customer agrees that where it or its Users access Linked Websites, they do so entirely at the Customer’s or, where appropriate, the Users’ own risk.
9.3.3 Interaction, correspondence or business dealings with Third Parties which are referred to or linked from or to the service is similarly entirely at the Customer’s or, where appropriate, the Users’ own risk.
9.4.1 Xstream Connect warrants and represents that:
22.214.171.124 it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide the Services to the Customer;
126.96.36.199 it is the owner of or has the right to use under licence any intellectual property employed by it during or as part of the Services;
188.8.131.52 it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
184.108.40.206 the Services shall be performed in compliance with South African Law;
220.127.116.11 the Services shall be provided in accordance with the provisions of this Agreement;
18.104.22.168 the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with the highest standard of its industry.
9.4.2 Save as expressly set out in clauses 10.1 above, Xstream Connect does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
9.4.3 Xstream Connect does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
22.214.171.124 will be preserved or sustained in its entirety;
126.96.36.199 will be delivered to any or all of the intended recipients; or
188.8.131.52 will be suitable for any purpose;
184.108.40.206 will be free of inaccuracies or defects or bugs or viruses of any kind; or
220.127.116.11 will be secured against intrusion by unauthorised third parties;
18.104.22.168 and Xstream Connect assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 9.4.
9.5.1 Notwithstanding anything to the contrary contained in this Agreement, Xstream Connect reserves the right in its absolute discretion and after the receipt by Xstream Connect of any take-down notice in terms of the ECT or through any other legal and/or regulatory complaint, mechanism or process from any governmental department or agency, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of South African Law, or is defamatory in nature, to immediately give written notice to Customer of Xstream Connect intention to remove the offending information or any portion thereof from Customer’s web site.
9.5.2 Should such offending information not be removed from the web site by Customer within 48 hours of written notice to that effect, Xstream Connect shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such content, to terminate the Hosting Services of such Customer. Any removal or termination by Xstream Connect shall in no way constitute a breach by Xstream Connect of this Agreement.
9.5.3 In the event a Customer is believed to be infringing on any person’s rights in terms of South African Law, any person affected by such infringements may report the matter to Xstream Connect by visiting Xstream Connect Abuse page at http://wwwxstreamconnect.co.za.
10.1 Should the Customer breach any of the terms and conditions of this Agreement, without prejudice to any other rights that it may have, Xstream Connect shall be permitted to either:
10.1.1 afford the Customer reasonable opportunity to remedy the breach;
10.1.2 suspend access to or terminate the Services;
10.1.3 cancel this Agreement;
10.1.4 in any event without prejudice to Xstream Connect right to claim damages and/or specific performance.
10.2 The Customer shall be liable for all costs incurred by Xstream Connect in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
11. Intellectual property
11.1 The Customer acknowledges that all Intellectual Property Rights relating to or used in connection with the Service/s provided under this Agreement vest in Xstream Connect, either as owner or licensee of such Intellectual Property Rights.
11.2 Except as provided in this clause 11, the Customer does not acquire any rights under this Agreement from Xstream Connect or Xstream Connect licensors to the Service/s, including any related Intellectual Property Rights. Some Service/s may be provided to the Customer under a separate license, in which case that license will govern the Customer’s use of the Service/s concerned.
11.3 Xstream Connect grants the Customer a limited, revocable, non-exclusive, non-sublicensable, nontransferable license to access and use the Service/s solely in accordance with this Agreement; and
11.4 Customer hereby indemnifies and holds Xstream Connect and Xstream Connect Associates harmless against all Losses suffered or incurred by them as a result of any Intellectual Property Rights claim by any third party.
12. Interception and monitoring
12.1 Subject to the provisions of the RIC Act, the Customer and Users agree to permit Xstream Connect to intercept, block, filter, read, delete, disclose and use all communications the Customer and Users send or post to or using the Service/s and/or to Xstream Connect staff.
12.2 The Customer and Users agree and acknowledge that the consent they provide above satisfies the “writing” requirement specified in ECT and RIC.
13. Protection of confidential infromation
13.1 Each Party will keep confidential and protect Confidential Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement.
13.2 Either Party acknowledges that unauthorised disclosure or use of Proprietary Information may cause substantial economic loss. All materials containing Confidential Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Confidential Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Confidential Information for either Party’s authorised use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
13.3 Each Party shall ensure that its employees comply with its obligations under this clause 13.
13.4 This clause 13 shall survive termination or cancellation of this Agreement.
13.5 This Agreement does not transfer to either Party title to any Intellectual Property Rights contained in any Confidential Information of the other Party.
14. Cession and assignment
14.1. The Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by Xstream Connect prior to such cession and/or assignment.
15. Force majeure
15.1 Xstream Connect shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of Xstream Connect, provided that Xstream Connect makes all reasonable efforts to perform.
15.2 It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of Xstream Connect and the force majeure provisions shall apply:
15.2.1 a fault on the part of an Xstream Connect supplier that affects the Service/s; and/or
15.2.2 the non-performance, inability to perform or delay in the performance by a supplier to Xstream Connect relating to the provisioning of equipment, services and/or facilities to Xstream Connect that affects the Service/s; and/or
15.2.3 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm or fire.
16.1 If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.
17. Dispute resolution and arbitration
17.1 Any dispute which arises between the Parties relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, shall be referred to a committee consisting of two (2) members appointed by the Customer, and two (2) members appointed by Xstream Connect, or alternates appointed by them, who will use their best efforts to resolve the dispute within fourteen (14) calendar days of the dispute having been referred to them.
17.2 Should the committee be unable to resolve a dispute, the parties agree to have the dispute resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed in terms of such Rules.
17.3 In the case of litigation:
17.3.1 the Parties consent to the jurisdiction of the appropriate division of the High Court of South Africa in respect of all proceedings which may arise out of or in connection with this Agreement;
17.3.2 all costs of litigation, on an attorney and own client scale and including any value added tax, charges and disbursements and fees of a like nature, incurred by the successful Party in successfully enforcing or defending any of the provisions of this Agreement, or any claim hereunder and shall be for the account of the unsuccessful Party.
17.4 Where the Customer instigates the dispute and where the provisions of the CPA are applicable to this Agreement, and the Customer does not use the Services under dispute wholly or mainly for his business or profession, then the provisions of clauses 17.2 shall be voluntary, and the Customer may choose such other means of resolving the dispute as are set out in the CPA.
18. Governing law and jurisdiction
18.1 This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
19. Place for delivery of notices
19.1 The Customer chooses its place for delivery of notices (“domicilium”) at the physical address appearing on the New User Signup form for all purposes, including but not by way of limitation, receiving notice from Xstream Connect, communicating with Xstream Connect and the receiving service of process.
19.2 Xstream Connect chooses its domicilium at 18 Clulee Road, Linbro Park, Sandton 2065.
19.3 Either Party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within ten 10 (ten) days of the intended domicilium change.
19.4 Any notice which either Party may give to the other shall be posted by prepaid registered post or hand-delivered to the other Party’s domicilium and shall be presumed, unless the contrary is proved by the Party to whom it is addressed, to have been received by that Party on the 10th (tenth) day after the date of posting or on the day of delivery as the case may be.
20.1 Notwithstanding that which is contained herein, in addition hereto the following terms shall apply to resellers of the Service/s:
20.1.1 The Services shall be sold as described and presented on the website, resellers shall not attempt to alter or customise such Service/s without the consent of Xstream Connect;
20.1.2 The reseller shall be responsible for all support calls from its direct Customers, Xstream Connect shall, however, assist only the reseller through the existing Xstream Connect support channels.
20.1.3 The reseller is responsible for onward invoicing and collection of monies from its Customers. Failure to collect such monies shall in no manner be an excuse or reason for the resellers’ failure to make payment of the Service/s provided by Xstream Connect and may lead to suspension of the Service/s at the discretion of Xstream Connect.
21. Service level
21.1 Notwithstanding clause 9.4.3 above, the Service/s provided should be viewed as “best-effort”, “as is” or “as available”. Xstream Connect cannot guarantee or warrant that the Service/s will at all times be free of errors or interruptions. During any technical failure, modification or maintenance of the Service/s provided, Xstream Connect will use its reasonable endeavours to notify the Customer of such maintenance and to resume the Service/s as soon as possible.
22.1 No variation, amendment or consensual cancellation of this Agreement, or this clause, shall be binding unless recorded in a written document signed by a duly authorised Xstream Connect representative or published by an authorised Xstream Connect representative to the Website.
22.2 The parties acknowledge having read and understood this Agreement and are not entering into this Agreement on the basis of any representations not expressly set forth in it.
22.3 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between Customer and Xstream Connect or not.
22.4 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement shall operate as an estoppel against either Party hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
22.5 In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
22.6 Nothing in the Agreement shall constitute a partnership, joint venture, agency or employment between the Parties hereto, and neither Party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other in any way for any purpose.
22.7 Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
22.8 In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive. In particular, termination or cancellation of this Agreement shall not affect any rights or duties arising under it with respect to Confidential Information as set out in clause 13 above.
22.9 These terms and conditions, together with the New User Signup form, constitute the whole of the Agreement between Xstream Connect and Customer relating to the subject matter hereof. Xstream Connect Discount Voucher or Promotional offers Please refer to the offer dates on the discount offer to ensure your offer is still valid. Discount vouchers are valid as a once-off discount for the first month of service for the product you selected. Vouchers are valid for a new purchase on our online store only and cannot be used as a discount for your monthly subscriptions. Your discount voucher qualifies you for up to the value (i.e., R500.00) off of your purchase, this is due to the nature of our month-to-month contracts. Your service may equate to a lesser value than the discount voucher, or if you purchase the service midway through the month, your discount will be calculated based on the pro-rata billing amount for the remaining days of the month.
1.1. ”4G LTE” means wireless broadband technology used to connect the CPE to the network.
1.2. “calendar month” means the period from the 1st day of a month to the last day of that month.
1.3. “Coverage Area” means the coverage area in South Africa within which XSTREAM CONNECT is providing the service, as it may be notified at any specific time.
1.4. “Customers” shall mean Customers to be acquired by the Operator for the provision of Services in terms of this Service Schedule.
1.5. “GB” means gigabytes.
1.6. “R” or “Rand” means the lawful currency of South Africa.
1.7. “Network Capacity” means the number of Customers or the amount of data that can be delivered to Customers in a specific area defined within the Coverage Area, provided with its designated features as may be provided and modified from time to time by XSTREAM CONNECT.
1.8. “Services” means the purchase and resale of the services packages as defined in Annexure 1.
1.9. “Services Plans” means the plans available as set out in Annexure 1 hereto.
1.10.“Suspended Service” means the service is no longer active on the network.
1.11.“Terminated Service” means the service is no longer live on the network.
2. Suspensive conditions
This Agreement are subject to the following Suspensive Conditions:
2.1. Obtaining all the relevant permits that may be required for this transaction by the Parties, including, if necessary, regulatory approval.
2.2. The Coverage Area has been defined and agreed within which the Operator can undertake sales.
3. Support services
3.1. Xstream Connect shall use its best efforts to ensure that the services are provided optimally throughout the duration of this Service
3.2. It is recorded that Xstream Connect does not give or make any warranties, representations or guarantees whatsoever, whether implied or express, in relation to the availability, reliability, accuracy, and security of the network capacity.
4. Xstream Connect responsibilities
4.1. Xstream Connect shall be responsible for providing 4G LTE on a best efforts basis and based on the exact same Quality of Service provided to all other Xstream Connect 4G LTE Customers;
4.2. Xstream Connect shall send an invoice to the Client on or around the 25th of every month for the Service Plans purchased by the Client.
4.5. The Parties will enter a Tri-party agreement for the purposes of the Regulation of Interception of Communications and Provision of Communication-Related Information (“RICA”) and Protection of Personal Information (“POPI”) acts but it is herewith recorded that the Operator will remain solely responsible for adhering to the processes as defined in the aforementioned two acts in respect of their Customers.
5. Expansion and coverage
5.1. Xstream Connect will issue a coverage map that defines the coverage areas in which services are available;
5.2. Purchasing the service outside of the coverage area will result in Customers receiving no service or an impaired service. Should a Customer purchase a service outside the coverage area, then Xstream Connect will not be responsible for the quality of the service which is received or even that service is made available;
6.1. Xstream Connect warrants that Service will be made available within the published coverage area to Customers on a best effort basis;
6.2. The Customer warrants that it will undertake all necessary actions to be compliant with the relevant regulations not limited to RICA. POPI, and CPA acts.
Xstream Connect shall not be held responsible or liable for the Customer's non-compliance with RICA, POPI, and other relevant regulatory requirements. As such, the Customer indemnifies Xstream Connect against any claim of whatever nature arising from its non-compliance to these acts.
These options can be purchased as a SIM ONLY option or maybe bundled with one of the following routers (Subject to availability)
- Huawei B315
- Huawei B618
- ZTE MF253V
- ZTE MF283V
- ZTE MF286A
8.1 Payment is due to Xstream Connect by the end of that calendar month.
8.2. Service plans – add on bundles
At any time during a Customer’s valid contract period, the Customer will have access to purchase the following add on bundles (including VAT):
- 1GB @ R13.50
- 2GB @ R27.00
- 3GB @ R40.50
- 5GB @ R67.50
- 10GB @ R135.00
- 20GB @ R270.00
The Customer will be directed to a suitable URL to purchase add on bundles. Xstream Connect will ensure that this URL will be included in a Walled Garden and will, therefore, be zero-rated for the Customer.
9. Validity / expiry on data bundles
Any unused monthly data shall be forfeited at the end of every calendar month; data may not be carried over to the next calendar month;
Should a Customer sign a contact during a month other than on the 1st, the data and the billing will be done pro-rata accordingly for the remaining days of the month and the Customer will be billed along with the first full calendar month billing;
Any unused add on bundle shall be forfeited at 23:59 on the expiry date.
Add on bundles will always be depleted first.
11. Cancellation / suspension
11.1 Xstream Connect reserves the right to suspend and or cancel the service due to non-payment.
11.2. Should the Customer decide to cancel their month to month contract, the inclusive monthly data as well as their top-up bundles, if applicable, will be forfeited upon terminate at the end of the month.
11.3. One full calendar months’ notice is required to cancel / terminate any service.
12. Deliver and installation
12.1. The cost to deliver the in-door CPE will be charged to the Customer as a once-off fee @R195 (subject to change).
12.2. Should a Customer cancel an order on delivery as a result of lack of coverage or inadequate coverage, and the sales were made outside of the defined Coverage Area, then all incurred costs will be recovered from the Customer. XSTREAM CONNECT will not take responsibility for any damage done to a Customer’s property by any third-party vendors.
Disclaimer: The information contained in this coverage map is for general information purposes only. While we endeavour to keep the information accurate and up to date, some factors influencing coverage vary over time such as terrain. Xstream Connect makes no representations or warranties of any kind, whether expressed or implied, relating to the completeness, accuracy, reliability, suitability or availability with respect to the coverage map. Your indoor coverage may be affected by factors that may not be in our control and impact accuracy of coverage approximation.