Sakeng Mobile Customer Agreement

 

Between the SAKENG MOBILE CUSTOMER and SAKENG MOBILE (PROPRIETARY) LIMITED with registration number: 2019/477504/07, with its principal office situated at Midridge Office Park North, corner New and 6th Road, Midrand, Gauteng, 1685, with its chosen email address as service@sakeng.co.za.

This Agreement contains our standard terms and conditions. When you (i) enter your PIN and so request us to activate your SIM on the network; or (ii) open our sealed package; or (iii) use the network other than for emergency calls or calls to our Customer Services department; or (iv) request a port-in, you will be asking us to give you access to our services and the network on the terms of this agreement. When we accept your request, we will connect your SIM to our service and open an account in your name. This will then constitute a binding agreement between us. By using Sakeng Mobile you agree that you have read and understood the terms and conditions of this Agreement and you acknowledge that these terms and conditions in their entirety shall apply to you.

We reserve the right to amend, modify, update and change any of the terms of this Agreement and any Schedules that may be uploaded onto the Sakeng Platform from time to time. You will be notified via the Sakeng Platform of any material changes to the Agreement and Schedules that may affect your legal rights as a Customer. It is your responsibility to regularly check these terms and make sure that you are satisfied with the changes. Your continued use of Sakeng Mobile will be deemed to constitute acceptance of such changes.

 

1. In this Agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings–

1.1. Definitions

1.1.1. “Agreement” means these Sakeng Mobile standard terms and conditions together with any Schedules that may be uploaded onto the Sakeng Platform from time to time and the application form that you must fill out when you apply for the Service, or that we may fill out on your behalf at your request;

1.1.2. “Activation” means the activating of your SIM Card and/or phone number to operate on the Sakeng Mobile Network so that you can use the Services;

1.1.3. “Business days” means all days, excluding Saturdays, Sundays and public holidays. When calculating business days, one must exclude the first day on which the event occurs and include the last day;

1.1.4. “Business information” means the documents and information which Sakeng Mobile may request from you, if applicable;

1.1.5. “Charges” means our charges published by us from time to time in the rate plan on the Sakeng Platform or elsewhere, including our charges for Services rendered, for you making use of our Services, for example any charges by a third party supplier, including but not limited to, increases, and special or once-off charges like SIM and connection fees to sign you up, or charges to give your account information; and any charges to port you;

1.1.6. “CLI” means caller line identification as we use in clause 15;

1.1.7. “Customer Services Department” means the customer care centre with contact number as follows 0860 Sakeng (725364), or 135 free from your phone;

1.1.8. “Electronic Communications Network Provider” means any person or organisation licensed in terms of the Electronic Communications Act, 2005 to provide electronic communications network services.

1.1.9. ”Electronic Communications Service Provider” means a person or organisation licensed in terms of the Electronic Communications Act, 2005, to provide electronic communications services.

1.1.10. “Effective Date” means the date of execution of this Agreement by you accepting the terms and conditions on the Sakeng Platform and (i) enter your PIN and so request us to activate your SIM on the network; or (ii) open our sealed package; or (iii) use the network other than for emergency calls or calls to our Customer Services department; or (iv) request a port-in;

1.1.11. “ICASA” means the Independent Communications Authority of South Africa, this is a public body that regulates the way that Electronic Communications Service Providers and Electronic Communications Network Service Providers carry on business and provide services and any subsequent or replacement regulatory body;

1.1.12. “ID” means your green identity document, a temporary ID book issued by Home Affairs, your national ID card or your South African passport if you are a South African citizen, and your passport if you are not a South African citizen;

1.1.13. “Intellectual property rights” or “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) which are owned by, licensed to, used and/or held (whether or not currently) by us on or in connection with our website or our Services or the network;

1.1.14. “Message” means an SMS or MMS;

1.1.15. “Migrate” means when effect changes to your Mobile plan and we agree thereto;

1.1.16. “MMS” means a multimedia communication comprising of text and pictures;

1.1.17. “MNP” means mobile number portability;

1.1.18. “MSISDN” or Mobile Station Integrated Services Digital Network, is your cell phone number;

1.1.19. “Network” is the digital mobile phone network and/or the wireless platform for internet services in South Africa that allows you to receive or use our Services;

1.1.20. “Network internet coverage” means the geographical area in which you can access and use the internet services;

1.1.21. “Network operator” means any entity licensed by ICASA to operate an electronic communications network using cellular technology, in South Africa;

1.1.22. “Numbering regulations” means the ICASA numbering plan and numbering regulations published from time to time which is followed by network operators in South Africa;

1.1.23. “Operating Instructions” means any procedures, rules or instructions, verbal or written and amendments thereto, as made, from time to time, by Sakeng Mobile, relating to the operation, use or maintenance of Equipment and software platforms;

1.1.24. “Products” mean the services which we from time to time specifically authorise you to participate in under this Agreement as described and outlined on the Sakeng Platform, subject to your acceptance thereof;

1.1.25. “Personal information” means the documents and information which we may request from you including but not limited to your name, address, contact details, identity number, passport number, proof of residence, card or banking details;

1.1.26. “Phone number” means the cell phone number you choose or bring with you when you apply for our Sakeng Mobile Service, or the number we select and issue to you in accordance with the numbering regulations and this Agreement or any additional Schedules hereto;

1.1.27. “Phone plan” means paying for a phone in instalments over a specific number of months;

1.1.28. “Phone” means a cellular radio system that can be used over a wide area, in other words, it is an instrument which you buy from us and/or which you use to access our Service;

1.1.29. “Port date” means the date upon which you request us to port-in your number or the day you request another network operator to port you out of Sakeng Mobile;

1.1.30. “Port” or “Porting” means the ability to transfer your phone number from one Electronic Communications Network Provider or Electronic Communications Service Provider to another so that you become a subscriber of the other Electronic Communications Network Provider or Electronic Communications Service Provider, but using the same phone number;

1.1.31. “Prepay” means what we say in clause 12 and is also referred to as “prepaid”;

1.1.32. “Proof of address” means a document that sets out your name and physical address, such as a bank statement, municipal rates, phone or retail account (not older than 3 months), TV or car licence, current lease agreement, rental or credit agreement, or an insurance policy, or, if you have neither of the abovementioned and you live in an informal settlement, a letter or affidavit will suffice;

1.1.33. “Rate Plan” means the type of rate plan or package you choose. Our rate plans are published on the Sakeng Platform and can be found in store;

1.1.34. “Rates” means the price charged by us for Services rendered and/or Products delivered to you;

1.1.35. “RICA” means the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2000, as amended;

1.1.36. “Sakeng Platform”” means the deliverable software and products developed and offered by us via the Sakeng Platform, Sakeng Mobile and the Sakeng website;

1.1.37. “Sakeng Mobile” means the electronic communications network in South Africa operated by Sakeng;

1.1.38. “Security access” means your password, username, identity number, security questions and PIN;

1.1.39. “Service” means the digital electronic communications service, network services, internet services and other electronic communications services that we and other third-party providers provide to you over the network as described and outlined on the Sakeng Platform, subject to your acceptance thereof, and depending on your payment method, may include accessories, phones, itemised billing, VAS; content and top ups;

1.1.40. “SIM” means the SIM card or Subscriber Identity Module card containing your phone number and which is programmed to allow you access to our Service over the network;

1.1.41. “SMS” means a short message service or text communication;

1.1.42. “Schedules” means any Schedules that may be uploaded onto the Sakeng Platform from time to time and which Schedules form part of this Agreement;

1.1.43. “the Parties” means Sakeng Mobile and the Sakeng Mobile Customer;

1.1.44. “Top up voucher” means top up vouchers, payment made to top up by debit order, top ups by ATM or internet banking and credit card payments;

1.1.45. “Top up” means buy and load a top up voucher to access our Services, or to effect payment to us;

1.1.46. “Use the Sakeng Platform” means to load the Deliverable Software into and store and run them on your devices , in accordance with the terms of this Agreement;

1.1.47. “Unused data” means data that you acquire through the data price plan or package which you do not use by the end of the month;

1.1.48. “us”, “our” and/or “we” means Sakeng Mobile who renders the Services and/or delivers the Products;

1.1.49. “you” and/or “your” means you the Sakeng Mobile Customer who applies for and receives Service from Sakeng Mobile;

1.2. Any Schedules that may be uploaded onto the Sakeng Platform from time to time form an integral part of this Agreement and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such Schedules. The Parties agree that:

1.2.1. the terms of this Agreement shall apply to each and every Schedule which the Parties may enter into as if the terms of this Agreement were incorporated in such Schedule;

1.2.2. the conclusion of further Schedules shall create separate agreements between the Parties;

1.2.3. should any separate Schedule which has been created in terms hereof, be terminated by the Parties in terms of the provisions of this Agreement, the Parties will continue to fulfil their respective obligations to one another in respect of any other separate Schedules created in terms hereof and the terms of this Agreement will remain in force in respect of such separate Schedule so created;

1.2.4. the termination of any of the Schedules to this Agreement shall not affect the validity of this Agreement or any other Schedules concluded to this Agreement; and

1.2.5. to the extent that there is any conflict between the Schedules to this Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail.

1.3. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate;

1.4. If any provision in a definition in this Agreement is a substantive provision conferring rights or imposing obligations on the Parties, notwithstanding that it is only in the definition (interpretation) clause of this Agreement, effect shall be given to it as if it were a substantive provision in the body of the Agreement;

1.5. This Agreement shall be binding on the estates, executors, administrators, liquidators, trustees or permitted assigns of the parties as fully and effectually as if they had accepted this Agreement in the first instance and reference to any party shall be deemed to include such party’s estate, executors, administrators, trustees, permitted assigns or liquidators, as the case may be;

1.6. In this Agreement the word “including” shall mean “including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word”, and the word “include” and its derivatives shall be construed accordingly;

1.7. The validity, construction and performance of this Agreement shall be governed by the laws of the Republic of South Africa.

2. Security Access

2.1. You will be required to password protect the Sakeng Platform on your device/s and ensure that the password remains confidential. It is your responsibility to ensure that the password is secure and that the Sakeng Platform can’t be accessed by unauthorised third parties. You hereby indemnify us should you forget the password, and/or negligently or otherwise make the password known to unauthorised third parties. You will be liable for any access, use, misuse on the Sakeng Platform;

2.2. You will be required to enter a PIN on your SIM card, you will ensure that the PIN remains confidential. It is your responsibility to ensure that the PIN is secure and that it can’t be accessed by unauthorised third parties. You hereby indemnify us should you forget the PIN, and/or negligently or otherwise make the PIN known to unauthorised third parties. You will be liable for any access, use, misuse on the SIM card;

2.3. If you lose the SIM card, you may be liable to pay a replacement charge. You undertake to keep your SIM card safe and only use it to access our Services. If your SIM card is lost, stolen or damaged, call the Customer Services department or visit your nearest Sakeng branch immediately for a replacement SIM card. You will be liable for all charges relating to use of your SIM card.

3. Terms of use

3.1. This Agreement will remain in force and we will make our Services available to you if you are a Sakeng Mobile Customer and you:

3.1.1. comply with your obligations in terms of this Agreement, follow our guidelines and give us the information we ask for;

3.1.2. stay within the range of the network or our roaming partners’ network;

3.1.3. you agree not to breach any laws or regulations applicable to the services or their use.

3.2. The parties will comply with their obligations in terms of this Agreement and the parties will act in good faith in the exercise of its rights and powers under this agreement and shall do its utmost to avoid bringing the name of Sakeng Mobile into disrepute;

3.3. The parties won’t use the service (i) unlawfully; or (ii) for an unlawful or abusive purpose; or (iii) to access or send anything unlawful; or (iv) knowingly or carelessly allow any other person to do so. Examples of such unlawful or abusive use include, for example, infringing another person’s rights, defaming another person, doing anything which may reasonably be considered to be offensive, abusive, discriminatory, indecent or a nuisance, sending spam, hacking, phishing or transmitting anything which contains viruses or other software, code, programmes or files which may damage any software or equipment;

3.4. You agree not to abuse the service, won’t use the service in such a way as to interfere with other Customers use of the service or jeopardise the operation of the network or knowingly or carelessly allow any other person to do so;
3.5. By using Sakeng Mobile you warrant that you are 18 (eighteen) years of age or older, if not, you warrant that you have the consent of a parent/legal guardian to enter into these terms and conditions and the parent/legal guardian agrees to be bound to these Terms and Conditions and to be liable and responsible for you and all the obligations under these Terms and Conditions or that you have obtained legal status in another manner.

4. Signing and providing documentation

4.1. From time to time it may be necessary for you to sign or provide additional personal information and documentation to us. To start, we will need a copy of your ID and proof of address which the law requires us to collect from you. You warrant that all information provided to us is and remains true and correct;

4.2. It is your responsibility to make sure that you have given your correct personal information. If your details change for any reason, you must notify us of the change so that we may update our systems. You understand and agree that we cannot be held liable for any charges, damages or loss, if you do not ask to change your details within a reasonable period and that all such charges, damages or losses will be for your own account.

4.3. We will make use of the personal information in order to open your account, comply with legislation and/or provide a better service to you.

5. Duration

5.1. This Agreement shall commence on the Effective Date;

5.2. This Agreement shall continue indefinitely until terminated by either party as stipulated in Clause 18 of this Agreement.

6. Privacy and Personal Information

6.1. Our Privacy Policy, which is accessible through the Sakeng Platform and the Website, forms an integral part of this Agreement as it describes how we collect and use your personal information.

6.2. The Privacy Policy is binding between the parties and is incorporated into this Agreement;

6.3. You acknowledge and agree that in certain instances, as prescribed by RICA, we may be required to intercept, block, filter, read, delete, disclose and use communications sent or posted via the network.

7. Communications

7.1. We may need to send you important messages, which is not marketing material, such as information about your account, your charges or the network, if required by law or if necessary, for us to provide the services to you, whether we have your consent or not;

7.2. All communication with you will be via electronic channels;

7.3. The Customer Care Number 0860 Sakeng (725364) or dialing 135 free of charge is for the purpose of technical support between the hours of 07h00 and 18h00 Monday to Friday and 08h00 to 12h00 on Saturdays;

7.4. You acknowledge that we record all calls received by the Customer Services department for the parties protection;

7.5. Should you wish to check your latest airtime, data and SMS balance, you may dial *138# on your device.

8. Upgrades and maintenance

8.1. We will be doing maintenance on the Sakeng Platform from time to time and Services may be temporarily interrupted and/or unavailable;

8.2. We will take all reasonable steps to keep Sakeng Mobile online and available to you but we can’t guarantee 100% (one hundred percent) availability due to potential failure of telecommunication lines, weather, weak signals, use of services by other customers, the network, network coverage, bandwidth capacity, damaged SIM, technology speeds, faults in the network and unscheduled maintenance.

9. Phone number

We will give you the use of a phone number. If obliged by ICASA, we may need to change, withdraw, suspend or re-assign your phone number.

10. No reselling

You may not sell or otherwise make our Services and our rates available to others or commercially exploit them in any way.

11. Charges and payment

11.1. All our rates are available on the Sakeng Platform and on our website, alternatively, you may call our Customer Services department for a copy. You hereby acknowledge that we may, from time to time, vary our rates;

11.2. You may top-up your prepaid package at any time by paying for top up vouchers;

11.3. You hereby acknowledge that you can’t convert or redeem unused airtime or unused data on your Sakeng Mobile account to cash;

11.4. You hereby confirm that as a prepaid customer, we will deduct charges from your prepaid Sakeng Mobile account as you make use of the Services;

11.5. Unused airtime will carry over for a period of 3 (three) months, if the option is selected and only if you have bundles that qualify for roll over, thereafter the airtime will expire and be discarded. You will have no claim against us in respect of such unused airtime. It is your responsibility to ensure that any unused airtime is used up prior to expiry;

11.6. International roaming is not an option on Sakeng Mobile;

11.7. We will charge per SMS or MMS sent;

11.8. For your protection, all premium rated services are disabled on Sakeng Mobile.

12. Prepaid accounts

12.1 We offer prepaid services as follows:

12.1.1 If you are a Sakeng Emporium Member you will qualify to receive a prepaid SIM card at no additional cost;

12.1.2 you must top up with airtime and/or data to make use of our services;

12.1.3 if you have a NIL balance, people may call you, but you won’t be able to make any calls or use our other services, except to call the Customer Services department on 135 or 0860 Sakeng (725364) to top up, 132 for voicemail and emergency services on 10111; and

12.1.4 an airtime window applies to all top up vouchers once they are loaded onto your phone.

12.2 We offer top ups, vouchers and bundles as follows:

12.2.1 If you have loaded more than one top up, each new one will be activated on the day it was loaded. The voucher with the greatest airtime window will overwrite all other airtime windows and you will have to use all your airtime in that period. We do not accumulate the airtime windows;

12.2.2 On data bundles that reaches their expiry window, you will have the following options available to you:

  • Transfer data
  • Data roll over

12.2.3 On depletion of your data bundle, you will be presented with the following options:

  • Use airtime for data
  • Stop using airtime for data

13. SIM

13.1 If your SIM is lost/stolen, you must inform us and request us to “blacklist” it so that it can’t be utilised by an unauthorised third party.

13.2 You are required by law to report your device lost/stolen to the SAPS (South African Police Service);

13.3 You hereby acknowledge that you will contact us as soon as reasonably possible in order to “blacklist” the SIM. Failing which, you will be liable for all costs incurred until the device is “blacklisted”. You acknowledge that it may not be possible to remove the blacklisting from the SIM and a new number and SIM will have to be issued to you;

13.4 You cannot transfer your MSISDN or your SIM to any third party without our consent.

14. Portability

14.1 If you want to port-in from another network operator you will need to visit your nearest Sakeng branch or contact our Customer service for assistance. You confirm that there may be an administrative fee charged for porting;

14.2 You may not port if (i) any network operator has suspended your service; (ii) your phone number has been disconnected; (iii) you’ve ported in the last 60 days; (iv) your phone number is already waiting to be ported; (v) you have given incorrect details; (vi) you don’t have permission to port; or (vii) the law says you are unable to port;

14.3 We will not be liable to you or any other person for (i) porting your phone number incorrectly in accordance with your request; or (ii) any delays in or failure to implement a request to port; or (iii) any variation of your phone number; (iv) outstanding amounts due to the other network operator or (v) rights of use in your phone number coming to an end;

14.4 You acknowledge that porting cannot take effect on Sundays or public holidays and can only be activated in the late evening on the port date as requested, alternatively on the following day;

14.5 You hereby indemnify and hold Sakeng Mobile harmless against any cancellation fees or penalties your previous network operator may charge you for porting or otherwise;

14.6 You confirm that upon porting to Sakeng Mobile, you will lose your airtime, data and SMS bundles as you are porting to a different network operator;

14.7 You confirm that upon porting out of Sakeng Mobile, you will lose your airtime, data and SMS bundles because you are porting to a different network operator;

14.8 Before porting in or out of Sakeng Mobile, ensure that you use up the bulk of your airtime, data and SMS bundles. Alternatively, you may transfer it to a friend prior to moving to or from Sakeng Mobile. You will have no claim against us in respect of such unused airtime, data and SMS bundles. It is your responsibility to ensure that any unused airtime, data and SMS bundles is used up prior to porting.

14.9 You may request further information on porting from the Customer Services department or you may obtain it under the FAQ section on our website.

15. Call Line Identity

15.1 If you do not bar or hide your CLI in respect of calls made from your phone, your phone number may be sent automatically to the called party;

15.2 When sending an SMS or MMS your phone number or name may be sent automatically and cannot be barred for these messages;

15.3 If the party calling your phone has not barred their CLI, their phone number may be displayed on your phone.

16. Indemnity

16.1 Sakeng Mobile and/or its directors and/or employees shall not be liable for any loss, claim, action, expense, damage or injury suffered or sustained by you whatsoever and however pursuant to entering this agreement or as a result of its possession of or onward supply to any Customer or third party or other Service or other Product whether direct or indirect, consequential or contingent and whether foreseeable or not. In particular, we will not be liable for any financial loss, loss of business, profit, savings, revenue or goodwill suffered or sustained by you however arising which includes but is not limited to any reasonable suspension, termination or temporary unavailability of the Network, or any of Services, or any unavoidable delay in the performance of Services; any change in your phone number if we are obliged to do so in terms of law, or if you or your authorised representative requests to change your phone number; the Porting of the phone number;

16.2 You hereby indemnify us against all losses or problems or alleged problems arising from any software installed by us or you on any of your devices;

16.3 The Sakeng Platform is provided “as is”. No warranty or representation is made by us, whether express or implied, in relation to the satisfactory quality, completeness or accuracy of the service offered through the Sakeng Platform;

16.4 Sakeng and its Service Providers take the utmost care to select and employ best practices to secure and protect the Sakeng Emporium platform. Despite this care we cannot make any warranty or representation, whether express or implied, that the Sakeng Platform is free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, mobile device, network, hardware or software in any way. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, mobile device, network, or hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of Sakeng Mobile, its employees, agents or authorised representatives. We thus disclaim all liability for any damage, loss or liability of any nature whatsoever arising out of or in connection with your access to or use of the Sakeng Platform;

16.5 We aren’t liable to you for any goods or services you may order from other entities using your phone, and we do not accept liability for any amounts owing by you to any other supplier for their services. You indemnify and hold us harmless against any claims made against us by the other supplier or if you suffer loss because the supplier is not compatible with our Services or your phone;

16.6 Certain laws can imply warranties or conditions or impose obligations upon us which we can’t exclude, restrict or modify or which we can only exclude, restrict or modify to a limited extent. If these laws apply, to the extent to which we can do so, our liability to you arising from or in connection with this agreement will be limited to (i) under certain circumstances refunding you; or (ii) in the case of services, to supplying the service again;

16.7 Neither Party shall have any liability to the other Party for any losses which are a result of such Party’s failure to perform under this Agreement to the extent that such Party is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, Vis Major, supervening objective impossibility of performance, strikes, lock-outs or other industrial disputes, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, direction from ICASA rule, regulation or direction, failure or default by any other supplier or network operator, accident, fire, flood, or storm;

16.8 The provisions of this clause 16 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

17. Suspension of Services

17.1 We reserve the right to terminate or suspend this agreement without prejudice to any claims for damages or otherwise that we may have against you;

17.2 We may suspend your use of the service or disconnect your SIM from the network without warning, if the network needs urgent maintenance, modification or updating;

17.3 We may also suspend your use of the services if you (or anyone who uses your SIM) (i) breaches any term of this Agreement; or (ii) damages or abuses the network or puts it at risk; or (iii) abuses or threatens our employees; or (iv) provides information that is false or misleading at any time; or (v) as a prepaid Customer have not made a chargeable call or incurred a charge for a service within any 90-day period; or any other reason required by law or if so directed by any authority;

17.4 We may charge you a fee to reconnect you to our services, except where clause 17.1 applies;

17.5 Despite suspension of our Services, you will still be able to make calls to emergency services;

17.6 In the event of suspension of our services under clause 17.2 or disconnect your SIM from the network, except if clause 17.1 applies, you may lose your phone number.

18. Termination of Services

18.1 The parties reserve the right to terminate the use of the Services at any time, by providing the other party with 30 (thirty) business days written notice of such termination with the documentation required for the cancellation to become effective;

18.2 We reserve the right to terminate this Agreement and disable all Services and/or cancel all Products after if or should:

18.2.1 you breach any of these terms and conditions;

18.2.2 our partner network operator no longer makes the network available to us; and/or

18.2.3 ICASA orders us to withdraw your phone number.

18.3 Should any party be in breach of any term or condition of this Agreement, the non-defaulting party shall be entitled to give the defaulting party 14 (fourteen) days’ notice in writing to remedy such a breach, failing which the non-defaulting party may without prejudice to any rights that it may have in terms of this Agreement terminate;

18.4 Termination will not affect the rights of either party to the Agreement which has accrued up to the date of termination. In addition to any other rights we have at law, if you are in breach, we may claim specific performance in terms of this Agreement; or claim damages in respect of any damage which we may have suffered instead of specific performance, together with all amounts owing under or in terms of this Agreement, whether or not such amounts have become due for payment;

18.5 In the event that this Agreement is terminated, (i) the service will be disconnected from the network; (ii) you won’t be able to use the SIM; (iii) you’ll forfeit any airtime, top ups and unused data; and/or (iv) you may lose your phone number (unless you are allowed to port-out);

18.6 The Parties agree that neither party shall be entitled to terminate this Agreement on account of breach due to:

18.6.1 temporary failures at the Suppliers premises at which the computerised management system is housed, or at the premises of Sakeng Mobile;

18.6.2 temporary interruptions and suspensions of transmissions caused by malfunction;

18.6.3 temporary malfunctions of the equipment and its associated ancillaries and/or the material and/or the computerised management system;

18.6.4 other temporary occurrences of a like nature with similar effect.

19. Intellectual Property

19.1 “Sakeng Mobile” and the Sakeng signature logo is registered trademarks of Sakeng (Pty) Limited;

19.2 All Intellectual Property rights subsisting in or used in respect of Sakeng Mobiles Intellectual Property are and shall remain our property including but not limited to copyright and/or trademarks relating to the name Sakeng, the Services, or the SIM Card (including any software or firmware incorporated in the SIM Card). You shall not during or at any time after termination of this Agreement acquire or be entitled to claim any right or interest in our Intellectual Property or in any way question or dispute our ownership thereof;

19.3 You acknowledge that our Intellectual Property may only be used by you as specifically authorised in terms of this Agreement, or otherwise authorised in writing by us. It may not be used in any manner which may cause us loss, whether by way of damage to our reputation, financial loss or otherwise;

19.4 Unless expressly stated otherwise, upon termination of this Agreement, you shall forthwith discontinue the use of our Intellectual Property;

19.5 Except as may be necessary to deliver the Services, neither party shall have the right to use, and shall not use, the name of the other party or its logos or trademarks in any manner without the prior written consent of such other party, which consent may be withheld in such party’s sole discretion. Either party shall not issue any public release regarding this Agreement or the Services to be provided hereunder without the consent of the other party, which may be withheld in such party’s sole discretion;

19.6 The provisions of this clause 19 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

20. Resolution of Disputes

20.1 If you have a complaint about our service, you can contact us at any time by writing to us at service@sakeng.co.za or dialing 135 free of charge or 0860 Sakeng (725364). We will try to resolve your query or dispute as quickly as possible by escalating it to the appropriate person;

20.2 If we can’t resolve your complaint to your satisfaction, you can refer your complaint to ICASA, for attention Consumer Affairs Division, consumer@icasa.org.za or you may contact the National Consumer Commission;

20.3 Upon failure and as an alternative to clause 20.1 and 20.2 supra, any dispute, question or difference arising at any time between the Parties to this Agreement out of or in regard to-

20.3.1 any matters arising out of; or

20.3.2 the rights and duties of any of the Parties hereto; or

20.3.3 the interpretation of; or

20.3.4 the termination of; or

20.3.5 any matter arising out of the termination of; or

20.3.6 the rectification of;
this Agreement shall be submitted to and decided by mediation and arbitration (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction).

20.4 Such arbitration shall be held in Johannesburg in accordance with the provisions of the then current rules for Commercial Arbitrations of the Arbitration Foundation of Southern Africa (“AFSA”) (as amended or replaced from time to time) save that-

20.4.1 the arbitration shall be informal;

20.4.2 the arbitrator shall have the fullest and freest discretion to determine the procedure to be adopted;

20.4.3 it being the agreed intention that, if possible, the arbitration shall be held and concluded within 21 (twenty-one) Business Days after it has been demanded.

20.4.4 such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.

20.5 Anything herein contained or implied shall not preclude any Party from applying to Court for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the Arbitrator hereunder;

20.6 The provisions of this clause 20 are separate and severable from the rest of this Agreement and, accordingly, shall remain in effect despite the termination or invalidity for any reason of this Agreement.

21. Notices and domicilia

21.1 The Parties select as their respective domicilia citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this Agreement, the following addresses:

21.1.1 Sakeng Mobile:

  • Physical address: Midridge Office Park North, corner New and 6th Road, Midrand, Gauteng, 1685;
  • Email address: service@sakeng.co.za

21.1.2 Sakeng Mobile Customer

  • Physical address: will be address as stipulated on the proof of residence provided upon Activation;
  • Email address: will be the address as stipulated upon Activation

21.2 Change of address. Each of the Parties will be entitled from time to time to vary its domicilium by written notice to the other to any other address within the Republic of South Africa which is not a poste restante or its email address provided that such change shall take effect fourteen [14] days after delivery of such written notice;

21.3 Any notice to a party:

21.3.1 sent by prepaid registered post in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the following business day after posting (unless the contrary is proved);

21.3.2 delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or

21.3.3 sent by email to its chosen email address, shall be deemed to have been received on the first business day following the date of sending of such email.

21.4 Notwithstanding anything to the contrary in this Agreement a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

22. General

22.1 This Agreement together with any Schedules and annexures constitutes the entire agreement between the Parties relating to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein;

22.2 You acknowledge that you entered into this Agreement entirely as a result of your own enquiries and that you do not rely on any statement, representation or promise by us or on our behalf not expressly set out in this Agreement, or our other terms and conditions. You therefore release us and each of our officers, agents and advisors from all claims, actions, and demands of any kind (including carelessness) arising from our relationship in terms of this Agreement before it began and from discussions leading to it;

22.3 No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or agreement not to enforce or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties or additional acceptance on the Sakeng Platform of further terms and conditions;

22.4 Except as expressly provided to the contrary herein, each paragraph, clause, term, and provision of this Agreement and any portion thereof shall be considered severable and if for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment or award issued by any arbitrator or court, it shall not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the Parties hereto;

22.5 No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice such Party or preclude such Party from exercising any of its rights in the future;

22.6 No Party may cede or assign any rights or obligations under this Agreement without the prior written consent of the other Party which consent shall not be unreasonably withheld;

22.7 The parties hereto hereby consent and submit to the jurisdiction of the High Court of Johannesburg.