1. Definitions

1.1   Unless the context clearly indicates otherwise, the following words, phrases and expressions shall have the respective meanings assigned thereto hereunder:

1.1.1 "the/this agreement" means these terms and conditions of use, including the Schedule, the service Provider's website terms and conditions of use, the Service Provider's copyright notice, the Service Provider's privacy policy, the Service Provider's mailbox rules and all other terms and conditions which the Service Provider might from time to time impose in respect of the service, as amended and updated from time to time
1.1.2  "effective date" means the date on which the Service Provider activates the Member's subscription to the service or the date of last signature hereto, whichever is earlier.
1.1.3  "service(s)" means the service or services described in this agreement and any other service that the Member might subscribe to or which might form part of the Service Provider's offering from time to time;
1.1.4  "Membership fee" means the fee provided for in this agreement, as set out in the Service Provider's standard price list from time to time.

1.2 If any provision in a definition is a substantive provision imposing rights or obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.

1.3 When any number of days is prescribed in this agreement, same shall be reckoned exclusive of the first and inclusive of the last day unless the last day falls on a Sunday, Saturday, or public holiday, in which case, the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.

1.4 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

1.5 Unless the context indicates the contrary, each reference to:

1.5.1 the singular shall include a reference to the plural and vice-versa;
1.5.2 any one gender shall include reference to each of the other gender; and
1.5.3 a natural person shall include a reference to a Body Corporate and vice-versa.

1.6 Headings to clauses are for reference purposes only and shall not govern the interpretation of this agreement.

2. Introduction

2.1 The Service Provider sells access to it's network on a subscription basis which facilitates use of the worldwide web, electronic mail, FTP and related services via a dialup, wireless, fibre or other medium for Aerosat Members with a valid service agreement.

2.2 By using the service provided by Aerosat, the Member will be signifying his/her acceptance of the terms and conditions of use, even if this agreement was not signed by the Member, which would in turn form a binding agreement between the Member and the Service Provider.

2.3 The Member acknowledges that the Service Provider is unable to exercise control over the content of the information passing over the infrastructure and the Internet, including but not limited to any websites, electronic mail transmissions, news groups or other material created or accessible over its infrastructure. Therefore, the Service Provider is not responsible for the content of any messages or other information transmitted over it's infrastructure.

2.4 The Service Provider's infrastructure may be used to link into other networks worldwide and the Member agrees to conform to the acceptable use policies of these networks. The Member may obtain and download any materials marked as available for download off the Internet but is not permitted to use it's Internet access to distribute any copyright materials unless permission for such distribution is granted to the user by the owner of the materials.

3. Conditions of access

3.1 The Service Provider hereby, with effect from the effective date, grants the Member access to the service in the terms and conditions of this agreement.

3.2 The Member hereby acknowledges receipt of such access and agrees that:

3.2.1 The member may not move or sell their client equipment. The equipment is on a rental basis for the duration of this service agreement. Should equipment require relocation/reconfiguration, aerosat is to be contracted to perform the changes;
3.2.2 The user may under NO circumstances change the IP address allocated to them by Aerosat to any other IP address on the Aerosat network. Changing the IP address will result in immediate suspension of all services to the client in question;
3.2.3 In the event of the Member's passwords being compromised, it becomes the responsibility of the Member to contact Aerosat to have their password(s) changed;
3.2.4 The Member agrees that the wireless client equipment will be plugged into a network card and not into a switch, hub or other bridging or multi-repeating device without the express permission of Aerosat to do so;
3.2.5 The Member will not attempt to circumvent the Service Provider's network in any way, including but not limited to IP "spoofing" or MAC Address Spoofing. The Member will not attempt to gain access to any area of the Service Provider's network where they do not/should not have access to.
3.2.6 The Satellite Plus package may not be resold or used to generate income.

3.3 Should the Member fail to comply with any of the provisions hereof, the Member agrees to pay to the Service Provider immediately, on demand, all costs, loss and/or damages incurred or suffered by the Service Provider as a result of the said breach. This may include (without being limited to) the payment of an additional Membership fee.

4. Service availability

4.1 The Service Provider will use reasonable endeavors to make the service available to Members, and keep the service available to such Members at all times. However, the Member agrees that the Service Provider shall not be liable in respect of any loss or damage caused by or arising from the unavailability of, any interruption in or the use of the service for any reason whatever. This exclusion of liability of the Service Provider for loss or damage will include (but is not limited to):

4.1.1 Losses caused by negligent acts of the Service Provider and any acts of the Service Provider's employees; 4.1.2 Any direct, consequential, incidental, indirect or special loss or damage flowing from business interruption, loss of business information, loss of data or any other cause;
4.1.3 Any loss regardless of whether a claim for such loss is based on breach of contract, delict, breach of implied warranties or otherwise; and
4.1.4 Any loss whether it could have been foreseen or not.

4.2 The Service Provider will use its best endeavors to notify the Member of any maintenance and repairs which may result in the service being unavailable, but does not warrant or otherwise contractually undertake that such notice will be given.

5. Communication

The Member hereby agrees that the Service Provider may from time to time send the Member communications regarding (without being limited to) special offers,/discounts which the Service Provider may negotiate for it's Members, operational changes that may affect the service and/or new services launched by the Service Provider from time to time.

6. Payment

6.1 The Member agrees to pay the Membership fee, which may include (without being limited to) the monthly access fee, installation fee, fees for closed user groups and fees for other services the Member may subscribe to from time to time. Unless the Service Provider specifically agrees otherwise, the Membership fee will be payable monthly in advance on or before the 5th of the month.

6.2 The Service Provider will invoice the Member for the Membership fee on a monthly basis via e-mail or other online medium (such as customer zone website) unless another agreement has been made between the Service Provider and the Member.

6.3 The Membership fee and all other amounts payable in terms hereof shall be paid free of exchange and without deduction or set-off by way of a direct debit order (drawn against a current banking account nominated by the Member) in favour of the Service Provider, and in such other manner as the Service Provider may from time to time determine. The Member agrees that in furnishing the Member's bank details, the Member authorizes the Service Provider to deduct all amounts payable in terms of this agreement from the account specified. Should the Service Provider require the Member to, the Member agrees to sign all such forms and do all such things as may be necessary to give effect hereto.

6.4 Should the Member fail to pay any amount on the due date for payment, then, without prejudice to any other rights the Service Provider may have:

6.4.1 The Service Provider shall be entitled to take all such further steps as may be necessary to recover the outstanding amount from the Member, in which event the Member agrees to pay all costs associated with such recovery on an attorney and own client basis;
6.4.2 The Service Provider shall be entitled to, without notice, limit or suspend the Member's access to the service until such time as the outstanding amount has been paid in full; and/or
6.4.3 The Service Provider shall be entitled to terminate this agreement with immediate effect.

6.5 The Member may not withhold payment of any amount due to the Service Provider in terms of this agreement by reason of any alleged breach of this agreement by the Service Provider, nor will the Member be entitled to any discount, refund or other credit under any circumstances.

7. Security

7.1 In order to ensure the security and reliable operation of the service to all Members, the Service Provider hereby reserves the right to take whatever action the Service Provider deems necessary to preserve the security and reliability of its network.

7.2 The Member may not utilise the service in any manner which may compromise the security of the Service Provider's network or tamper with the service or the network in any manner whatsoever.

7.3 Violations of system or network security by the Member are prohibited, and may result in civil or criminal liability. The Service Provider will investigate incidents involving such violations and will involve and will co-operate with law enforcement officials if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

7.3.1 Unauthorised access to or use of data,systems or networks, including any attempt to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures without the express authorisation of the Service Provider;
7.3.2 Unauthorised monitoring of data or traffic on the network or systems without express authorisation of the Service Provider;
7.3.3 Interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
7.3.4 Forging of any ICP-IP packet header (spoofing) or any part of the header information in an e-mail or a newsgroup posting.

8. User Etiquette and Abusive Behavior

8.1 The Member hereby agrees to adhere to generally acceptable Internet and e-mail etiquette. In this regard, without being limited to the examples listed below, the Member agrees not to:

8.1.1 Engage in any abuse of e-mail or spamming, including (without being limited to) the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
8.1.2 Take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent the Member's affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the service;
8.1.3 Use the service to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful or which carries child pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person's personality rights;
8.1.4 Use the service to make fraudulent offers to sell or buyproducts, items or services or to offer or solicit for any type of financial scam such as "pyramid schemes" and "chain letters";
8.1.5 Use the service in a manner that may infringe the intellectual property rights (for example copyright or trade marks) or other proprietary rights of others, including (without being limited to) the transmission of pirated software;
8.1.6 Use the service in a manner that which could damage, impair, overburden or disable the service or interfere with any other party's use or enjoyment of the service;
8.1.7 Use the service to post or transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
8.1.8 Cancel any Usenet post other than the Member's own;
8.1.9 Repeatedly post gratuitous off the topic postings;
8.1.10 Gather e-mail addresses and/or names for commercial, political, charity or like purposes or use the service to collect or attempt to collect personal information about third parties without their knowledge or consent; and
8.1.11 Maintain mailing lists, without the express permission and approval of the list members (should mailing lists contain invalid or undelivered addresses or addresses of unwilling recipients, those addresses must be promptly removed);
8.1.12 Violate the privacy of any person or attempt to gain unauthorized access to the service or any other network, including (without being limited to) through hacking, password miming or any other means; and/or
8.1.13 Use the service to engage in any illegal or unlawful activity.

8.2. Should the Member engage in any one or more of the above practices, which shall be determined in the Service Provider's sole discretion and which decision shall be final, then the Service Provider shall be entitled, without prejudice to any other rights it may have, to:

8.2.1 Without notice, suspend the Member's access to the service;
8.2.2 Terminate this agreement with immediate effect; bill the Member for any costs incurred by the Service Provider, including (without being limited to) bandwidth, administration costs, downtime, usage of the Service Provider's name or registered domain names and CPU cycles; and/or
8.2.3 notwithstanding the Service Provider's privacy policy, disclose any information relating to the Member, whether public or personal, to all persons affected by your actions.

8.3 Public relay occurs when a mail-server is accessed by a third party from another domain and utilized to deliver mails, without the authority or consent of the owner of the mail-server. User mail-servers must be secure against public relay as a protection to both themselves and the Internet at large. Mail-servers that are unsecured against public relay often become abused by unscrupulous operators for spam delivery and upon detection, such delivery must be disallowed.

8.4 The Service Provider reserves the right to examine Member's mail-servers to confirm that no mails are being sent from the mail-server through public relay and the results of such checks can, in the Service Provider's sole discretion, be made available to the user.

8.5 The Service Provider also reserves the right to examine the mail-servers of any Members using the Service Provider's mail-servers for "smart-hosting" (when the Member relays it's mail off a server of the Service Provider to a mail-server of the Member himself) or similar services at any time to ensure that the servers are properly secured against public relay. All relay checks will be done in strict accordance with the Service Provider's policy of preserving customer privacy.

8.6 The Service Provider further reserves the right, in addition to the rights set out in 8.2 above, to (partially or fully) limit the download speed available to any particular member if, in the opinion of the Service Provider, such member is abusing the system by regularly downloading large volumes of data from services such as bit-torrent or other 'peer to peer' protocols, and thereby significantly limiting bandwidth available to other members.

9. Complaints

9.1. Upon receipt of a complaint, or having become aware of an incident, the Service Provider reserves the right to inform the Member's network administrator of the incident and require the network administrator or network owner to deal with the incident according to this AUP.

9.2 The Service Provider shall be entitled to share information concerning the complaint received with other Internet access providers, or publish the information, and/or make available the Member's details to law enforcement agencies.

9.3 Any one or more of the steps listed above, insofar as they are deemed necessary by the Service Provider in it's absolute and sole discretion, may be taken by the Service Provider against the offending party.

9.4 All cases of violation of the terms of this agreement should be reported to abuse@aerosat.co.za.

10. Indemnity

10.1 The Member hereby unconditionally and irrevocably indemnifies the Service Provider and agrees to hold the Service Provider free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by the Service Provider or instituted against the Service Provider as a direct or indirect result of:

10.1.1 the Member's use of the service;
10.1.2 installation of customer premises equipment and network cards;
10.1.3 the Member's failure to comply with any provision of this agreement or any other requirements which the Service Provider may impose from time to time; and
10.1.4 any unavailability of, or interruption in the service, as contemplated in clause 4.1 above.

11. Ownership of CPE

11.1 The Service Provider reserves its rights of ownership in the CPE device installed at the Member's premises and leases the CPE to the Member who rents it from the Service Provider for the duration of this Agreement;

11.2 The Service Provider shall have the unfettered right to reclaim possession of the CPE on termination of this Agreement for whatever reason.

11.3 The Service Provider will assume responsibility, at its own cost,or the insurance of CPE installed at the Member's premises and for such maintenance of equipment installed as is attributable to normal wear and tear or where damage to the equipment does not result from misuse or negligence on the part of the Member or as a result of the theft of equipment. Any other damage to the Service Provider equipment including: lightning, corrosion, equipment failure, malfunction or any other act of God, will be repaired or replaced by the Service Provider at no cost to the Member. The Member agrees to provide reasonable access to the Service Provider personnel for repairs and replacement.

12. Breach

Should the Member be in breach of any provision of this agreement, then the Service Provider shall be entitled, without prejudice to any other rights it may have and without notice to the Member to forthwith:

12.1 claim immediate payment of all outstanding amounts payable in terms of this agreement;

12.2 suspend the Member's access to the services; and/or

12.3 terminate this agreement, retain all amounts already paid by the Member and recover all costs incurred by the Service Provider, including (without being limited to) legal costs on an attorney and own client basis, administrative costs and the costs of man hours lost.

13. Certificate of Indebtedness

13.1 The amount due and payable by the Member to the Service Provider in terms of this agreement at any time shall be determined and proved by a certificate signed by one of the Service Provider's directors, whose appointment, qualification and authority need not be proved.

13.2 Such certificate shall be deemed to be a liquid document for the purpose of obtaining summary judgment, provisional sentence and/or any other judgment against the Member.

14. Cession and Delegation

14.1 The Member may not cede any of your rights or delegate any of the Member's obligations under this agreement without the Service Providers express written consent.

14.2 The Service Provider shall be entitled, in its sole discretion and without notice to the Member, to cede and transfer or delegate to any third party all or ay of its rights or obligations under this agreement.

15. Jurisdiction

The Member hereby consents to the jurisdiction of the Magistrate's Court in the Republic of South Africa in respect of any proceedings that may be initiated by the Service Provider arising out of this agreement, provided that the Service Provider shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the Member consents to the jurisdiction of such court and agree that costs shall be calculated in accordance with the tariff of such court.

16. Duration

This agreement will commence on the effective date and will endure for an initial continuous period of twelve months, and thereafter for an indefinite period, subject to the right of either party to terminate this agreement at any time by means of 1 (one) calendar month prior written notice to such effect to the other party. Upon termination of this agreement, any outstanding amounts remain payable and have to be settled within 30 days of termination. Should the member at any stage during the contract wish to downgrade their connection to a smaller package, 1 (one) calendar month prior written notice is required.

17. General

17.1 The parties acknowledge and agree that this agreement sets out the whole of the agreement between them and that there are no other agreements, guarantees or representations, either verbal or in writing, in regard thereto upon which any party relies in concluding this agreement.

17.2 The parties choose their respective domicilia citandi et executandi for the purposes of giving any notice, the serving of any process and for any other purpose arising from this agreement as follows:

17.2.1. The Service Provider : 33A Worraker Street, Newton Park, Port Elizabeth 17.2.2 The Member:
The address the Member furnished to the Service Provider in the schedule hereto when subscribing for the service;

17.3 The Member agrees that any notices the Service Provider sends to the Member in terms of this agreement may be sent via e-mail;

17.4 No indulgence, leniency or extension of time which the Service Provider may grant or show to the Member shall in any way prejudice the Service Provider or preclude the Service Provider from exercising any of it's rights in the future.

17.5 The Member warrants that as at the effective date, all the details furnished by the Member to the Service Provider are true and correct and that the Member will notify the Service Provider forthwith in the event of a change to such details.

17.6 Telephonic Support is offered to the client, call outs will be to the service provider's discretion and will need to booked in advance.

17.7 Internet banking and other such exchanges where information that the Member deems valuable and private is transmitted and received should be carried out at the Member's own risk. The Service Provider does not and will not take any responsibility for the violation of a Member's privacy or leakage of valuable information due to their negligence. All Members should run a highly restrictive firewall on their gateway.

18. Installation Costs

Installation costs will be requested on signature of this contract. The costs incurred will be quoted upon inspection of the site and is also based on the contract purchased (cheaper contracts have a higher installation cost). The installation cost includes the rental of the equipment from the Service Provider for the duration of the Member's service contract with the Service Provider. At all times the equipment remains the sole property of the Service Provider. ALL INSTALLATION, INCLUDING INSTALLATION OF NETWORK CARDS, IS UNDERTAKEN AT THE SOLE RISK OF THE MEMBER, In the event that the member requests the equipment to be moved, a fee of R500 will charged to the member. The move will be subject to a site evaluation at the new premises. Should the test prove negative for signal please refer to paragraph 15 of the terms and agreements.

19. Virus filtering

19.1 The Service Provider undertakes to filter content and scan all e-mail messages for viruses on the server side, but cannot be held liable for any virus that may slip past this line of defense. All Members will be responsible for their own antivirus protection.
Signal test

19.2 The service provided by the Service Provider is subject to the availability of sufficient s signal to the Member's premises which is dependant on a reasonable line-of-sight to one of the Service Provider's High Sites.

19.3 In the event that the member requests for his/her connection to be suspended for any period of time, a R500 reconnection fee will be charged to the member.

20. Limitation of Liability

Notwithstanding the above terms, the service provider will not be liable to you or any other person/entity as regards any loss or damage caused by or arising from the interruption and/or unavailibility of the services, howsoever arising. The member and/or any other person/entity will not have any claim, action or application against the service provider howsoever arising for direct damages, indirect damages, loss of profits and incidental, special or consequential damages and the member hereby indemnifies and holds harmless the service provider, its officers, employees, subsidiaries, affiliats and contractors in respect of such damage or loss.

The Member acknowledges that they have read and understood these terms and conditions and agree to be bound by them.