1. DEFINITIONS
In this agreement -

1.1 "Activation Date" shall mean the date of the activation of the SIM card on the Network;
1.2 "the/this Agreement" shall mean this memorandum of agreement together with all schedules,addendums thereto as well as all amendments effected in terms of clause 21 below;
1.3 "call charge" shall mean the charge for a specified unit of time or data, as the case may be, as set out in the Tariff from time to time;
1.4 "the Cellphone Number" shall mean the Mobile Station Integrated Services Digital Network Number allocated to the Customer for the purposes of making use of the Services;
1.5 "Cellular Phone" shall mean the Customer's mobile, portable or transportable cellular terminal or other device which is capable of connection by radio interface to the Network;
1.6 "the Customer" shall mean the person entering into this agreement with INTELLICELL and who is more fully described in the application and/or order form and if such person is a natural person then it shall include the administrator or executor of such person's deceased estate."
1.7 "the Network" shall mean the public mobile telecommunications system operated and made available by Vodacom or MTN or Cell C;
1.8 "Pre-Paid Account" shall mean an account held by Vodacom or MTN or Cell C on behalf of the Customer which, when credited with a predetermined value of airtime purchased by the Customer, enables the Customer to utilize the Services until such airtime is depleted;
1.9 "Regulatory Authority" shall mean the Independent Communication Authority South Africa (ICASA) and its successors in title;
1.10 "the Services" shall mean the telecommunications service provided by means of the network as well as such other additional services or equipment as INTELLICELL may, at its sole option, make available to the Customer from time to time, pursuant to these terms and conditions;
1.11 "SIM card" shall mean the Subscriber Identity Module Card allocated to the Customer to enable the Customer to gain access to the Network;
1.12 "Subscription Fee" shall mean the monthly fee payable by the Customer in respect of access to the Network by means of the Customer Number;
1.13 "the Tariff" shall mean the tariff of charges and fees payable to INTELLICELL in respect of the Services, as published by Vodacom or MTN or Cell C from time to time;
1.14 "Top-Up Tariff Plans" shall mean, collectively, the Business Top-Up Package, the Family Top-Up Package, the Top-Up 590 Package and the Top-Up Lite Package and any other package incorporating a top-up component which may be offered by INTELLICELL from time to time;
1.15 "Upgrade" shall mean the transaction, effected at the expiry of the initial period, in terms of which INTELLICELL may supply to the Customer a new Cellular Phone against payment of any charges therefor and the simultaneous renewal of this Agreement for a further minimum period of 24 (twenty four) months by the Customer ("the Renewal Period");
1.16 "Vodacom shall mean Vodacom (Pty) Ltd; MTN shall mean MTN Network Operator Ltd and Cell C shall mean Cell C (Pty) Ltd;
1.17 "INTELLICELL" shall mean Intellicell CC with whom the Customer has entered into this Agreement for the provision of the Services;
1.18 words denoting any one gender shall include the others, the singular shall include the plural and natural persons shall include other legal entities.

2. PROVISION OF THE SERVICES

Subject to this Agreement, INTELLICELL shall activate the SIM card and maintain the availability of the Services to the Customer throughout the duration of this Agreement.

3. DURATION

3.1 This Agreement will commence on the Activation Date and, subject to the terms of this agreement, shall continue for 24 (twenty four) months ("the Initial Period") and thereafter until terminated by either party on not less than 1(one) calendar month's written notice.
3.2 This Agreement may be terminated by either party on not less than 1 (one) calendar month's notice except that no notice may be given so as to require termination -
3.2.1 prior to the expiry of the Initial Period; and/or
3.2.2 where an upgrade has been effected by the Customer, prior to the expiry of the Renewal Period.

4. CHARGES AND PAYMENT

4.1 The first month's Subscription Fee may be due and payable by the Customer to INTELLICELL in full on the Activation Date and the balance of the Subscription Fees shall be due and payable to INTELLICELL by the Customer as specified on INTELLICELL's invoice therefore but in any event by no later than the last working day of each and every subsequent month until expiry of the Initial Period and/or Renewal Period, as the case may be.
4.2 In the case of a tariff plan other than a Top-Up Tariff Plan -
4.2.1 the Customer will pay to INTELLICELL all charges incurred in respect of the Cellphone Number(s) within 14
(fourteen) days of date of INTELLICELL's invoice;
4.2.2 INTELLICELL may impose monetary limits on the maximum value of charges incurred by the Customer in relation to the Services provided by INTELLICELL during any one billing period. Should the Customer exceed such maximum value then INTELLICELL may suspend the Services to the Customer until the value of such maximum amount as well as any other charges that may be due, have been paid in full.
4.2.3 In addition, INTELLICELL reserves the right to impose a monetary limit on the maximum value of call charges incurred by the Customer during any one billing period in the amount set out in the application and/or order form.
4.2.4 Notwithstanding clauses 4.2.2 and 4.2.3, should the charges billed to the account of the Customer, exceed the monetary limits imposed by INTELLICELL, the Customer shall remain liable to pay INTELLICELL any and all charges incurred whether in excess of the said limits or not.
4.3 In the case of a Top-Up Tariff Plan, -
4.3.1 on the first day of each month or as stipulatated by the Network for the duration of this Agreement, Vodacom or MTN or Cell C shall automatically recharge the Customer's Pre-Paid Account with airtime to the value of the Subscription Fee, provided that such airtime shall not be available for use by the Customer if he is in arrears with the payment of his Subscription Fees.
4.3.2 in addition to the airtime value allocated to the Customer's Pre-Paid Account pursuant to the provisions of clause 4.3.1 above, the Customer shall also be entitled to recharge his Pre-Paid Account at any time by utilizing any of Vodacom or MTN or Cell C's existing recharge mechanisms on such terms and conditions applicable to such recharges, provided that in the event that the Customer is in default with the payment of his Subscription Fee(s), then notwithstanding that he recharges his Pre-Paid Account, the airtime allocated to the Pre- Paid Account pursuant to such recharge shall:
4.3.2.1 not be available for use by the Customer until he has paid all outstanding Subscription Fees;
4.3.2.2 not be set-off against any outstanding Subscription Fees.
4.3.3 In the event that the Customer pays INTELLICELL more than what is due in respect of the Subscription Fees, such additional amounts paid shall not be allocated to the Customer's Pre-Paid account but shall either:
4.3.3.1 be set-off against the following month's Subscription Fees; or
4.3.3.2 be refunded, free of interest to the Customer, if at the end of the term of this Agreement his Subscription Fees are fully paid up and all his obligations hereunder have been fully discharged.
4.3.4 Each month for the duration of this Agreement the Customer shall be entitled to carry over to the following month the:
4.3.4.1 unused portion of airtime value accrued pursuant to any additional recharges he may have performed; plus
4.3.4.2 any unused portion of the airtime value accrued pursuant to the payment of the Subscription Fee(s), provided that any such airtime may not exceed the equivalent of 5 (five) times the Subscription Fee, excluding the current month, or such other period as INTELLICELL may specify from time to time in its sole discretion.
4.4 The Customer will also pay to INTELLICELL all other charges relating to any other service, incurred in respect of the Services and/or any Cellular Phone or other equipment purchased by the Customer from INTELLICELL within 14 (fourteen) days of date of INTELLICELL's invoice.
4.5 Prior to the activation of the Customer's Cellphone Number on the Network, INTELLICELL shall be entitled to require the Customer to pay to it a deposit in an amount which INTELLICELL in its discretion deems fit. Such deposit shall be paid by the Customer in cash and shall be retained by INTELLICELL as security and may be appropriated either wholly or in part towards payment of any amount that may be due by the Customer to INTELLICELL. The deposit or any balance thereof,as the case may be shall be refunded, free of interest, to the Customer after all his obligations hereunder have been fully discharged.
4.6 Any amount due by the Customer to INTELLICELL that is not paid on due date therefore shall bear interest at a rate equal to the maximum rate allowable in terms of the Usury Act, 1968, calculated from the due date to the date of actual payment. In addition, should any payment instrument tendered by the Customer or amount drawn by INTELLICELL in terms of a debit order authority not be met by the Customer's bankers, INTELLICELL reserves the right, in its sole discretion, to levy a fee in regard thereto.
4.7 A computerised account or a certificate signed by a Credit Manager of INTELLICELL, (whose designation need not be proved), setting out the amount due by the Customer to INTELLICELL shall be prima facie proof of such amounts as well as the due date thereof.
4.8 In the event of the termination of this agreement prior to the expiry of the Initial Period as specified in clause 3 above, or the Renewal Period, as the case may be, INTELLICELL shall have the right to claim immediate payment of all and any outstanding charges owing to INTELLICELL and the Customer shall be obliged to effect payment of the amount so claimed and the provisions of clause 15.2 below shall mutatis mutandis apply.
4.9 The charges levied by INTELLICELL may vary from time to time and the Customer shall be bound to pay such varied charges with effect from the date of publication thereof by either INTELLICELL and/or Vodacom or MTN or Cell C.
4.10 The charges levied by INTELLICELL in respect of any telecommunications services shall not exceed the tariff published by Vodacom or MTN or Cell C from time to time. The charges levied by INTELLICELL in respect of any additional services or in respect of any Cellular Phone or other equipment purchased by the Customer, that are not subject to Vodacom or MTN or Cell C's tariff, shall be in accordance with INTELLICELL's standard charges as published and amended from time to time.
4.11 If so required by INTELLICELL in its sole discretion the Customer shall effect payment of all amounts due to INTELLICELL by means of a direct debit order against the Customer's banking account. The Customer shall not be entitled to withdraw or revoke the authority of INTELLICELL to draw against its banking account during the currency of this agreement without the written consent of INTELLICELL.
4.12 If so required by INTELLICELL in its sole discretion the Customer shall effect payment of all amounts due to INTELLICELL by means of a payroll deduction. The Customer shall not be entitled to withdraw or revoke the authority of INTELLICELL to draw against its payroll during the currency of this agreement without the written consent of INTELLICELL.
4.12 All fees, charges and prices set out in this Agreement and/or any price list from time to time are exclusive of Value Added Tax which shall additionally be borne and paid for by the Customer at the prevailing rate from time to time unless otherwise stated.

5. MIGRATION AND CONVERSION

5.1 Save as otherwise determined from time to time by INTELLICELL in its sole discretion, the Customer may be entitled to convert to any other standard Tariff excluding any special discounted Tariffs, offered by INTELLICELL from time to time provided that-
5.1.1 any charge levied by INTELLICELL in respect thereof has been paid by the customer; and
5.1.2 all relevant documents required by INTELLICELL have been signed by the Customer indicating acceptance of any terms and conditions applicable thereto.
5.2 In the event that the Customer migrates from a tariff plan which includes free bundled minutes to a tariff plan which does not include bundled minutes, all accumulated free minutes may be forfeited and the Customer shall have no claim of whatsoever nature against INTELLICELL in respect thereof.
5.3 Notwithstanding the provisions of clause 5.1 above the Customer shall not be entitled to convert to standard prepaid tariff plan without the prior written consent of INTELLICELL.

6. BUNDLED MINUTES

The Customer acknowledges and agrees that should the Tariff Plan selected incorporate any bundled minutes, then -
6.1 upon migration from such Tariff Plan to any other Tariff Plan incorporating bundled minutes, a conversion factor determined by INTELLICELL in its sole discretion will be applied in order to determine the number of bundled minutes which will be carried over to the new Tariff Plan; and
6.2 upon termination of this Agreement for any reason whatsoever, the provisions of clause 15.6 below shall mutatis mutandis apply; and
6.3 all airtime used by the Customer will be applied first against the Customer's most recent allocation of bundled minutes; and
6.4 any accumulated and unused bundled minutes may expire after 5 (five) months.

7. VALUE-ADDED SERVICES

The Customer acknowledges and agrees that -
7.1 should he subscribe to any additional service(s) provided by INTELLICELL ("value-added service(s)"), the provision of such value-added service(s) by INTELLICELL will be subject to INTELLICELL's standard terms and conditions applicable thereto from time to time with which the Customer undertakes toacquaint himself; and
7.2 should he subscribe to Tariff Plan which includes the mandatory subscription to any value-added service(s), such subscription to those value-added service(s) may not be terminated prior to the expiry of the Initial Period or the Renewal Period, as the case may be.

8. RISK AND OWNERSHIP

8.1 In the event of the Customer purchasing a Cellular Phone at a subsidised price or obtaining a Cellular Phone free of charge from INTELLICELL, then -
8.1.1 all risk in and to the Cellular Phone shall pass to the Customer upon delivery thereof; and
8.1.2 ownership of such Cellular Phone shall vest in INTELLICELL for the duration of the Initial Period.
8.2 Ownership of the SIM card and Cellphone Number allocated to the Customer shall, at all times, remain vested in INTELLICELL. All risk in and to the SIM card shall pass to the Customer upon delivery thereof.
8.3 The provisions of clause 8.1 shall apply mutatis mutandis to the Renewal Period where an Upgrade has been effected.

9. LISTING OF CELLULAR PHONE(S)

9.1 Should the Customer default in any of his/her payment obligations during the Initial Period or the Renewal Period, as the case may be, then INTELLICELL shall be entitled to prevent the further use of the Customer's Cellular Phone and the Customer indemnifies INTELLICELL in respect of any claim whatsoever arising from INTELLICELL exercising its right in terms hereof.
9.2 In the event of the theft or loss of a Cellular Phone, the Customer shall be entitled to request INTELLICELL to list such Cellular Phone on the greylist or the blacklist as determined by the prevailing policy of INTELLICELL from time to time. INTELLICELL shall effect such listing provided that all required information has been supplied by the Customer.
9.3 For the purposes of this clause 9, "blacklist" shall mean the disablement by electronic or other means, of a Cellular Phone, thereby preventing its further use and "greylist" shall mean the flagging of the Cellular Phone on the Network to enable the Cellphone Number of the user of such Cellular Phone to be identified to facilitate the possible tracing and recovery thereof by the Customer.
9.4 In the event of the theft or loss of a Cellular Phone, the provisions of clause 16.2 below shall mutatis mutandis apply.
9.5 INTELLICELL shall be entitled to levy a reasonable charge for the listing referred to in clause 9.2 above and/or the removal of a Cellular Phone from the greylist or the blacklist, as the case may be.

10. DISCLOSURE OF INFORMATION

10.1 INTELLICELL may, to the extent permitted by law, receive or disclose the Customer's personal information, documents, detailed call records, credit profile information and/or any other credit information from or to -
10.1.1 any credit providers, credit bureau or credit reporting agencies;
10.1.2 any law enforcement agencies that require the information for the prevention or investigation of criminal activities;
10.1.3 any of INTELLICELL's shareholders, related entities, suppliers, agents or professional advisors for reporting, accounting, product supply and service, marketing and/or auditing purposes;
10.1.4 Vodacom or MTN or Cell C or any subsidiary or holding company of Vodacom or MTN or Cell C for any purpose connected with the Services or the Network or for marketing or incentive scheme purposes.
10.2 Notwithstanding anything to the contrary herein contained, INTELLICELL shall be entitled to utilize the Customer's detailed call records for tracing and/or collection purposes.

11. CUSTOMER ACKNOWLEDGEMENT

The Customer acknowledges and agrees that -
11.1 Service quality and coverage available to the Customer shall be limited to that provided by the Network and the Services may, from time to time, be adversely affected by physical features such as buildings and underpass, as well as atmospheric conditions and other causes of interference; and
11.2 he/she shall not hold INTELLICELL liable for any non-availability of the Services.

12. LIABILITY

12.1 The Customer indemnifies and holds Vodacom or MTN or Cell C and INTELLICELL harmless against any expense, loss, claim, harm or damage brought against, suffered or sustained by either Vodacom or MTN or Cell C or INTELLICELL, which arises directly or indirectly out of a breach of the terms of this agreement either by INTELLICELL or the Customer or by the use by the Customer of the Services and/or the Cellular Phone, irrespective of the cause thereof.
12.2 Neither INTELLICELL nor Vodacom or MTN or Cell C shall be liable to the Customer for any loss from any cause whatsoever and the Customer shall not be entitled to bring any claim or action against INTELLICELL or Vodacom or MTN or Cell C caused by any action or omission of INTELLICELL or Vodacom or MTN or Cell C.
12.3 Without affecting the generality of 12.1 above, INTELLICELL shall not be liable to the Customer for any breach of this Agreement or failure on INTELLICELL's part to perform any obligations as a result of technical problems relating to the Network, termination of any license to operate or use the Network, act of God, government control, restrictions or prohibitions or other government act or omission, whether local or national, act of default of any supplier, agent or sub-contractor, industrial disputes or any other cause beyond the control of INTELLICELL.

13. CUSTOMER UNDERTAKINGS

The Customer shall -
13.1 comply with all instructions issued by INTELLICELL which concern the Customer's use of the services, the Cellular Phone or related matters; and
13.2 provide INTELLICELL with all such necessary information as INTELLICELL may, in its sole discretion, require; and
13.3 only use a Cellular Phone which is approved for use in conjunction with the Network by INTELLICELL.

14. SUSPENSION / DISCONNECTION

14.1 INTELLICELL may from time to time and without notice to the Customer, suspend the Services or disconnect from the Network the Customer's Cellphone Number, in any one of the following circumstances:
14.1.1 during any technical failure, modification or maintenance of the Network; or
14.1.2 if the Customer fails to comply with any of the terms and conditions of this Agreement; or
14.1.3 if so directed by the Regulatory Authority; and in such event, the provisions of clause 12.2 and where applicable, clause 15.6 below shall mutatis mutandis apply.
14.2 Having regard to the circumstances at the time of suspension, disconnection or reconnection
14.3 Where this agreement is terminated at the instance of the Customer in the Customer's Cellphone Number at any time on the relevant date of cancellation whereupon the provisions of clause 15.6 shall mutatis mutandis apply and the Customer shall have no claim of whatsoever nature against INTELLICELL pursuant to the exercise of INTELLICELL of the right conferred hereunder.

15. TERMINATION

15.1 In the event that the Customer breaches any term of this Agreement, then without prejudice to INTELLICELL's other rights in terms of this Agreement or at law, INTELLICELL may forthwith and without notice to the Customer, terminate this Agreement or call for specific performance of the Customer's obligations and immediate payment of all sums owing by the Customer.
15.2 The Customer shall pay to INTELLICELL all charges for access to the Network in respect of the unexpired portion of the contract period. The payment of such charges shall be accelerated and same shall become immediately due and payable upon termination of this Agreement.
15.3 INTELLICELL may elect to charge a reasonable fee for disconnection of the Customer's Cellphone Number from the Network.
15.4 The Customer shall repay to INTELLICELL on demand all costs which INTELLICELL incurs as a result of the Customer's failure to comply with the terms and conditions of this Agreement or any cancellation hereof, which may include -
15.4.1 costs in connection with the tracing of the Customer and/or the Cellular Phone; and
15.4.2 all legal costs on the attorney and own client scale; and
15.4.3 collection commission that may legally be recovered from the Customer by INTELLICELL's attorneys or collection agents on amounts collected; and
15.4.4 the costs incurred in obtaining possession of the Cellular Phone(s) as well as the cost relating to the valuation, removal, transport, repair, maintenance and storage thereof; alternatively
15.4.5 the replacement cost of the Cellular Phone(s).
15.5 It shall be in the sole discretion of INTELLICELL as to whether it elects to levy the replacement cost of the Cellular Phone(s) or the charges referred to in clause 15.4.4 above.
15.6 Any accumulated airtime or unused bundled minutes existing at the termination and/or cancellation of this Agreement shall be forfeited and the Customer shall have no claim of whatsoever nature against INTELLICELL in respect thereof.

16. LOSS OR THEFT OF SIM CARD

16.1 The Customer shall notify INTELLICELL immediately that he/she becomes aware of the loss or theft of his/her SIM card, which notification may, at INTELLICELL's discretion, be required to be confirmed in writing.
16.2 Any loss, theft, damage or destruction of the Customer's SIM card shall not affect the liability of the Customer to continue to pay the Subscription Fee to INTELLICELL for the duration of this Agreement.

17. POLICIES AND PROCEDURES OF INTELLICELL

The Customer agrees to comply with and implement the policies and procedures of INTELLICELL from time to time in relation to the Services, his/her Cellphone Number, his/her SIM card, the Network and the use thereof.

18. COMPLAINT RESOLUTION AND CODE OF PRACTICE

In the interest of providing customer service excellence, and the protection of consumer rights, INTELLICELL conducts its business in accordance with a Code of Practice which incorporates a procedure for customer complaint resolution.

19. SET OFF

The Customer shall not be entitled to withhold any payment or set off or reduce any payment by reason of any claim which the Customer may have or aver to have against INTELLICELL.

20. ASSIGNMENT

The Customer shall not cede, assign, transfer, encumber or delegate any of his/her rights or obligations in terms of this Agreement to any third party without the prior written consent of INTELLICELL.

21. VARIATION

INTELLICELL reserves the right, in its sole discretion, to vary the terms and conditions of this Agreement. INTELLICELL may elect, in its sole discretion, to notify the Customer of such variation in writing or to publish such variation at its principal place of business.

22. WHOLE AGREEMENT

This Agreement constitutes the whole agreement between the parties and no representations or warranties other than those set out herein shall be binding on the parties, save for any amendment effected in terms of clause 21 above.

23. NOTICES AND DOMICILIA

23.1 The Customer chooses as his/her domicilium citandi et executandi, the address set out in the application or order form or such other address of which the Customer may notify INTELLICELL in writing provided such address is not a post office box or poste restante.
23.2 All notices given in terms of this agreement shall be in writing.

24. INSURANCE

24.1 In the event of the Customer entering into an insurance agreement with INTELLICELL, the Customer will be exempt from payment of any of the charges in terms of this Agreement for a period of six months in the following circumstances and from the happening of such event:-
24.1.1 termination of the customer's employment as a result of retrenchment.
24.1.2 Disablement of the customer, which prevents the Customer from continuing employment.
24.1.3 Death of the customer
24.2 In the event of the Customer resuming employment, the Customer will be liable for payment of all charges in terms of this Agreement from the date of the customer's resumption of employment and such customer must immediately notify INTELLICELL of the resumption of such employment. The customer's failure to do so may result in INTELLICELL invoking the provisions of clause 15 hereof, at its sole discretion."

24. SEVERABILITY

In the event of any one or more of these terms and conditions being unenforceable, same will be deemed to be severable from the remainder of this Agreement which shall nevertheless be binding and enforceable.