Terms & Conditions of Business
In these Terms, unless the context otherwise requires, the following definitions shall apply:
“Access Devices” means all and any devices prescribed by Afrimax as the medium through which the Services are provided to the end customer, including indoor CPE (or Router Device) and outdoor CPE (or Router Device).
“Advertisement(s)” means any illustrative, text, image, video or other marketing or promotional material sent or made available to you about Afrimax products and services and/or third party products and/or services.
“Afrimax”, “we” or “us” means Afrimax Limited and its successors and or permitted assigns.
“Charges” means the charges payable by you for use of the Services, as set forth on the Subscriber Form.
“Network” means the telecommunications network operated by us and covering those geographic areas as stipulated by us from time to time.
“Services” means the provision of Internet services by us.
“Service Plan(s)” means the service plan chosen by you and indicated on the Subscriber Form.
“Subscriber Form” means the subscriber form to which these Terms are attached.
“Terms” means these terms and conditions, as amended from time to time in accordance with the provisions set forth herein.
“You” means the customer identified on the Subscriber Form.
1. Commencement and Implementation
1.1 By signing the Subscriber Form, you agree that these Terms constitute a binding and legally enforceable agreement between you and Afrimax. These Terms are attached to, and form an intrinsic part of, the Subscriber Form.
1.2 These Terms shall take effect immediately upon you signing the Subscriber Form.
2. Skill and Care
2.1 Afrimax shall use its best endeavours to supply you with the Services according to the standard of skill and care expected of a competent Internet service provider in Malawi. Our Services are only available in our coverage area. Details of our coverage area are available on request.
2.2 You acknowledge that due to the nature of the relevant technology, it is impossible to provide fault-free Services as these will be affected by factors outside the control of Afrimax. We will use our best efforts to promptly resolve any service outage or query from you. We shall not be responsible for any failure due to force majeure.
2.3 If you encounter any problem with the Services you will contact us at the relevant numbers set forth on the Subscriber Form.
3. The Services
3.1 We may change or withdraw the Services (or part thereof) at any time, with or without notice and without any liability to you. Where possible we will give reasonable notice of these changes.
3.2 We accept no responsibility for any content or services you may view or use by using our Services to access the Internet.
3.3 Please note that the confidentiality of communications via the Network is not guaranteed. You are advised that for reasons beyond our control, there is a risk that your communications may be unlawfully intercepted or accessed by persons, entities or organizations other than the intended recipient. We cannot accept any liability for any loss, injury or damage whatsoever, whether direct or consequential or otherwise, arising out of any such compromise of confidentiality.
3.4 Access to the Services may be controlled from time to time by limiting the volume or speed or duration of downloads to facilitate fair access to the Services by all customers.
3.5 We may send to you Advertisements in respect of services or products of other third parties from time to time and, where possible, we will give you an opportunity to opt out of such Advertisements.
3.6 For your own protection, you must keep confidential all personal identification or security numbers used with the Services.
4. Service Use
4.1 The Services are not for general commercial use, re-sale, rent or lease and any such use thereof is prohibited absolutely.
You must comply with any instructions that we may give you from time to time about the use of the Services.
4.2 You shall not misuse the Services, including but not limited to:
(a) dishonestly obtaining the Services;
(b) possessing or supplying equipment that may be used to obtain such Services dishonestly or fraudulently;
(c) using the Services to send or spread information, using messages or emails or any other medium, that are abusive, fraudulent, criminal, obscene, threatening, a nuisance, or which are otherwise contrary to applicable laws or regulation, or
(d) selling all or any part of the Services to any other person.
4.3 Afrimax strictly prohibits the use of its Services to generate spam or other forms of abuse either for business or any other purpose. Such forms of abuse include, but are not limited to: threats and/or harassment, privacy issues, redistribution of services (ftp, www, etc.), copyright and trademark issues, hacking, port scanning, spreading virus, denial of service attacks, password cracking and unauthorized access, credit card fraud, publication and transmission of pornography, product/ service fraud, financial solicitation, make money fast chain letters, general fraud or theft, other illegal activities etc.
4.4 If you violate any of the above Terms, we reserve the right to disconnect the Services(s) and suspend or terminate the account permanently and in our sole discretion without prejudice to any other action under the laws of Malawi or any other jurisdiction.
4.5 You are solely responsible for any transmitted material and/or communication which is classified as illegal, defamatory, misleading or which breaches any person(s) right(s) and you shall keep us indemnified for any claims and expenses made against us in respect thereof.
4.6 Use of the Services is subject to the following fair usage policy (“FUP”):
(a) You must use the Services in a reasonable manner. We reserve the right to monitor and control Service usage and/or types of traffic transmitted on the Network. In certain circumstances, for example consistent heavy use of the Services, we may limit access bandwidth and Network resources in our endeavour to provide best possible broadband Internet experience to all our customers.
(b) FUP is applicable to all Service Plans in force now or in the future, as offered by us, unless specifically withdrawn, excluded or modified at our sole discretion.
(c) Despite the above, if you are found intentionally violating FUP, for example by continuing your Services with unreasonable levels of use, we reserve the right to increase the Charges or suspend or terminate your account immediately, without prior notice and without prejudice to any other rights available under these Terms.
5. Access Devices
5.1 You will arrange suitable access to your premises to allow us to install the Access Device(s) (where necessary) and to undertake any required maintenance work from time to time. You will arrange suitable and stable power for the installed Access Device(s) at your premises and will ensure that proper earthing is in place at all times at the premises hosting the Access Device(s).
5.2 If you have purchased any Access Device from us that is found to be faulty or defective, you will need to immediately return the Access Device to us, within seven (7) days of purchase.
5.3 You are responsible for anyone who uses your Access Devices.
5.4 Any damage to the Access Device(s) caused by power surge, lightning, vandalism or theft shall be your responsibility.
5.5 You are advised to read and understand any manufacturer’s instructions for use of the Access Devices. Subject to the applicable laws, we will not accept liability for any malfunction of the Access Devices, injury, loss of data or damage to the Access Devices or to your own hardware or software.
6. Charges and Payment
6.1 The purchase price, or rental cost, of your Access Device(s) shall be payable by you in advance of you accessing the Services.
6.2 The applicable Charges shall be payable by you in advance on a monthly basis, no later than the 1st day of every calendar month (a “Due Date”). Afrimax shall deliver to you an invoice no later than ten (10) days prior to the commencement of a calendar month. Invoices shall be sent to the address set forth on the Subscriber Form, and shall be paid in accordance with the instructions set out on the invoice. Any dispute in relation to your invoice must be notified by you to Afrimax within five (5) days of receipt.
6.3 The Charges for your elected Service Plan are set forth in the Subscriber Form. These Charges may be varied by us from time to time. We will provide you notice of any variation to the Charges. Unless otherwise provided therein, the Charges include Excise Duty and Value Added Tax (if and where applicable) but may also be subject to other applicable levies and taxes at the prevailing rates, as amended from time to time.
6.4 In the event of an incorrect bill being issued by Afrimax to you, we reserve the right to recover subsequently from you the correct amounts due, as soon as practicable for Afrimax after the error is detected but no later than two (2) months after the issuance of the incorrect invoice.
7.1 Subject to paragraph 8, we will continue to supply the Service(s) to you until you end your subscription in accordance with these Terms.
7.2 To end your subscription, you must give us thirty (30) days’ notice in writing, which notice must include your name, physical address and email address. You must pay all applicable Charges during this notice period.
7.3 Without prejudice to paragraph 8.1, Afrimax may end this agreement at any time on not less than thirty (30) days’ notice in writing to you.
8. Suspension and Disconnection of the Services
8.1 We may suspend (bar) restrict or terminate the provision of Services (in whole or in part) without any liability whatsoever (although, where possible, we will endeavour to inform you that such action is or may be taken) under the following circumstances:
(a) If we are aware or have reason to believe that your Access Devices or the Services are being used in an unauthorized, unlawful or fraudulent manner or in any manner that is not permitted under these Terms (or has been so used previously).
(b) If any Charges remain unpaid by you for more than ten (10) days following a Due Date.
(c) If you do not comply with any of the conditions relating to any part of the Services (including these Terms).
(d) If we believe you are sending data which is classified in our sole opinion as being illegal, a nuisance, abusive, a hoax, menacing or indecent.
(e) Without prejudice to any other remedy we may have, if we are aware or have reason to believe that you have paid any Charges and/or invoice by using any fraudulent or illegal means, including but not limited to paying or attempting to pay using a stolen or otherwise barred or false debit or credit card or if the debit or credit card transaction is at some time charged back to us.
(f) If you do anything (or allow anything to be done) with your Access Devices which we think may damage or affect the operation or security of the Network or Services.
(g) If we are required to do so by any law or regulation.
(h) For reasons beyond our control.
8.2 Where we have suspended or restricted access to the Services for any of the above reasons any reconnection is at our discretion, and a reconnection fee may be charged.
9.1 We may make changes to these Terms from time to time for any reason, including without limitation to introduce new terms from time to time to reflect changes to the law or to the terms of our telecommunications license. The current Terms in force at any given time will be available on our website at www.afrimax.mw.
9.2 By continuing to use the Services, or any part thereof, you shall be deemed to have agreed to any changes, amendments, additions and/or modifications contemplated in paragraph 9.1 above. If you do not wish to accept such changes, amendments, additional and/or modifications, you must not use the Services and you must end your subscription in accordance with paragraph 7.2.
10.1 Any notices that we wish to send to you from time to time (including but not limited to variations to these Terms, modifications or variations to the Services or Tariffs, any promotions and other information) will be published on our website or delivered to you at the physical or email addresses specified on the Subscriber Form. You shall be deemed to have been duly notified regardless that the same may actually come to your attention.
11. Indemnity, Liability and Exclusions
11.1 You agree to indemnify us for and against all claims, expenses, losses, liabilities and costs incurred as a result of you (a) breaching any provision of these Terms, and (b) using the Access Devices and accessing the Network.
11.2 Except for as set forth in paragraph 11.4 below, we shall not be liable to you in any manner whatsoever, including for any losses or liabilities relating to:
(a) Our supply and provision of the Services.
(b) Any failure to provide all or any of the Services because of any event outside our control.
11.3 To the maximum extent permitted by law we hereby exclude representations and warranties of all kinds, whether express or implied.
11.4 For the avoidance of doubt, these Terms will not affect any rights that you may have under applicable laws and which we are legally unable to exclude by agreeing it with you.
12.1 Afrimax may transfer, assign and/or novate our agreement with you, including these Terms, and all its rights, benefits and (to the extent permitted by law) its obligations thereunder, to any other person or entity at any time in its sole discretion.
12.2 If a provision or part of a provision in these Terms is illegal, invalid or unenforceable, that provision or part provision shall be treated as having been modified to the minimum extent necessary to make it valid, legal and enforceable and to ensure it achieves the intended commercial result of the original provision. If modification is not possible, the relevant provision or part provision shall be deleted. Any modification or deletion shall not affect the validity of the rest of these Terms.
12.3 Afrimax shall not lose any right under these Terms if it fails to use that right or in using it.
12.4 The Subscriber Form together with these Terms (as may be amended from time to time) represents the entire agreement between us and you relating to the subject matter and supersedes any previous agreement relating to the subject matter. You have not relied on any warranty, representation, understanding, statement or other communication whether written or otherwise other than as expressly set out herein.
13. Governing Law and Jurisdiction
13.1 The Subscriber Form and these Terms are governed and shall be construed in accordance with the laws of Malawi.
13.2 The Courts of Malawi shall have exclusive jurisdiction over the Subscriber Form and these Terms.