- DEFINITIONS

• “Acceptance Date” means the date on which the customer accepted this agreement.
• “Activation Date” means the date on which IT Guru Solutions will give the customer access to and/or enable the customer to use a product or service;
• “Acceptable Use Policy” (AUP) means the policy, which is available on the Website and is incorporated by reference in this Agreement, that regulates the use of the services;
• “Agreement” means this agreement entered into between the customer and IT GURU;
• “IT GURU” means Information Technology Guru Solutions CC, Registration number CC/2011/5393;
• “Business Day” means Monday to Friday, but excludes Saturdays and a day which is an official public holiday in the Republic of Namibia;
• Business Hours” means the hours between 08h00 and 17h00 on a Business Day;
• “Customer” means a user or host of any IT GURU services;
• “Equipment” means any device, equipment or hardware used to access the services or used in conjunction with the services;
• “CRAN” means the Communications Regulatory Authority of Namibia;
• “Juristic person” means a company or close corporation and includes a body corporate, partnership, association or trust;
• “Services” means any IT GURU internet access package and any other related internet services;
• “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 2000;
• ”Website” means itgurusolutions.com/www.giganet.com.na

2. BINDING AGREEMENT
   • Customer agrees to be bound by this agreement and to use the services in compliance with the terms of this agreement and with IT GURU’s acceptable usage policy which can be found at http://www.giganet.com.na/acceptable-usage-policy and which may be modified from time to time.
   • The details recorded on the sales order, together with these conditions of contract shall form the basis of a binding contract between the parties.

3. THE CUSTOMER
   • Customer warrants that it is legally able to enter into this agreement and Customer shall pay all fees, taxes, charges and other expenses incurred in connection with the service.

4. DURATION, TERMINATION AND COOLING-OFF
   • The agreement will commence on the acceptance date and endure indefinitely until it is cancelled as provided for in this clause 4, or otherwise provided in this agreement. In the event that the services applied for is not activated within 30 (thirty) days of the acceptance date due to an uncontrollable event, the agreement will automatically terminate and no party shall have any liability to the other as a result of such termination for Wireless Internet Connections. For Fiber installations if not activated within 60 (sixty) days.
   • For Wireless Internet Connections: The customer may terminate this agreement by giving 1 (one) calendar month’s written notice to IT GURU.
   • For Fiber Connections:In the event of early termination, the Customer shall be liable for a cancellation penalty. This cancellation penalty will consist of the monthly service fees in respect of the service period up to and including the expiry date of the service period, or any extension thereof.
   • For Fiber Connections: In the event of a relocation, a minimum installation fee of N$ 2500 is application. 
   • IT GURU may cancel this agreement by giving 1 (one) calendar month’s written notice to the customer.
   • Notwithstanding the termination of the agreement, in the event that the customer continues to use the services despite the termination of the agreement, the customer will remain liable for and promptly pay on demand all amounts that would have been due to IT GURU as a result of the use of or access to the services and this agreement shall be deemed to continue to apply until such time as all amounts due to IT GURU have been paid in full.
   • If customer is dissatisfied with the services or any related terms, conditions, rules, policies, guidelines, or practices; Customer’s sole remedy is to discontinue using the services and to terminate this agreement.
   • Upon cancellation or otherwise upon termination of this agreement, related email and hosting services will be terminated and all customer files and information stored on IT GURU servers may be deleted. IT GURU may terminate this agreement, customer password, customer account, or customer use of the services for any reason, including, without limitation, if IT GURU, in its sole discretion, believes customer has violated this agreement or if customer fails to pay any charges when due.
   • IT GURU may terminate this agreement immediately if customer is subject to insolvency, receivership, liquidation or any similar proceedings, or in IT GURU’s exclusive opinion is unable to pay fees due to IT GURU.
   • CUSTOMER UNDERSTANDS THAT UNLESS WRITTEN NOTIFICATION IS RECEIVED BY IT GURU, THE SERVICE SHALL CONTINUE AND CUSTOMER WILL CONTINUE TO BE RESPONSIBLE FOR PAYMENT OF APPLICABLE SERVICE FEES.

5. CUSTOMER ACKNOWLEDGEMENTS REGARDING THE SERVICE
   • While IT GURU will undertake all reasonable commercial efforts to deliver the stated services, the customer acknowledges that service speed can vary depending on internet traffic and other factors beyond the control of IT GURU.
   • The services may grant access to material that is unsuitable for minors and customer acknowledges that IT GURU does not and cannot filter content.
   • Customer acknowledges that in order to provide the services, IT GURU will base their decision if feasible via a technical site survey and business case, and may contract with 3rd party communications and network operators for last mile Internet access if not possible from IT GURU’s core network. Customer further acknowledges that IT GURU will only provide uninterrupted continuous services to customer pursuant to this agreement to the extent which IT GURU receives such services from linked communications and network operators.
   • Customer acknowledges that the services operate in a license-exempt frequency spectrum on non-interference to other systems; there is no legal protection from interference from other systems or service operators operating within this spectrum. IT GURU will make all reasonable commercial efforts to liaise with other operators to minimize any interference to customer; however, such interference if present may have an impact on the availability and quality of service received. Similarly, IT GURU is obliged to and hereby reserves the right to terminate services to customer where interference is caused to other systems. Customer may terminate this agreement where IT GURU is unable to rectify or eliminate interference or frequency spectrum related issues within 30 days of notification of said issues.
   • Customer acknowledges and agrees that from time to time IT GURU may be required to temporarily suspend the services to customer to verify compliance with applicable licenses, authorizations, and compliance with the technical and operating parameters of the network. Under such circumstances IT GURU will use all reasonable commercial efforts to minimize disruption to the services including making reasonable efforts that any such suspension takes place out of normal business hours.
   • Customer accepts that IT GURU may change or withdraw any element of the services from time to time and will use all reasonable efforts to notify customer of any necessary change in the services.
   • Customer acknowledges that the services are an ‘always open’ connection to the internet while the equipment is powered on and that it is customers SOLE RESPONSIBILITY to install, configure and maintain suitable security measures to protect customer’s computer and equipment from unauthorized or malicious access from the internet. Any advice given by IT GURU is provided ‘as is’ and IT GURU accepts no responsibility or liability for the security of customer’s systems.
   • Customer acknowledges that the bit rates quoted in respect of the services are maximum burst rates attainable and the services are provided as a variably contended connection.
   • Customer acknowledges that IT GURU may keep records/data of usage from the customer.
   • IT GURU will use its best endeavors to notify the customer in advance of any maintenance and repairs which may result in the unavailability of a service, but cannot always guarantee this.

6. FEES AND PAYMENT
   • Customer shall pay a monthly service fee and all other applicable fees, charges, taxes and other amounts for the services at the rates in effect for the current billing period. IT GURU may increase or decrease the monthly service fees. IT GURU will use all reasonable efforts to provide customer thirty (30) days or more notice of same. If such changes to the basic monthly service fee are to customer’s detriment, customer may terminate this agreement by giving thirty (30) days written notice, and customer will remain liable only for any balance on the account.
   • Payment is due in full by debit order or internet transfer at the start of each billing month, except where annual prepayment has been selected. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Adjustments will not be made for charges that are more than 30 days old. If any payment is more than 7 days overdue or is returned by the bank unpaid, the services may be suspended with immediate effect and remain suspended until the due amounts are paid in full. The Customer is not relieved of the obligation to pay the monthly service fee while an account is suspended. A reactivation fee or deposit may be required before services are reactivated after suspensions or termination. Credit account balances shall not accrue interest. Customer agrees to pay the reasonable costs of any collection agency, solicitor or court used by IT GURU to collect past due amounts or to enforce this agreement. Returned cheques or direct debits will incur N$50 administration fee.
   • Monthly charges during where the services are provided for less than a full month shall be pro-rated.
   • IT GURU reserves the right to collect all equipment installed in the event that customers account is beyond the 60 days billing period. This right applies to both upfront payment and contract clients. Should the customer settle their outstanding amount, a re-installation fee will be applicable.
   • Customers that select Debit order as their payment method agrees that:
     • IT GURU will be entitled and authorized to draw all amounts payable in terms of the agreement from the account specified;
     • the debit order will commence on the activation date and will continue and not be revoked until termination of this agreement or until all amounts due and owing to IT GURU have been fully and finally discharged.
     • the customer will sign all such forms and do all such things as may be necessary to give effect to the debit order as contemplated in this clause 6.4;
     • the customer’s first bill may be for part of a month and the customer will be charged for the number of days left in the month in which the customer signed up or switched over, plus the subscription for the next month.

7. EQUIPMENT
   • Except for Equipment that the customer had fully paid for, all Equipment installed or provided by IT GURU remains the property of IT GURU until the completion of the contract term and the customer agrees that:
     • the customer will take reasonable care of such equipment;
     • the customer may not sell, lease, mortgage, transfer, assign or encumber such equipment;
     • the customer may not re-locate such Equipment without IT GURU’s knowledge and permission;
     • the customer will inform any landlord that such Equipment is owned by IT GURU and therefore not subject to any landlord’s hypothec; and
     • the customer will return such equipment to IT GURU, at the customer’s expense, upon termination of the services to which the Equipment is related in the event that the contract term has not been completed.
     • The customer will be liable for the remainder of the outstanding fees related to the Equipment in the event that the contract is terminated early.
   • During installation certain cabling, mounts, poles and fixings may be used to complete the installation. These become the property and responsibility of customer once installation is completed, and it is customer’s responsibility to ensure they are maintained in operational and safe conditions.
   • Customer agrees to use the equipment in accordance with IT GURU’s instructions and to restrict access to the equipment to only those representatives and agents authorized by IT GURU.
   • For clients who have paid the equipment in full, save for the warrant below, all risk in and to the equipment (including without limitation the risk of damage, loss, theft, malfunction, breakage or breakdown) shall pass to and remain with customer once installation is completed. Accordingly, it is Customer’s responsibility to ensure that the equipment is maintained in operational and safe condition. Customers agree to take reasonable steps to protect the equipment from damage, loss or theft.
   • Customer agrees to notify IT GURU as soon as reasonably possible once he becomes aware of any damage to the equipment or defect in the operation of the equipment by telephoning or emailing IT GURU at the numbers or addresses published from time to time, or support@giganet.com.na.
   • If, within a period of twelve months following the date of installation, the equipment fails due to any malfunction which is attributed to an error in the manufacture or programming of the equipment. IT GURU shall repair or, at its option, replace the equipment free of charge to customer as soon as reasonably practicable upon being notified in writing of such malfunction by customer. The cost of all and any other repairs to or replacement of the equipment for any reason shall be for the account of the customer. The rates and charges charged by IT GURU for repairs, replacements, maintenances or other services shall be its rates applicable at the time.
   • Customer agrees not to, nor allows any other party to, move, dispose of, modify, or adjust the equipment, nor allow liens to be placed on the equipment.

8. BREACH
   • Subject to any other provisions set out in this terms and conditions, should the customer be in breach of any provision of this Agreement, then IT GURU shall be entitled, without prejudice to any other rights that it may have and to the extent, required or permitted, as the case may be, by law, to forthwith:
     • afford the customer a reasonable opportunity to remedy the breach taking into account the nature of the breach in question; or
     • suspend the customer’s access to services;
     • cancel all agreements concluded between IT GURU and the customer; or
     • claim immediate performance and/or payment of all obligations in terms hereof.
   • Should IT GURU suspend, disconnect or terminate the customer’s services, IT GURU will be entitled to, charge the customer a reasonable fee for reconnecting the customer’s services.

9. INDEMNITY
   • The customer hereby unconditionally and irrevocably indemnifies IT GURU and agree to indemnify and hold IT GURU harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whenever arising, suffered or incurred by IT GURU as a result of any claim instituted against IT GURU by a third party (other than the customer) as a result of (without limitation):
     • the use of IT GURU services or products other than as allowed or prescribed in the Agreement;
     • any other cause whatsoever relating to the Agreement or the provision of services or products to the customer where the customer have acted wrongfully or failed to act when the customer had a duty to so act.
   • To the fullest extent possible, the customer disclaims all responsibility or liability for any damages or loss howsoever arising, including but not limited to direct, economic, consequential loss or loss of profits, resulting from the use of or inability to use the services in any manner or from any reliance on the services in any way.
   • The customer agrees to indemnify and hold harmless IT GURU, its members, employees, servants, subcontractors and partners from any demand, action or application or other proceedings, including for attorney’s fees and other related costs made by any Third Party and arising out of or in connection with this Agreement and or the inability of any User to use the services.
   • The customer acknowledges its responsibility for its own internet security and privacy. Customers are strongly advised to install firewalls and anti-virus software for their own protection.

10. LIMITATION OF LIABILITY
    • Save to the extent otherwise provided for in this Agreement or where the customer is entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, IT GURU do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality, security of any product or services.
    • Without limiting the generality of the provisions of clause 10.3, IT GURU shall not be liable for and the customer will have no claim of whatsoever nature against IT GURU as a result of –
      • any unavailability of, or interruption in the services due to an uncontrolled event;
      • any damage, loss, cost or claim which the customer may suffer or incur from any suspension or termination of the service/s for any reason contemplated in the Agreement.
    • In addition to and without prejudice to any other limitations of liability provided for in the Agreement and to the fullest extent permitted by applicable law, IT GURU shall not be liable to the customer for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that IT GURU is liable to the customer for any damages, IT GURU’s liability to the customer for any damages howsoever arising shall be limited to the amounts paid by the customer under this Agreement in consideration for services or a product during the immediately preceding 12 (twelve) month period in respect of the services or product which gave rise to the liability in question.

11. FAIR ACCESS POLICY
    • To ensure equal internet access for all customers, IT GURU operates a fair access policy. Fair access establishes an equitable balance in internet access across high speed internet services for all customers. To ensure this equity, heavy usage may experience temporary throughput limitations during peak usage hours. IT GURU provides the services on a “best effort” basis and does not guarantee upload or download speeds.

12. SOFTWARE LICENSE
    • IT GURU grants to customer a non-explosive, non-assignable and non-transferable license to use and display the software provided by or on behalf of IT GURU only for purposes of accessing the services. Unauthorized copying of the software is extremely forbidden. Customer may not sublicense, assign or transfer the license or the software.

13. INSTALLATION
    • The installation, use, inspection, maintenance, repair, and removal of the equipment may result in service outage or potential damage to customer’s computer(s). Customer is solely responsible for backing up all existing computer files and data. IT GURU and its employees, agents, contractors, and representatives shall have no liability whatsoever for any damage to or loss or destruction of any of customer’s hardware, software, files, data, or peripherals.
    • IT GURU will endeavour to provide the services to all eligible applicants, subject to technical and commercial feasibility. IT GURU may in its sole discretion determine that it cannot or will not service a particular site or customer, and reserves the right to cancel the installation process and refund any money that customer has paid.
    • The installer will need to work internally and externally at customer’s premises for which the installer will require access. Customer acknowledges responsibility for securing, including any associated costs, the following:
    • Obtaining all necessary consents including planning permission if needed, landlord. Occupier and other building consents for both access and installation and maintenance of the equipment; and
    • full, free and safe access to relevant premises at agreed times for maintenances, replacement, or equipment removal.
    • A Fiber/Wireless installation might entail digging and trenching on the customer premises. The lifting of interlocks and possible damage to water cables and power cables. Drilling of holes if no access provision has been made. IT GURU takes no responsibility for this should the customer not have made any provision. The Customer acknowledges this.

14. CESSION AND DELEGATION
    • The customer may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of its rights and obligations under and in terms of this Agreement without the prior written approval of IT GURU. IT GURU shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without the customer’s consent and without notice to the customer.

15. COPYRIGHT AND LICENSES
    • The Content on the services is protected under applicable copyright law. Any copying, modification, distribution, publication or other use by customer, or by any user of customers account, of any such content is prohibited, except as expressly permitted by the holder of the applicable copyrights.

16. NO ENDORSEMENT
    • IT GURU does not endorse or in any way vouch for the accuracy or completeness of any content made available through the services. IT GURU does not recommend that such content be relieved on by customer without appropriate verification.

17. CUSTOMER CONDUCT
    • Customer shall comply with all laws, rules, regulations and legal obligations related to the services and with all acceptable use policies and procedures established from time to time by IT GURU.

18. THIRD PARTY ACCESS
    • Customer shall not resell, share, lease, hire or otherwise permit access to the services to any third party, including but not limited to the connection of any third party to the services through use of direct cable connection, network connection, wireless networking, or any other means.
    • IT GURU reserves the right to suspend the services pending investigation where it reasonably suspects the above clause is breached by customer and reserves the right to terminate with immediate effect the services and this agreement where such breach has taken place.

19. CUSTOMER EQUIPMENT
    • Customer shall maintain and operate suitable and fully compatible terminal equipment and communication devices required to access the service. IT GURU makes no representation of warranties, either express or implied, regarding such customer equipment.

20. DISCALIAMER OF WARRANTIES
    • Access to the service is not guaranteed. The service is distributed on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or otherwise.

21. SUPPORT SERVICES
    • Customer shall direct all enquiries and service related issues to IT GURU customer sales and support contact points, as defined on IT GURU’s website from time to time or directly by email to support@giganet.com.na.

22. APPLICABLE LAWS
    • This agreement shall be governed by the laws of Namibia. Any cause of action of customer, or by users of customers account, with respect to the services or this agreement must be instituted within six (6) months after the claim or cause of action has arisen or be barred. It is acknowledged that this is a service contract and not a contract for the sale of goods.
    • Notwithstanding any other terms of this Agreement, the customer hereby consents to the jurisdiction of the Magistrate’s Court in the Republic of Namibia in respect of any proceedings that may be initiated by IT GURU arising out of this Agreement, provided that IT GURU shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of Namibia and, in such event, the customer consents to the jurisdiction of such court.

23. GENERAL
    • The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No changes or cancellation of this Agreement by the customer will be binding on any of the parties unless recorded in writing and signed by both parties, notwithstanding activation of the service.
    • Failure on the part of IT GURU to enforce any provision of this agreement shall not be construed as a general waiver or relinquishment of the right to enforce such provision.
    • The customer agrees that any invoices or notices sent by IT GURU to the customer in terms of any agreement concluded between the parties may be sent via e-mail unless otherwise prescribed by law.
    • The customer acknowledges that it has read and understood the IT GURU acceptable use policy (AUP) (which is available on the Giganet website) and that a failure to observe the provisions of the AUP may lead to the suspension of the services and or cancellation of this Agreement.
    • No indulgence, leniency or extension of time which IT GURU may grant or show to the customer shall in any way prejudice IT GURU or preclude IT GURU from exercising any of its rights in the future.
    • The physical address where IT GURU will receive legal service of documents is the following:

47 6th street, Walvis Bay Namibia.

24. COMPETITOR QUOTES
    • Competitor quotations are not only price based, but also solution based. The IT GURU Account manager will provide their best endeavours in clarifying quotations, on an “apple vs apple” basis, distinguishing the difference in hardware, service, service level and business model.
    • The Competitor original quotation is required to be sent to the IT GURU Account Manager hand delivered, by email or faxed.
    • The competitor quotes need to indicate the same or similar type or criteria of services required by the end user, not excluding;
      • Date of quotation must be within the calendar and current month and year that the end user is being quoted.
      • Hardware which is equivalent in date, quality, model or if second hand or not
      • Same Warranty Period on Hardware
      • Similar business model
      • Term of agreement proposal, being month to month, Twelve (12) Months, Twenty-Four (24) Months or Thirty-Six(36) Months
      • Labour required.
      • Service type, not excluding;
        • Bandwidth Contention
        • Bandwidth Speed
        • Bandwidth Distance
        • Rate Limit or Acceptable User Policy
        • Type of Bandwidth being GSM, ADSL, Wireless or Fibre
        • Exact comparative solution
        • Quality of Service
        • Applies to industry standard
        • Is sustainable
        • Applies to applicable compliancy and laws of the Electronic Communications Act. No unlawful solutions will be challenged, as per IT GURU’s Code of Conduct.
      • In some cases, IT GURU only provides a specific solution, which has been tried and tested, apart from conforming to industry standard, the solution is best practice for IT GURU, and IT GURU will not create, attempt to, or change its stance in terms of the solution it provides.
      • IT GURU is by no means obligated or to be forced to provide a competitive quotation based on the above criteria
      • IT GURU indemnifies itself and any representatives, agents of, of any act of fraud, negligence, misrepresentation as per our IT GURU’s Terms & Conditions as published here