Standard Terms and Conditions

These Standard Terms and Conditions ("Standard Terms") are between Fire-IT (Pty) Ltd, registration number 2012/173035/07, VAT number 4610272165, of 36 Regency Drive, Route 21 Business Park, Centurion, Pretoria, Gauteng, 0178 ("Fire-IT"), and the business that accepts them ("you" or "the client").

They are the general terms that apply to every service Fire-IT provides to you as a business. Each service you take is also supplied under its own service agreement, such as the Fire-IT Business Fibre Services Agreement or the Fire-IT Microsoft 365 Licensing Services Agreement, and under the order you accept for it. You accept these Standard Terms once, and you are asked to accept them again only when they have changed since you last did.

These Standard Terms take effect when you accept them, electronically or in writing, and continue for as long as Fire-IT provides any service to you. Clauses that by their nature continue after that, including those on payment, equipment, liability, confidentiality, personal information and non-solicitation, continue after the last service ends.

In these Standard Terms:

"Service agreement" means the Fire-IT agreement for a particular service that you have accepted, including any schedule to it.

"Order" means a proposal, quote or order for services that you accept in writing or electronically.

"Services" means everything Fire-IT supplies to you under an order, including connectivity, managed IT, support, licensing, hosting, backup, hardware and software.

"Service Equipment" means hardware that Fire-IT provides and that remains Fire-IT's property, including routers, firewalls, modems, access points and other equipment installed at your premises.

"Third-party infrastructure" means the networks, services and equipment of Fire-IT's upstream providers, including fibre network operators, mobile networks and software vendors.

"Personal information", "responsible party", "operator" and "data subject" have the meanings given to them in the Protection of Personal Information Act 4 of 2013 ("POPIA").

"Business day" means any day other than a Saturday, Sunday or South African public holiday.

3.1 If documents conflict, they apply in this order, first to last, except as clauses 3.2 and 3.4 say: (a) the order you accepted, for its price, quantities, term and service specification; (b) the service agreement, for everything specific to its service, including service levels, cancellation, notice periods and acceptable use; and (c) these Standard Terms, for everything else.

3.2 Clause 10 (Non-solicitation of Fire-IT personnel) and clause 11 (Changes to these Standard Terms) prevail over any service agreement and any order, whatever they say.

3.3 If you signed a Fire-IT Master Service Agreement before accepting these Standard Terms, then by accepting these Standard Terms you and Fire-IT agree, in writing and each signed by an authorised representative, to amend that agreement so that these Standard Terms replace its general provisions from the date of your acceptance, including its provisions on liability, staff non-solicitation, data protection, payment, equipment, intellectual property and general legal matters, and so that these Standard Terms prevail over it where the two conflict. This amendment is made in the manner that agreement requires for amendments. The service-specific provisions of that agreement continue to apply to a service until that service is placed under its own service agreement.

3.4 Clause 19 applies if the Consumer Protection Act 68 of 2008 applies to you, and it prevails over every other clause of these Standard Terms and over any service agreement or order.

Unless an order or service agreement says otherwise, monthly charges are invoiced monthly in advance and are payable within five days of the invoice date, and the first month is charged pro rata. Payment by debit order is preferred, and cheques are not accepted. Where an order requires a deposit or payment up front, Fire-IT starts the work or orders the hardware once it has received that payment.

Fire-IT's invoice is prima facie proof of the amount owed. If you believe an invoice is wrong, tell Fire-IT in writing within 10 business days of the invoice date, with your reasons and any supporting information Fire-IT reasonably asks for. Fire-IT will investigate and respond in writing within 10 business days of receiving your reasons and that information. The disputed part is not treated as overdue during that period, and you must pay the undisputed part on time. If Fire-IT rejects the dispute, the disputed part is payable within 5 business days of Fire-IT's written response. If you do not give the supporting information within 10 business days of Fire-IT asking for it, the disputed part is payable on the original due date.

You remain liable for an amount that is due, but Fire-IT will not charge interest on it, suspend a service for it, or report it to a credit bureau, unless the invoice was sent to the billing contacts on your account.

Fire-IT may adjust its prices once in each 12 month period on 30 days' written notice, and will exercise that right reasonably. If you do not accept the new price, you may end the affected service by written notice given before the new price takes effect, without an early termination charge. You remain liable for charges up to the date that service ends, for returning Service Equipment, and for any third-party commitment Fire-IT has already made for you and cannot cancel. A price fixed for a term in an order does not change during that term, except as that order or its service agreement allows.

If you do not pay an amount by its due date, that amount bears interest from the due date until it is paid. Interest runs at 2% a month on the amount outstanding, which is a rate of 24% a year, and it is not compounded. Where the law sets a lower maximum rate for your account, that lower maximum applies instead. No separate penalty or late payment fee is payable.

Interest, together with any fees and collection costs, stops accruing once it equals the unpaid capital that was owed when you first fell into default, and starts running again only once you have brought the account up to date.

A failed debit order attracts an administration fee of R150 excluding VAT, plus the bank's charges. Where the National Credit Act 34 of 2005 applies to your account, that fee is limited to the maximum default administration charge that Act allows, and collection costs are limited to the maximum that Act and its regulations allow.

If an amount remains unpaid, Fire-IT may hand the account over for collection. Before Fire-IT reports any adverse information about you to a credit bureau it will give you at least 20 business days' written notice of its intention to do so. Fire-IT will not report the information if you pay the arrears within that period, or if you have disputed liability for the amount in writing on reasonable grounds, and Fire-IT will not report a debt that has prescribed.

The party that succeeds in a dispute about these Standard Terms is liable for the other party's reasonable legal costs on the attorney and client scale, as taxed or agreed, and subject to any order the court makes.

Minimum charges continue while a service is suspended for non-payment.

Service Equipment remains Fire-IT's property unless you bought it outright under an order. You must keep it safe, use it only with the power supply provided with it, and not open, tamper with, reconfigure or move it without Fire-IT's consent. You must give Fire-IT reasonable access to maintain, replace or collect it.

You are liable for the replacement cost of Service Equipment that is lost, stolen, destroyed, or damaged beyond fair wear and tear while it is in your possession or at your premises, including by lightning, a power surge, water, fire or an incorrect power supply. You are not liable to the extent that the loss or damage was caused by Fire-IT, by a defect in the equipment, or by something else beyond your reasonable control. The amount payable is the replacement value stated in the order or, where none is stated, Fire-IT's cost of replacing the equipment, less an allowance for its age and condition. Fire-IT recommends that you insure it.

Equipment that belongs to a network operator, such as a fibre ONT, remains that operator's property, and you are liable for its loss or damage on the same basis, at the operator's charge.

Within 7 days after a service ends you must return its Service Equipment in good working order, or make it available for collection. Equipment that is not returned is charged on the same basis.

To the maximum extent permitted by law, Fire-IT's total liability arising from a service is limited to the amounts you paid Fire-IT for that service in the twelve months before the event that gave rise to the claim.

Fire-IT is not liable for indirect, consequential, special, incidental or punitive damages, or for loss of profit, business interruption, downtime or lost opportunity. Fire-IT is not liable for loss of data, except where Fire-IT was engaged to back up that data and failed to take the backups the service agreement or order required. Fire-IT is not liable for a failure of third-party infrastructure, including an extended outage, or for a security incident that results from a configuration change you asked for or made yourself.

Nothing in these Standard Terms limits or excludes, and nothing in them may be read as limiting or excluding: liability for death or personal injury; liability for fraud or for Fire-IT's gross negligence; liability that the Consumer Protection Act 68 of 2008 does not allow to be limited, including liability for harm caused by goods under section 61 of that Act, which applies whatever your size; or any other liability that the law does not allow to be limited.

You indemnify Fire-IT against claims, damages and costs that a third party brings against Fire-IT and that arise from your breach of these Standard Terms, a service agreement or the law; your misuse of the Services or any prohibited activity; your content, data or activities; a breach of a software licence or of third-party terms by you; or the loss of or damage to Service Equipment for which clause 6 makes you liable.

This indemnity does not apply to the extent that the claim arises from Fire-IT's own act or omission, and it does not apply at all to loss attributable to Fire-IT's gross negligence. It does not apply to a breach of clause 10 for which Fire-IT recovers the staff replacement fee.

Roles. For the personal information Fire-IT processes to run your account, including your contacts' names, roles, email addresses and telephone numbers, Fire-IT is the responsible party. For the personal information Fire-IT processes on your instruction in order to deliver a service, including the personal information of your employees and users in your Microsoft 365 tenant, your mailboxes, your backups, your devices, and the credentials Fire-IT holds for you, you are the responsible party and Fire-IT is your operator. This clause is the written contract that section 21(1) of POPIA requires between a responsible party and its operator.

What Fire-IT does as your operator. Fire-IT will process that personal information only with your knowledge or authorisation and only to deliver the Services, to meet a legal obligation, or as you instruct in writing. It will treat it as confidential and not disclose it, except as the law requires or in the proper performance of its duties. It will establish and maintain the security measures that section 19 of POPIA requires, identifying reasonably foreseeable internal and external risks, maintaining safeguards against them, verifying that they are effectively implemented, updating them continually, and having due regard to generally accepted information security practices. It will impose the same duties on any sub-operator it engages. It will return or delete the information at your written request when a service ends, subject to any retention the law requires.

Credentials. Fire-IT holds your passwords and other credentials as your operator. It keeps them encrypted, uses them only to deliver the Services or on your instruction, and discloses them to nobody outside Fire-IT.

Security compromises. If Fire-IT has reasonable grounds to believe that personal information it processes for you has been accessed or acquired by an unauthorised person, it will notify you immediately, as section 21(2) of POPIA requires, and will give you the information you need for your own notification to the Information Regulator and to affected data subjects under section 22. Where Fire-IT is the responsible party for the information concerned, Fire-IT will notify the Information Regulator and the affected data subjects as soon as reasonably possible after discovering the compromise.

Why Fire-IT may process and share it. Fire-IT processes and shares this personal information because it is necessary to conclude or perform the contract between you and Fire-IT (section 11(1)(b) of POPIA), because it is necessary for the legitimate interests of Fire-IT, of you, and of the suppliers that deliver the Services (section 11(1)(f)), and because the law requires it (section 11(1)(c)). Fire-IT does not rely on your consent to process the personal information of your employees and users, because they, and not you, are the data subjects.

Who it is shared with. Fire-IT shares the personal information needed to deliver a service with the suppliers involved in delivering it, including network operators, Microsoft and other software vendors, hardware vendors and delivery partners. Where that involves sending personal information outside South Africa, Fire-IT does so only where the recipient is subject to a law, binding corporate rules or a binding agreement that gives an adequate level of protection, upholds principles for reasonable processing substantially similar to POPIA, and includes substantially similar provisions on onward transfers, or where another ground in section 72 of POPIA applies.

What you must do. You warrant that you have a lawful basis under section 11 of POPIA for giving Fire-IT the personal information of your employees and users, and that you have given them the notification section 18 of POPIA requires, including that Fire-IT and its suppliers process it. You must give Fire-IT accurate information and tell it of changes, and comply with POPIA in your own processing. As between you and Fire-IT, Fire-IT is not responsible for personal information once it is in systems under your control, or for your own compliance, but nothing in these Standard Terms affects either party's own duties to data subjects or to the Information Regulator.

10.1 In this clause:

"Fire-IT personnel" means any person who is, or at any time in the 12 months before the conduct in question was, an employee, contractor or consultant of Fire-IT, and who in that period provided services to you, worked on your account, or had access to your systems or to Fire-IT's confidential information about you.

"Related party" means each person who, at any time during the restraint period, is your director, member, partner, trustee or owner, or holds 20% or more of your shares or ownership; any company in the same group as you; and any business, whenever it was formed, that any of those persons owns or controls, or of which any of them is a director, member, partner or trustee, and which uses, resells or supplies IT, connectivity or related services of the kind Fire-IT supplied to you.

"Restraint period" means the whole time Fire-IT provides any service to you, and 12 months after the last of those services ends. In no case does this clause restrict you in relation to a particular person for more than 24 months after that person last provided services to you on Fire-IT's behalf.

10.2 During the restraint period you may not, and you must ensure that no related party does, directly or indirectly, including through a recruiter, labour broker or other third party:

• (a) employ, engage or appoint any Fire-IT personnel in any capacity, whether as an employee, contractor, consultant or otherwise, and whether paid or not;
• (b) solicit or encourage any Fire-IT personnel to leave Fire-IT, or offer them employment, work or a business opportunity;
• (c) have any Fire-IT personnel do work for you or a related party privately, outside Fire-IT's official channels; or
• (d) help anyone else do any of these things.

10.3 No staff replacement fee is payable, and clause 10.2(a) does not apply, where you employ or engage a person who responded to a general advertisement that was not aimed at Fire-IT personnel, without having been approached by you or by anyone acting for you; where Fire-IT dismissed or retrenched the person; or where the person's employment or engagement with Fire-IT ended more than 12 months before you first approached them.

10.4 You may otherwise employ or engage Fire-IT personnel during the restraint period only with Fire-IT's prior written consent. Fire-IT may give that consent on payment of the fee in clause 10.5, and in that case the fee is the agreed price of Fire-IT's consent rather than a penalty.

10.5 For each person employed or engaged in breach of this clause, or with consent under clause 10.4, you must pay Fire-IT a staff replacement fee calculated on that person's total annual cost to company at Fire-IT, being basic salary plus Fire-IT's contributions and the annual average of any commission or bonus, measured at the date they left Fire-IT or, if they have not left, at the date of the breach, as follows: (a) six (6) months where the person had less than 12 months' service with Fire-IT; (b) nine (9) months where the person had 12 to 36 months' service; and (c) twelve (12) months where the person had more than 36 months' service or worked on your account in the 12 months before the breach. For a person Fire-IT engaged as a contractor or consultant rather than as an employee, the equivalent annual figure is the total fees Fire-IT paid them for their services in the 12 months before that date, or, where they provided services to Fire-IT for less than 12 months, the annualised equivalent of those fees; and their service with Fire-IT means the period over which they provided those services. VAT is added where VAT is properly chargeable. The fee is payable within 30 days of Fire-IT's invoice.

10.6 You agree that the fee is a reasonable pre-estimate of the prejudice Fire-IT suffers, which includes the loss of Fire-IT's trade connection with you, the loss to Fire-IT of the confidential information and system configurations that the person holds, the disruption to Fire-IT's delivery of services to its other clients, and the cost and delay of recruiting a replacement.

10.7 Fire-IT may, instead of claiming the staff replacement fee, claim the damages it actually suffers, as section 2(1) of the Conventional Penalties Act 15 of 1962 permits a contract expressly to provide. Fire-IT may not recover both the fee and damages for the same breach, and must elect between them before judgment. Nothing in this clause limits Fire-IT's right to an interdict or other relief to stop or prevent a breach, which is not a claim for damages.

10.8 You are responsible for a breach of this clause by a related party as if it were your own.

10.9 The person who accepts these Standard Terms on your behalf is asked to give, in their own name and for their own account, the separate personal undertaking shown with them. That undertaking is a separate agreement between Fire-IT and that person, and is not given as surety or guarantor for you. Your acceptance of these Standard Terms is not conditional on it, and whether or not it binds that person does not affect this clause 10.

10.10 You accept that this clause is reasonable and protects Fire-IT's legitimate interests in its trade connections with its clients, in its confidential information and system configurations, and in the continuity of the teams that hold them. If a court finds any part of it unreasonable, that part is to be read down only as far as needed to make it enforceable, and each part of this clause, and its application to each related party and to each person it covers, is a separate undertaking.

11.1 Fire-IT may update these Standard Terms. It will give you at least 30 days' written notice of an update by email to the contacts on your account, with a summary of what has changed, the date it takes effect and a link to the full text.

11.2 If an update materially increases your obligations or materially reduces your rights, you may end the services it affects by written notice to Fire-IT given before the update takes effect, without a cancellation penalty or early termination charge. You remain liable for charges up to the date those services end, for returning Service Equipment, and for any third-party commitment Fire-IT has already made for you and cannot cancel, such as an annual Microsoft licence commitment.

11.3 If you do not end those services, the update applies to you from the date it takes effect.

11.4 A change to clause 10 or to the personal undertaking takes effect only if you accept it, and never by continued use alone. Fire-IT may also ask you to accept any other update electronically, and you must accept the current version of these Standard Terms before Fire-IT accepts a new order from you.

11.5 An update does not change the price, term or specification of a service under an order you have already accepted. Those change only as that order or its service agreement allows.

11.6 Fire-IT will exercise its power to update these Standard Terms reasonably and in good faith. An update takes effect only from the date stated in the notice, and does not change the rights or obligations of either party in respect of anything that happened before that date.

11.7 This clause applies despite any provision in these Standard Terms, a service agreement or an earlier Fire-IT agreement that requires a change to be in writing and signed by both parties. You agree to this clause in writing, signed by you and by Fire-IT, when you accept these Standard Terms. An update made under this clause is therefore a change made in the manner both parties have agreed in writing, and not a unilateral variation.

Each party must keep the other's confidential information confidential and use it only to perform or receive the Services. Your confidential information includes your data, passwords and business information. Fire-IT's confidential information includes its pricing, configurations, systems and methods. This does not apply to information that is public through no fault of the receiving party, or that the law requires to be disclosed. This clause continues for three years after the last service ends.

Fire-IT's trademarks, software, documentation, scripts, templates, configurations and systems remain Fire-IT's property, including configurations Fire-IT creates for you. You may use them only to receive the Services. You may not access, copy, modify or replicate the configuration of managed equipment without Fire-IT's written consent.

When a service ends, Fire-IT may remove the security templates, management agents and configurations it applied for that service.

Each service runs for the term, and ends on the notice, set out in its order or service agreement. If a fixed-term service ends early because you cancelled it or because of your breach, the early termination charges in its order or service agreement are payable.

Fire-IT may suspend a service, after written notice where practical, if you do not pay an amount that is due, if you breach these Standard Terms or a service agreement and do not remedy the breach within 7 days of written notice, or if suspension is needed to protect Fire-IT's network, its other clients or compliance with the law.

Fire-IT may end these Standard Terms and every service by written notice if you materially breach them and do not remedy the breach within 14 days of written notice, or if you are placed in liquidation or under sequestration, or enter into a compromise with your creditors. Where you are placed in business rescue, Fire-IT's rights are subject to the Companies Act 71 of 2008.

When a service ends, every amount owed for it becomes due immediately.

Neither party is liable for a failure or delay caused by an event beyond its reasonable control, including natural disasters, fire, flood, lightning, war, riots, pandemics, load shedding and failures of the national grid, government action, labour action, the theft or vandalism of infrastructure, and failures of third-party infrastructure. This clause does not excuse a payment obligation.

Fire-IT sends notices to the email addresses of the contacts on your account, and you send notices to accounts@fire-it.co.za. It is your responsibility to keep those contacts up to date. An email notice is received when the complete message enters the information system the recipient uses for that purpose and is capable of being retrieved and processed by the recipient, unless the sender receives a delivery failure.

Each party chooses the following address for the service of legal documents (domicilium citandi et executandi): Fire-IT at 36 Regency Drive, Route 21 Business Park, Centurion, 0178, and you at the street address you gave when you accepted these Standard Terms, as recorded with your acceptance. That address must be a street address in South Africa and may not be a post box. Either party may change its address by written notice to the other, to another street address in South Africa, and the change takes effect 7 days after the notice is received. Service at a party's chosen address is good service even if that party has moved, the premises are vacant or unoccupied, or the document does not come to that party's attention.

You may accept these Standard Terms, a service agreement and an order electronically, by ticking the acceptance boxes and signing on Fire-IT's platform. The parties agree that ticking those boxes and applying a typed or drawn signature on Fire-IT's platform is the type of electronic signature they have agreed to use for these Standard Terms, for a service agreement and for an order, and that no other form of signature is required. That acceptance is as binding as a handwritten signature, as sections 13 and 22 of the Electronic Communications and Transactions Act 25 of 2002 allow. The person who accepts on your behalf confirms that they are authorised to bind you.

Fire-IT keeps a sealed record of each acceptance, including the version accepted and its fingerprint, the date and time, the signatory's details, the address you gave, and the device and network used. That record is proof of the acceptance unless the contrary is shown. Fire-IT may produce a printout or extract of that record, certified as correct by one of its officers, and that certificate is admissible on its mere production and is proof of the facts it records unless the contrary is proved.

Fire-IT signs each version of these Standard Terms electronically, through its authorised representative, whose name, role and the date of signing are recorded with the version.

These Standard Terms are governed by South African law. Either party may bring a claim arising from them in the magistrate's court that has jurisdiction over the defendant under section 28 of the Magistrates' Courts Act 32 of 1944, even where the amount claimed exceeds that court's jurisdiction under section 29(1), and the parties consent in writing to that court's jurisdiction in terms of section 45(1) of that Act. This does not exclude the jurisdiction of the High Court, and does not apply to a matter referred to in section 46 of that Act.

A relaxation or delay by either party in enforcing a right is not a waiver of it. If any part of these Standard Terms is unenforceable, it is severed and the rest remains in force. You may not cede or assign your rights or obligations without Fire-IT's written consent.

These Standard Terms, the service agreements and the orders you accept set out the whole agreement between the parties about the Services. Nothing in them limits either party's rights in respect of a fraudulent misrepresentation, or prevents you from relying on a representation Fire-IT actually made to you. Changes to these Standard Terms are made under clause 11, and changes to a service agreement or order are made as that document provides.

This clause applies if you are a consumer for the purposes of the Consumer Protection Act 68 of 2008, which includes any client who is a natural person, and any company, close corporation, trust or partnership whose asset value and annual turnover were both below R2 000 000 when the transaction was made. It prevails over every other clause of these Standard Terms and over any service agreement or order.

Nothing limits Fire-IT's liability for loss attributable to its gross negligence, and you do not assume risk or liability, and do not indemnify Fire-IT, for any such loss. Clauses 6, 7 and 8 are read subject to this.

Fire-IT's liability for harm caused by goods it supplied is not limited, as section 61 of that Act requires.

The staff replacement fee in clause 10.5 is limited to the prejudice Fire-IT actually suffers.

Each party bears its own legal costs unless a court orders otherwise, and no consent to a predetermined scale of enforcement costs applies to you.

If you are a natural person, you may cancel a fixed-term agreement on 20 business days' written notice, and Fire-IT may charge only a reasonable cancellation penalty, as section 14 of that Act and its regulations require.

Before you accept these Standard Terms, Fire-IT will draw the clauses that limit its liability, place risk on you, or require you to indemnify it, to your attention in plain language, and will give you an opportunity to read and understand them, as section 49 of that Act requires.