An Agreement is formed between the customer named (Insert Company Name), a company incorporated in the Republic of Mauritius and registered under the Companies Act, Business Registration No. (Insert BRN Number) (hereinafter referred to as the “Subscriber”) of (Insert Business Address) and ATCOMM, a company incorporated in the Republic of Mauritius and registered under the Companies Act, Business Registration No. C07003866, (hereinafter referred to as “ATCOMM”) situated at Dr. Lucien De Chazal, John Kennedy Avenue, Floreal, Curepipe, on the terms and conditions set out in this Agreement.

The Subscriber and ATCOMM each a “Party” and together the “Parties”.

The Subscriber should clearly select and mention the type of service in the application form they want to subscribe to.

1. DEFINITIONS

“Agreement” or “Contract” means the General Terms and Conditions, the relevant Special Terms and Conditions and any related document including (but not limited to) the Order Form/Customer Application Form.

“Initial Period” means the contract duration specified in Part 3 in the “Subscription Form”.

“Internet” means the global data network comprising interconnected networks using the TCP/IP protocol suite.

“Subscription Form” means the application form filled by the Subscriber for the provision of Service and which forms an integral part of this agreement.

“Premises” means the premises at which the Service is or to be provided under this contract.

“Service” as defined in Part 3 of the Subscription Form.

“Regulatory Authority” means the Information and Communication Technologies Authority of Mauritius (“ICTA”).

“Service Equipment” is defined as the equipment belonging to ATCOMM and installed at the Subscriber Premises through which the Subscriber will be provisioned. The Service Equipment supplied shall continue to remain as property of ATCOMM during the period of the Agreement and will be taken back by ATCOMM at the end of the Agreement period or on termination of this Agreement.

2. OBJECT

The Subscription Form comprising the present General Terms and Conditions shall constitute a binding contract between the Customer and ATCOMM.

3. PROVISION OF THE SERVICE

For operational reasons, ATCOMM may vary the technical specification of Service.

Any date proposed by ATCOMM for the provision of Service, or a facility is to be treated as an estimate only and ATCOMM accepts no liability for failure to meet it.

If ATCOMM agrees any change in Service, this Contract is to be treated as varied accordingly.

In consideration of the payment by the Subscriber of the charges, fees and/or rentals, ATCOMM shall provide the Service during the continuance of this Contract subject to the compliance by the Subscriber with all the terms and conditions set out in this Contract.

ATCOMM reserves the right to cancel or to delay the provision of the Service to a Subscriber, if the Service is not likely to be effected in satisfying conditions for the Subscriber or for the Subscribers already connected, or if the Subscriber is likely to use it for purposes which constitute a breach of Contract.

4. SERVICE PRE-DELIVERY

The provision of the Service shall be subject to a site survey.

The installation fee to be charged shall be determined as a result of the site survey.

ATCOMM shall use reasonable endeavours to make the service available.

In the event the Service cannot be delivered due to unsatisfying results of the site survey, ATCOMM reserves the right to cancel or delay the provision of the service.

5. MINIMUM PERIOD OF SERVICE

The first minimum initial period shall be the Initial Period as defined above, but it does not prevent ATCOMM from exercising its rights to suspend Service, or, subject to clause 9, either party from terminating this Contract or the provision of a Service or facility under it. If the Subscriber does not notify in writing ATCOMM of his/her intention to terminate the contract one month prior to the end of the contract period, it is implied that the Subscriber is renewing the contract for subsequent periods of one year.

6. SUBSCRIBER’S RESPONSIBILITY AND OBLIGATIONS

The Subscriber is responsible for ATCOMM’s Service Equipment placed within the boundary of the Subscriber’s Premises and for its proper use; if any part of ATCOMM’s Service Equipment is lost, destroyed or damaged (except for fair wear and tear) the Subscriber must pay ATCOMM’s charge for its replacement and/or repair.

The Subscriber shall ensure that any equipment connected to or used with the Service must be connected and used in accordance with any instructions, safety, and security procedures applicable to the use of that equipment.

The Subscriber shall ensure that any equipment that is attached (directly or indirectly) to the Service must be technically compatible with the Service and approved for that purpose under any relevant legislation.

ATCOMM is acting only as a reseller or licensor of any hardware, software, and equipment (collectively, the “Service Equipment”) offered under this Contract that was manufactured by a third party. Any malfunction or manufacturer’s defects of Equipment, either sold, licensed or provided by ATCOMM to the Subscriber or purchased directly by the Subscriber used in connection with the Service will not be considered a breach of ATCOMM’s obligations under this Contract.

Any rights or remedies the Subscriber may have regarding the ownership, licensing, performance, or compliance of Equipment are limited to those rights extended to the Subscriber by the manufacturer of such Equipment. The Subscriber is entitled to use any Equipment supplied by ATCOMM only in connection with the Service.

The Subscriber shall use his best efforts to protect and keep confidential all intellectual property provided by ATCOMM through any Equipment and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Service. The Subscriber shall not resell, transfer, export or reexport any Equipment, or any technical data derived therefrom, in violation of any applicable Mauritian or foreign law.

ATCOMM shall place Service Equipment on the Subscriber’s Premises to provide Service. The Subscriber must provide a suitable place and appropriate environment for ATCOMM’s Subscriber Equipment. The Subscriber must prepare the Premises before Service is provided according to any instructions ATCOMM gives the Subscriber.

Service will not be used for any unlawful purposes such as, but not limited to sending a message or communication which is offensive, abusive, indecent, obscene, or menacing.

If ATCOMM needs someone else’s permission to put ATCOMM’s Service Equipment on the Premises, the Subscriber must get that agreement for ATCOMM and make any necessary arrangements as may be required.

7. SUBSCRIBER OBLIGATIONS AND INDEMNITY

The Subscriber shall at all times use the Service in accordance with the present terms and conditions and shall indemnify and hold harmless ATCOMM from any losses incurred by reason of breach of this clause.

The Subscriber is responsible for the acts and omissions of all Users in connection with the Service and is liable for any failure by any User to perform or observe the terms and conditions of this Contract as if it were a party to it.

This Contract is personal to the Subscriber and accordingly the Subscriber may not assign or transfer its rights under this Contract or any part of the Service itself without the prior written consent of ATCOMM.

The Subscriber shall not, in any case, resell or sublet the Service. Examples of prohibited reselling or subletting include but are not limited to: Internet Service Provision outside of the Subscriber’s company or organization, resale of bandwidth, internet connectivity or services provided by ATCOMM unless specifically authorized by ATCOMM.

Unless otherwise agreed in writing between the parties, the Subscriber is solely responsible for its own and any third-party software, programs and data, the maintenance of the same and the output therefrom and for ensuring that such items are (if applicable) properly licensed, including being licensed for use by ATCOMM if necessary.

The Subscriber shall not use access system, or the software made available to it in any way which, in ATCOMM’s opinion, is, or is likely to be, detrimental to the provision of the Service to the Subscriber or any other Subscriber.

8. CHARGES AND PAYMENT TERMS

The installation charges and the first month rental shall be paid upon confirmation of service delivery prior to installation and the subsequent monthly charges shall be paid in advance and by latest the 5th of the month to which the service relates.

Payment shall be effected by direct debit and in case the Subscriber does not have a bank account, payment shall be made by such means as may be specified by ATCOMM.

In the event that any amount remains unpaid after the due date, a surcharge of 10% shall automatically be applied on the outstanding balance.

ATCOMM reserves the right to terminate and/or discontinue the service by written notice should the Subscriber fail to pay to ATCOMM any of the instalment or any other payment due within Seven (7) days of it becoming due (whether demanded or not).

In the event of recovery of any unpaid amount through an Attorney-at-law, the Subscriber shall be liable to all costs incurred by ATCOMM in order to recover the said unpaid amount. Such costs shall include, but shall not be limited to, all overheads, expenses, man-days and any commission charged by an Attorney-at-Law and a Barrister, which commissions shall however not exceed 10% each.

9. TERMINATION

By the Subscriber

1. 9.1The Subscriber may terminate the agreement after the Initial Period by giving notice to ATCOMM at least Forty-five (45) days in writing by registered letter or via email on info@atcomm.mu or as mutually agreed otherwise; or
2. 9.2The present contract shall be renewed tacitly for each subsequent period thereafter without any further formalities with the same terms and conditions, unless a written notice of termination is given by the Subscriber, Forty-five (45) days before the expiry date of the duration of the Agreement.

By ATCOMM

1. 9.3In the event that the conditions of use of the Subscriber Equipment or rules and regulations of the Regulatory Authority are breached, ATCOMM shall be entitled to withdraw the Subscriber Equipment from the service immediately and without prior consultation with the Subscriber.
2. 9.4ATCOMM reserves the right to summarily suspend or terminate the Agreement with the Subscriber without being bound to ascribe any reasons therefore by giving notice to Subscriber at least One (1) month prior in writing or as agreed otherwise. In the event ATCOMM exercises its right to suspend or terminate the Service provided for herein, ATCOMM shall not be liable to the Subscriber for any loss or damage which the Subscriber may sustain.

Termination of the agreement either by the Subscriber or ATCOMM shall not relieve the Subscriber from its responsibilities and liabilities under this agreement which are incurred prior to and up to the effective date of termination.

10. EARLY TERMINATION AND SUSPENSION

1. 10.1In the event the Subscriber decides to terminate the Agreement during the initial period in accordance with Clause 9.1 above, the Subscriber shall pay ATCOMM the charges due until the end of the initial period.
2. 10.2Where the Agreement is automatically renewed after the initial period in accordance with Clause 9.2 above, and the Subscriber decides to terminate the Agreement, the Subscriber shall send a written notice to ATCOMM at least Forty-five (45) days before the expiry of the Agreement.

ATCOMM may suspend or terminate the Service at any time by giving at least Three (3) days written notice thereof to the Subscriber and stating its reasons for the suspension or termination. ATCOMM may also suspend or terminate the service where:

• In the opinion of ATCOMM, the Subscriber fails to comply with any of the Terms and Conditions contained herein;
• In the opinion of ATCOMM, the Subscriber has used the Service fraudulently and/or unlawfully;
• If in the opinion of the relevant regulatory authority or law enforcement body, it is not in the public interest to continue providing the service to the Subscriber for any reason whatsoever.

3. 10.3ATCOMM shall not be held liable for any costs, losses, expenses, damages or reimbursement in whole or in part of the monthly charges during the period of suspension or termination.
4. 10.4In the event the service is terminated:
   • the Subscriber shall pay all sums due to ATCOMM with respect to the Service immediately;
   • ATCOMM shall execute its obligations and shall be entitled to charge the Subscriber the cost in repossessing or acquiring a replacement of the equipment which is returned damaged or in defective condition.

11. EXCLUSION OF LIABILITY OF ATCOMM

1. 11.1ATCOMM shall not be liable in any way to the Subscriber whether in contract, tort, or otherwise for any direct or indirect economic or financial loss, loss in goodwill or damage however caused or arising.
2. 11.2In addition to 11.1 above, ATCOMM shall not be liable for any loss incurred by the Subscriber caused by or incurred as a result of:
   • Any failure, delay, interruption to or disruption of the Service;
   • Any defect, deficiency, breakdown or failure of the Service Equipment or the incompatibility of unsuitability of the Service Equipment in relation to or in conjunction with any other system or equipment;
   • Any defect deterioration in the quality of any signal or data transmitted as part of the Service;
   • Any defect or deficiency in or the breakdown or failure of any equipment or system however arising;
   • the disclosure and/or publication by ATCOMM of any information or data relating to the Subscriber;
   • any error, omission or inaccuracy in any information provided by ATCOMM whether to the Subscriber or any person.

12. FORCE MAJEURE

Neither party will be liable for any failure or delay in performing any of its obligations (except payment obligations) under this Agreement as a result of Force Majeure for as long as the Force Majeure continues for more than Thirty (30) days and to the extent that party is so prevented, hindered or delayed.

For the purposes of this Agreement, Force Majeure means any cause beyond the affected Party’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, pandemic, cable cuts, embargo or requisition (acts of government).

1. 12.1If either party claims to be affected by Force Majeure, then it will notify the other party in writing within Seven (7) Working Days of commencement of the Force Majeure or as reasonably practicable, giving details of the effect on its ability to perform its obligations under this Agreement and likely duration of the Force Majeure. The affected party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.

13. AMENDMENT AND VARIATION

ATCOMM may amend, vary or supplement the Terms and Conditions by giving Seven (7) days written notice to the Subscriber and any such amendment, variation or supplement shall take effect as from the date specified in such notice.

14. DISPUTES

1. 14.1Any dispute, controversy, difference or claim arising out of or relating to the present contract may at any time be referred, by consenting parties, to mediation under the Mediation Rules of the Mediation and Arbitration Center (Mauritius) Ltd (“MARC”).
2. 14.2In the event no mediation is attempted, or if mediation is attempted and no settlement is reached within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute, controversy, difference or claim shall be referred, or referred back as the case may be, to be finally resolved by arbitration administered by the Mediation and Arbitration Center (Mauritius) Ltd (“MARC”), under the MARC Arbitration Rules in force when the Request for Arbitration is submitted.
3. 14.3The seat of arbitration shall be Mauritius.

15. NOTIFICATIONS

1. 15.1The Parties are bound to submit all correspondence, notices, invoices or any other documents in relation to this contract in writing to the addresses set out in the Subscription Form or by email to the email address given in the Subscription Form.
2. 15.2The Subscriber shall notify ATCOMM of any changes to the information provided on the Subscription Form.

16. INTELLECTUAL PROPERTY AND OTHER RIGHTS

Intellectual Property Rights means patents, inventions, know-how, trade secrets and other confidential information, computer programs, registered designs, copyrights, database rights and design rights, semi-conductor topography rights, trademarks, service marks, logos, images, domain names, business names, trade names, moral rights, any other intellectual or industrial property rights (and any licences in connection with the same) and any and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing-off; All Intellectual Property Rights belonging to each Party prior to signing of this Agreement shall remain solely for the latter;

Each Party warrants that it shall not use any Intellectual Property Rights of the other Party trademarks and brands for any purpose without the latter’s prior written consent.

17. ENTIRE AGREEMENT

This Agreement supersedes & renders void any and all agreements and understandings, oral and/or written, previously entered between the parties.

18. SEVERABILITY

If any term or provision of this Agreement is declared invalid, void, or unenforceable by any competent authority, in whole or in part, that term or provision will not affect the rest of the Agreement which shall be deemed amended to the extent necessary to make the Agreement enforceable, valid and, to the maximum extent, consistent with the applicable law and with the original intentions of the Parties, the remaining terms and provisions remaining in full force and effect.