Terms & Conditions of the Agreement
1. Background Parties This Mobile Telephony agreement is between:
1.1 Swazi MTN Limited is a company incorporated under the laws of the Kingdom of Eswatini, located at Mahlalekhukhwini House, Lot 14 of Farm 50, Corner of MR103 &; Nshakabili Road, Ezulwini and P.O. Box 5050, Mbabane, H100 (hereinafter referred to as Swazi MTN or MTN Eswatini) of the one part
1.2 The Subscriber whose name is first above written, is a company incorporated in the Kingdom of Eswatini having its registered office first above written (hereinafter called Subscriber or Customer) of the other part and collectively referred to as the parties.
1.3 Swazi MTN is a GSM Mobile Operator in the Kingdom of Eswatini engaged in the provision of national and international telecommunication services including mobile phones, data packages, connectivity services and other value added services in Eswatini.
1.4 The Subscriber is a legal entity and desirous of obtaining and using the services provided by Swazi MTN subject to the terms and conditions contained in this agreement.
1.5 By subscribing for any service package, the Subscriber authorizes MTN to perform a background check to identify the subscriber’s credit worthiness.
1.6 MTN is hereby authorized by the Subscriber to obtain a credit report for such service connection.
1.7 The Parties have agreed for MTN to provide the services on the terms and conditions stated herein.
2.1 In this agreement, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings:
2.1.1 “This Agreement” means this Agreement including customer data form and appendices hereto which shall be read with and interpreted as an integral part hereof;
2.1.2 “Effective Billing Date” means the service activation date;
2.1.3 “Agreement Effective Date” means the date of signature by Subscriber and/or activation of the service whichever comes first;
2.1.4 The Subscriber means the party referred to in 1.2, which operates within Eswatini;
2.1.5 “Day” means any period from one midnight to the next midnight of any weekday of the typical Gregorian Calendar seven-day week, other than a Saturday, Sunday or any official public holiday within the Kingdom of Eswatini;
2.1.6 “This contract”, “contract”, “agreement”, “this agreement” or “the contract” which terms and/or phrases are herein used interchangeable, mean this agreement entered into by the “Subscriber” and Swazi MTN and the annexes thereto;
2.1.7 “License” means a License, including any amendment to, renewal or replacement of such License, granted to Swazi MTN in terms of the laws of the Kingdom of Eswatini
2.1.8 “Tariff” shall mean the rate which shall apply to the service provided by Swazi MTN
2.1.9 “GSM” means Global System for Mobile communications
2.1.10 “Signed” or “Signature” means a hand- written signature, excluding signature appended by electronic communications; where “electronic communication” has the meaning assigned to it in the Electronic Records (Evidence) Act of 2009;
2.1.11 “Order” shall mean Subscriber’s official customized written purchase and/or procurement order;
2.1.12 “GPRS” means General Packet Radio Service
2.1.13 “SMS” means a short messaging system;
2.1.14 “Short code” means a numbering facility that will be used for sending SMS;
2.1.15 “Third Party” means any person or entity other than the parties
2.1.16 “Sponsored Data” reversed billed internet data traffic
2.1.17 “Toll Free” shall mean the number designated to the customer by Eswatini Post and Telecommunication Corporation (EPTC) and connected via interconnect by Swazi MTN to customer to serve the purposes defined in customer’s order;
2.1.18 “Network” means the MTN Telecommunications network.
2.1.19 “Services” means the telecommunications services provided by MTN as specified in this agreement.
2.1.20 “Service Order Form” – shall mean the Service Order Form(s) which describes the services requested by Subscriber and form a part of this agreement.
2.1.21 “In writing” shall mean written, printed, or partly one and partly another and other modes of representing or producing words in a visible form, includes any typewritten or facsimile communications but excludes any communication by way of a data message, unless use of a data message has been expressly authorized herein. The term “data” has the meaning as defined in the Electronic Records (Evidence) Act of 2009, which is law in Eswatini; “written”, “writing” shall have corresponding meanings.
2.2 If any provision in this clause is a provision imposing rights or obligations on any person or entity, then, notwithstanding that it is contained in this clause, effect shall be given to it as if it were a substantive provision in the body of the agreement;
2.3 In the agreement, unless inconsistent with or otherwise indicated in the context, defined words shall have the meaning ascribed to them in the agreement;
2.4 Any reference to an enactment is to that enactment as at date of signature, as amended or re-enacted from time to time;
2.5 If reference is made in this agreement to any other document for the purpose of defining words or phrases used in this agreement, the applicable definition or description in such document shall be read and interpreted in terms of this agreement as if specifically incorporated.
2.6 A reference to natural persons shall include created entities (incorporated or unincorporated) and vice versa; If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive provision in the body of this agreement, notwithstanding that it is only in the definition clause;
2.7 Wherever in this agreement any number of days (whether simply “days” or business days or working days or calendar days) is prescribed in this agreement, that number of days shall be reckoned exclusively of the first and inclusively of the last day, unless the last day, in the case of calendar days, falls on a Saturday, Sunday or official public holiday in the Kingdom of Eswatini, in which event the last day shall be the next succeeding business day.
2.8 Reference to months or years shall be construed as months or years on the Gregorian calendar and a reference to a month or year means a calendar month or calendar year.
2.9 Expressions or words defined in this agreement shall bear the same meaning in the annexure to this agreement.
2.10 The headings in this agreement have been inserted for convenience only and shall not be used for nor assist or affect its interpretation;
2.11 If any provision and any expression defined herein is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive provision in the body of this agreement.
2.12 Where figures are referred to in numbers and then in words, and if there is any conflict between the two, the words shall prevail. If any provision and any expression defined herein is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive provision in the body of this agreement.
2.13 When any number of days is prescribed in the Agreement same shall be reckoned exclusive of the first and inclusive of the last day unless the last day falls on a Saturday, Sunday or public holiday in Eswatini, in which case the last day shall be the next succeeding business day.
2.14 Appendices and/or Annexures to the Agreement shall be deemed to be incorporated into and to form part of the Agreement. Provided that in the event there is a conflict between a particular provision of the main body of this agreement and any annexure thereof, the provisions in the main body of the agreement prevail and shall be deemed to state the final intention of the parties in that regard.
3. Scope of the Service
3.1 Swazi MTN shall provide the requested telephony service Package to the Subscriber on condition that the Subscriber would abide by this agreement and Swazi MTN operational procedures of the services including (a) The Subscriber cannot transfer the service or a SIM card from one Account to another or any other third party without prior written consent of Swazi MTN. In the event of such transfer, Swazi MTN shall only effect the change upon the Subscriber paying the appropriate fees and ensuring that all outstanding balances are fully settled on the affected MSISDN(s), (b) the Subscriber shall not vary the service/ subscription plan for a minimum duration of twenty four (24) months from the effective date of this Agreement without the prior written consent of Swazi MTN. Where applicable, in the event that the Subscriber varies the service/subscription plan, pro-rata payments for any device collected shall be payable by the Subscriber together with any outstanding liabilities due to Swazi MTN at the time of such variation except for the Elite based package which is period based and shown in Annexure B and (c) in case of loss of a SIM card, the Subscriber shall immediately notify Swazi MTN in writing and on receipt of such notice Swazi MTN will immediately deactivate the lost SIM card and issue a SIM replacement of the lost number. The Subscriber shall pay for any services utilized before the deactivation of the SIM. A standard reactivation fee will be charged by Swazi MTN where necessary.
3.2 For “Sponsored Data”, Swazi MTN shall provide zero rated Data services to enable Subscriber’s users to access and browse the Subscriber’s applications.
3.3 The following shall apply for Roaming MUL:
3.3.1 The usage limit agreement excludes fixed costs (i.e. bundles, subscriptions, etc.) and VAT.
3.3.2 All Calls made and received as well as Data and SMS will be billed to your account.
3.3.3 All Incoming and Outgoing voice, Data and SMS are charged.
3.3.4 All applicable taxes will also be billed to your account.
3.4 The Parties may, by mutual agreement, add additional Services or additional voice numbers by executing additional Service Orders by official letter to Swazi MTN signed by a duly authorized signatory, which shall be incorporated into this Agreement.
4. Obligations of Swazi MTN
4.1 MTN agrees to provide the requested service tothe Subscriber.
4.2 MTN agrees to operate and maintain the service in accordance with this agreement.
4.3 For postpaid service, any particular packageprovided by MTN to the Subscriber comprises:
i. Free optional services (CLIP, Call Conference, & Call Waiting);
ii. Closed User Group (CUG) Functionality which comes as an additional service requested by the Subscriber;
iii. Free Activation of Voicemail & Retrieval;
iv. Credit sale for purchase of Handsets, Modems, Routers bundled with selected postpaid packages;
v. Offer bundle 4G, 3G and Edge devices/handsets to the Subscriber;
4.4 Additional services and tariff levels for all subscribed services are detailed in Annexure B attached herein.
4.5 MTN shall invoice the Subscriber monthly on one account for all services subscribed unless otherwise agreed;
4.6 MTN shall provide available invoicing details on any service number upon written request from the Subscriber.
4.7 MTN shall as much as practicable adhere to credit limits (if any) placed on specific service lines at the request of the Subscriber. Credit Limits shall not be applicable to rental and onetime charges for value added services (VAS).
4.8 Swazi MTN shall timeously communicate any technical errors and glitches which affect the services as soon as these have come to the attention of Swazi MTN to allow the Subscriber to make contingency plans hereto;
4.9 MTN shall timeously inform the Subscriber of any planned outages.
4.10 MTN shall not be liable for any damages which may be incurred by the Subscriber resulting from any technical errors and/or glitches arising from malfunction or failure of its equipment to function; Obligations of the Subscriber
4.11 The Subscriber shall pay MTN for the provision and usage of the services.
4.12 The Subscriber agrees and undertakes to pay all bills which shall include VAT and any other tax levied by the Kingdom of Eswatini on telephone services within thirty (30) days of the invoicing date.
4.13 The Subscriber shall upon execution of this agreement provide where applicable all required documentation including (a) letter of commitment on a company letterhead, (b) a certified copy of Certificate of Incorporation, (c) a letter of reference from Subscriber’s bankers and/or 3 months bank statement, (d) ID copies of authorized signatories and/or Directors of the entity, (e) a certified copy of Form J, (f) a certified copy of Form C, and (g) details of authorised signatory.
4.14 The Subscriber shall inform MTN in writing in the event of any changes to the documents provided in clause 4.13 above.
4.15 Subscriber shall obtain MTN’s approval of all communication that will feature the MTN name, marks and logos;
4.16 The Subscriber undertakes not to default in the payment of bills. MTN reserves the right to disconnect the Subscribers phone numbers or the services in question if the Subscriber defaults in the payment of bills. In the event that the Subscriber’s service is disconnected as described above, MTN shall not be liable in damages for any loss suffered as a result of the said action.
5. Commercial Terms: Tariffs and Payment
5.1 Unless negotiated otherwise by parties, the services provided and utilized by Subscriber shall be charged at the rates provided for in Annexure
B: Price Structure
5.2 Subscriber shall make monthly payments to Swazi MTN for the services provided to it within thirty (30) Days from date of invoice.
5.3 MTN reserves the right to vary the rates and terms and conditions applicable in the tariff plan and will notify the Subscriber of any variations in writing and/or published on the Swazi MTN website.
5.4 The Subscriber shall pay all bills and any other charges that may accrue from the utilization of the services provided by Swazi MTN, payment of which shall be in cash, cheque, bank transfer, debit note or MTN Mobile Money. The Subscriber shall pay all fees levied for any cheque returned unpaid.
5.5 In the case of a debit note, the Subscriber agrees for the Subscriber’s account to be debited in favour of Swazi MTN with the total amount owing each month.
5.6 Services with deposit requirement shall be settled before activation.
5.7 The Subscriber acknowledges and agrees that any credit limits placed on specific lines shall not absolve or in any way exempt the Subscriber from the responsibility of payment of the bills in respect of actual usage as shown on the bills sent by MTN.
5.8 Swazi MTN reserves the right to disconnect the provision of its Services to the Subscriber for non- payment and to take any action deemed necessary to recover the outstanding balance.
5.9 In the event that the Subscriber disputes an invoice provided by Swazi MTN the Subscriber shall, in respect of the undisputed portion of the invoice, pay such amount in accordance with the provisions of clause 5.2 above, pending resolution of the issue in respect of the disputed amount.
5.10 Where, under the provisions of any laws, regulations or directives for the time being in force in Eswatini, Swazi MTN is required to charge any amount, whether as tax or howsoever called, Swazi MTN shall without further assurance to the Subscriber charge the specified amount or rate in addition to the amount payable by the Subscriber. Swazi MTN shall pay over or deal with any amount so charged in accordance with the provisions of the relevant laws or regulations providing for the charge.
5.11 In case the rate of any Tax is increased, decreased, or the Tax abolished, or a new Tax in force which shall be included into the prices, or any change in interpretation or application of such Tax occurs in the course of the performance of this Contract, an equitable adjustment of the price shall be made to address such change, if any.
5.12 Where the Subscriber requests the transfer of a line, originally assigned to the Subscriber, to a third party, the Subscriber shall allow Swazi MTN at least three (3) working days for the transfer of the said line to be effected after the submission of a written request to Swazi MTN. All such requests including termination are to be executed on the 26 th of each month.
5.13 Bills and invoices shall be delivered by electronic mail or other methods at the option of MTN to the address supplied by the Subscriber above. Invoices delivered by electronic mail shall be deemed to have been received on the Business Day following the sending. On the other hand invoices mailed by prepaid first-class post or other means shall be deemed to have been received on the fifth (5 th ) Business Day after the post-marked date thereof. MTN shall endeavor to deliver all electronic invoices before the 5 th Day of the following month. In the event of non- receipt of invoices by the said date, the Subscriber is responsible to notify MTN to deliver same.
5.14 In the event of receipt of an incorrect bill by the Subscriber, MTN reserves the right to recover the correct amount(s) due, when the error is detected.
5.15 Where the Subscriber is in breach of this Agreement and this Agreement is terminated as a result thereof, the balance of the total amounts payable to MTN as provided in the charges section, shall become due and payable, without prejudice to MTN’s rights to all other relief as it may be entitled to at law or in terms hereof.
5.16 Right to Off-set: Where Swazi MTN is indebted to the Subscriber MTN shall have a right to offset any amount due from the Subscriber against its indebtedness.
6.1 Notwithstanding the date of its signature, this Agreement shall commence on the Effective date or the date of activation of service whichever comes first and continue for an initial period first written above and thereafter maybe renewed for a further term up to 24 months upon agreement between the parties, subject to any other periods or time schedules set out in this Agreement in respect of specific provisions of this Agreement.
6.2 MTN shall issue a written communication to the Subscriber and the Subscriber shall confirm by same means certifying the activation of the services concerned.
7.1 Either one of the parties shall be entitled after giving the other, seven (7) days’ notice in writing, to terminate this agreement. In the event of breach of any term(s); where the party in breach fails to remedy such breach when called upon to do so within seven (7) days’ notice; the claiming party shall have the option to claim damages from the party in breach. In the event of either Party being in breach of a material provision of this Agreement and failing to remedy such breach within a period of 7 (seven) days of being advised in writing of such breach by the aggrieved party, the aggrieved party shall be entitled to either:
7.1.1 Claim specific performance;
7.1.2 Cancel this Agreement without further notice;
7.1.3 Claim such damages as it may prove to have suffered.
8. Use of the Service via Subscriber’s Equipment
8.1 The Subscriber is personally responsible for all use of the system/service/service level(s) made from Subscriber Equipment and shall neither use nor permit to use Subscriber Equipment, the system, the service, or the service level(s) for:
i. Sending abusive, offensive, indecent, obscene, or menacing messages or communications, or
ii. Eavesdropping, intercepting or learning the contents of any message or communications without the express consent of the parties concerned, or
iii. Persistent calls that may cause annoyance, inconvenience or needless anxiety to any person, or
iv. Any improper, immoral or unlawful purpose, or for any purpose not recommended by the Equipment manufacturer.
8.2 MTN has the right to treat the use of the System in the contravention of this sub-paragraph 9.1 as a ground for the suspension of the service/service level or termination of this contract.
9. Force Majeure
9.1 Where either party is prevented by “force majeure”; that is to say an act of God, act of war, warlike operations, civil commotion, strikes or any industrial action whatsoever, fire, tempest, pandemic or any other cause or happening beyond its control from executing their mutual obligations; neither party shall be held liable under this Agreement.
9.2 If conditions of “force majeure” persist for a period in excess of fourteen (14) days and such conditions have a material adverse effect on the other party, and the parties are within such period unable to reach written agreement on amendments to the relevant provisions of this agreement to take into account such conditions, the other party may terminate this agreement with immediate effect on written notice.
9.3 It is a specific term of this agreement that Subscriber shall not be entitled to deduct any amounts whatsoever from normal payments in terms hereof in the event of the Swazi MTN not providing the services recorded herein as a result of “force majeure” as set out in this clause or any eventuality and payments shall be effected in full without deduction on due date.
10. Limitation of Liability
10.1 Subscriber hereby indemnifies Swazi MTN and holds Swazi MTN harmless from and against any loss, claim, action, damage or expense suffered or sustained by either party (including any third parties) pursuant to or arising out of any willful or negligent act or omission of the Subscriber, its servants or agents; or arising from the non-fulfillment or breach by Subscriber of its obligations under this Agreement howsoever arising.
10.2 Swazi MTN hereby indemnifies Subscriber and holds Subscriber harmless from and against any loss, claim, action, damage or expense suffered or sustained by either party (including any third parties) pursuant to or arising out of any willful or negligent act or omission of Swazi MTN, its servants or agents; or arising from the non-fulfillment or breach by Swazi MTN of its obligations under this agreement howsoever arising.
10.3 The Parties shall, however, not be liable for any consequential, exemplary, extrinsic, indirect, incidental, punitive, pure economic or special loss or damage of any kind whatsoever or howsoever caused.
11. Duty of Care
11.1 The parties profess to have within their human and other resources the expert professional and technical knowledge and skills to execute their obligations and/or undertakings in terms of this agreement to a particularly high degree of competence to fully and effectively meet and discharge all of the parties’ obligations arising from this agreement.
11.2 The parties warrant that they shall exercise reasonable skill, care and diligence in the performance of their obligations under the agreement.
11.3 The parties shall discharge all of their legal obligations and carry out all their operations in terms of the agreement and in accordance with the specifications and objectives of the provision of clauses 3, 4 and 5 of this agreement, without any overt or covert, subtle, express and/or implied, exhibition of any prejudice on racial, sexual or religious lines towards either party, its employees, representatives and agents;
11.4 The parties undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary to give effect to the terms and purpose of this agreement;
11.5 The parties shall at all times during the subsistence of this agreement observe the principles of good faith towards one another in the performance of their obligations and will accordingly:
a. Act reasonably, honestly and in good faith;
b. Perform their obligations with the necessary skill, care and diligence required, and make full disclosure to each other of any matter that may affect the implementation of this agreement;
12. Variation Any additions, variations, cancellation or novation of this Contract shall be of no force or effect unless reduced to writing and signed for by the duly authorized representatives of the parties. Provided that either one of the parties shall initiate negotiations with a view to reaching such said agreement.
13. Language and Applicable Law
13.1 The language of the Agreement shall be English. The Agreement shall be deemed to be an Eswatini Agreement and shall accordingly be governed and construed according to the laws for the time being in force in the Kingdom of Eswatini. The parties submit to the jurisdiction of the Eswatini Courts for the purposes of any action and proceedings in connection with any legal proceedings whatsoever that may be occasioned and/or brought by one of the parties against the other one of the parties in respect of the agreement. The parties so consent to the jurisdiction of the Eswatini Courts, whether any such said legal proceedings shall be occasioned by a cause of action arising within or without the area of jurisdiction of the Eswatini courts and notwithstanding that any other courts outside Eswatini might ordinarily (or otherwise) have competent jurisdiction over any such legal matter and/or proceedings. Provided that any judgment entered in favour of Swazi MTN and against the Subscriber in connection with this agreement by the Eswatini Courts, shall be binding upon the Subscriber and may irrevocably be enforced against the Subscriber in any other jurisdiction, besides that of the Eswatini Courts.
14.1 The parties hereto choose Domicilium Citandi et Executandi for all purposes of and in connection with this Agreement as follows:
14.2 Swazi MTN:
Lot 14 of Farm 50
Corner of MR103 & Nshakabili Road
P.O. Box 5050, Mbabane, H100
T+268 2406 0000
F+268 2406 0202
Attention: Chief Executive Officer
14.3 In the case of Subscriber, first written above.
14.4 The parties hereby select the physical addresses respectively set out in this Agreement as its address at which all legal notices, legal processes and other related communications must be delivered to it for the purposes of this Agreement.
14.5 Either party hereto shall be entitled to change its Domicilium from time to time, and any such change shall only be effective upon receipt of notice in writing by the other parties of such change.
14.6 All notices, demands, communications or payments intended for either party shall be made or given at such party’s domicilium for the time being.
14.7 A notice sent by one party to another party shall be deemed to be received:
a. on the same day, if delivered by hand or telefax;
b. on the fifth day after posting, if sent by prepaid registered mail.
14.8 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
15.1 The parties hereby undertake that they will not, either during the term of this contract or thereafter, disclose any information of whatsoever nature regarding the matters referred to in or arising out of this contract to any person or themselves utilise the above mentioned knowledge and information in competing with each other
15.2 The parties hereby undertake to keep confidential and protect confidential information, which they acquire during the term of this contract, including in particular but without prejudice to the generality of the afore going, any information relating to the business of the other party.
16. Dispute Resolution
16.1 Any dispute arising out of or in connection with this Agreement, which cannot be amicably resolved, shall unless otherwise stated below, be decided by way of litigation as set out below –
a. The parties consent to the jurisdiction of the High Court of Eswatini at Mbabane in respect of all proceedings which may arise out of or in connection with this Agreement.
b. Provided that in the event of a dispute arising in relation to payment of any sums due payment of the undisputed amount shall not be withheld.
c. Where the amount in dispute is less than 5% of the invoice the parties shall compare each party’s relevant data and reach agreement;
d. Should the parties fail to agree an independent auditor shall be appointed to investigate and produce findings which shall be binding on the parties; e. The cost of the audit shall be for the account of the unsuccessful party.
17.1 Notwithstanding the provisions of clause 7, either party (“the aggrieved party”) may terminate this Agreement forthwith by notice in writing to the other party if: –
a. the other party commits a breach of any of the terms of this Agreement and fails to remedy such breach within (7) seven days of written notice from the aggrieved party specifying the nature of the breach and requiring its remedy; or
b. the other party commits a second (2nd) or subsequent breach of this Agreement after having remedied an earlier breach during the preceding (6) months’ duration after written notice to do; or
c. there is a change of ownership (meaning a change of ownership of more than (50%) fifty per centum of the entire issued share capital of the other party) of the other party or if the other party is placed under provisional or final liquidation or under provisional or final receivership or judicial management, or if the other party becomes insolvent or compromises or attempts to compromise with creditors; or
d. the other party commits an act which would be an act of insolvency (as defined in the Insolvency Act from time to time) if committed by a natural person; or
e. the other party, after the Effective Date disposes of the whole or a material part of its business other than for purposes of internal reconstruction.
17.2 Notwithstanding the provisions of Clause 7 MTN may terminate this Agreement forthwith by notice in writing to Subscriber, if MTN’s license is terminated for any reason whatsoever irrespective of whether or not such cancellation occurs by virtue of the fault of MTN.
17.3 Notwithstanding the provisions of clause 7, this Agreement can also be terminated by either party giving thirty (30) days’ notice in writing to the other party.
17.4 The parties’ rights to terminate this agreement in terms of this clause 18 shall not be construed as a limitation on any other rights which they may have in law arising out of a breach or anticipated breach of the terms of this Agreement, and are additional to any other such rights.
17.5 On termination of this agreement, through the normal effluxion of time or by whatever other mechanism, the provisions thereof in respect to already accrued rights of the parties shall not be affected by such termination.
18. Cession and Assignment Neither Party may cede or assign its rights and/or obligations hereunder to any third party without the prior written consent of the other Party.
19. Regulatory Requirement
19.1 Subscriber undertakes that should it, during the subsistence of this agreement, decide to use the short code for gaming purposes, it shall seek and be granted the relevant gaming license and/ or authorization by the Gaming Board, being the relevant Regulatory Body responsible for gaming in Eswatini, prior to engaging in any gaming activities.
19.2 Subscriber hereby indemnifies and holds MTN harmless from and against any loss, claim, action, damage or expense suffered or sustained by MTN pursuant to or arising out of any wilful or negligent act or omission by the Subscriber, its servants or agents, or arising from the non-fulfilment or breach by the Subscriber of its obligations under this Clause 23, howsoever arising.
20. Whole Contract This Contract constitutes the whole agreement between the Parties as to the subject matter hereof and no agreement, representation or warranties between the Parties other than those set out herein are binding on the Parties.
21. Relaxation No latitude, extension of time or other indulgence which may be given or allowed by any Party to any other Party in respect of the performance of any obligation hereunder or enforcement of any right arising from this Contract and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Contract or stop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
22. Business Ethics
22.1 MTN is committed to a policy of openness and integrity in the conduct of its business. The Parties shall therefore conduct this transaction honestly and fairly; and shall comply with all applicable laws, or other act of any applicable governmental authority (collectively, “Laws”) that are applicable to this Agreement and the performance of their obligations herein, including those pertaining to labour, tax, health, safety, and the environment.
22.2 Each Party represents and warrants to ensure that prior to the performance of their respective obligations herein, its subcontractors, and their respective employees and agents will be familiar with and knowledgeable about the applicable Laws. Each Party shall at all times retain exclusive control over and shall be solely responsible for evaluation, implementation, and all other decisions relating to applicable Laws as they pertain to performance of their obligations herein.
22.3 Political Neutrality: The Parties shall further conduct their business in a completely ethical and transparent manner; and shall not directly or indirectly offer, promise or deliver anything of value to government officials in order to improperly influence governmental acts or so as not to derive any unfair advantage in each other’s institution and shall function in a manner which can contribute to the moral regeneration of the community while ensuring maintenance of acceptable standards of both personal and corporate governance so as to benefit all associated entities. The Subscriber shall neither say nor do anything to bring the name of MTN into disrepute and shall among other things, ensure that it does not jeopardize the politically neutral status of MTN. The Subscriber in engaging its representatives and other assigns shall ensure by Agreement that such representatives and other assign do not do or say anything that shall bring the name of MTN into disrepute or to jeopardize the politically neutral status of MTN.
22.4 MTN Anti-Bribery and Corruption:
22.4.1 MTN has a zero tolerance for bribery and corruption. MTN therefore enjoins each Business Partner to ensure compliance with this policy.
22.4.2 MTN requires the Subscriber as well as its subcontractors, directors and officers to observe the highest standard of ethics during the procurement and performance of this Agreement.
22.4.3 Under the zero tolerance policy, MTN charges both MTN and the Subscriber’s employees to report any knowledge or awareness of improper and unethical conduct that breaches MTN’s Anti-Bribery and Anti-Corruption Policy which is available on MTN’s website (www.mtn.co.sz).