Is it legal?

[Rustum]

Nope, only this:

4.2 The Service Provider may, by written notice to the Subscriber, vary future charges, either in whole or in part, with effect from the date specified in such notice.

But, looking through the T&C, some of the stuff is quite shocking, scaringly shocking:

4.10. The monthly statement shall be sent by Service Provider to the Subscriber at the e-mail address supplied by the Subscriber in the application form in writing to Service Provider. It shall be the duty of the Subscriber to check the statement in order to ensure that the contents thereof are correct. Unless a query is raised in respect of the contents of the statement within 30 days from the date thereof, the contents of the statement shall be deemed to be correct.

So, if there's double billing but you are slackerly with your admin...

Then :

4.14 The Subscriber indemnifies and holds the Service Provider harmless for any loss suffered as a result of incorrect amounts being debited in respect of applicable charges.

 

[xrapidx]

I can't see 4.2 enforceable... sign you up for R200, then a month later put it up to R250?

 

[Rustum]

@Rapid

The new specific T&C is up: http://www.iburst.co.za/default.aspx?link=profile_legaldoc&blogs=38 and that doesn't mention anything about how old and new packages relate in a legal sense.

But my point is in any case that the indemnity clauses in the general T&C mean that you can't hold the company responsible should they change the products: fees can vary, services can vary.

The whole range of legal documents are here:

http://www.iburst.co.za/default.aspx?link=profile_legal

 

[Rustum]

I can't see 4.2 enforceable... sign you up for R200, then a month later put it up to R250?

Subscription services do that constantly. Well, not so quickly, but yes, subscription fees do rise over time, and that is what 4.2 is about. In general, people accept that fees will rise with time. The administration of that, especially when introducing packages that supplant old packages, is at issue.

So all I'm saying is that the subscriber inevitably doesn't have a legal leg to stand on when it comes to corporations changing provisioning and fees. Maybe some legal eagle can intervene here, but I think it will be hard to call 'breach of contract'.

I'm not defending iBurst, god no; just pointing out how iBurst, like most corporations, cover themselves against these eventualities.

 

[xrapidx]

Yeh - I get that, but a contract has to be fair, so if they change the core product you signed up for, you should be able to legally challenge the contract itself (if you wanted to go through the hassle).

Although I'm pretty sure Jannie will do what's fair in three months time.

 

[AnomalyNexus]

I can't see 4.2 enforceable... sign you up for R200, then a month later put it up to R250?

Depends of how the part specifying price was phrased. If the contract says R200 then it won't be. However in so instances it can be. e.g. Floating interest rates kinda thing.

So all I'm saying is that the subscriber inevitably doesn't have a legal leg to stand on when it comes to corporations changing provisioning and fees.

I reckon the law will favour the customer here.

I suspect that many lawyers know that these things will die a quick death in a court case but put it in none the less for good measure. 90% of the customers won't be able to judge whether something will fly in court.

 

[Gekco]

So all I'm saying is that the subscriber inevitably doesn't have a legal leg to stand on when it comes to corporations changing provisioning and fees. Maybe some legal eagle can intervene here, but I think it will be hard to call 'breach of contract'.

I'm not defending iBurst, god no; just pointing out how iBurst, like most corporations, cover themselves against these eventualities.

It's quite scary really.

 

[jannievanzyl]

Ambo's take on this process is 100% correct and is in line with all communications.

 

[Mental-Tree]

What does your contract say about changing terms?

Iburst withholds the right to make changes to pricing/packages/ect. and only they can call a breech in the contact. Who ever typed their contract terms out for them did a dam fine job of it and to make sure you dont read the contract before signing it they print the WHOLE thing out in fine print lol. Basically if you signed the contract your stuck in it and only iburst can declare a breech:wtf:

 

[Rustum]

Iburst withholds the right to make changes to pricing/packages/ect. and only they can call a breech in the contact. Who ever typed their contract terms out for them did a dam fine job of it and to make sure you dont read the contract before signing it they print the WHOLE thing out in fine print lol. Basically if you signed the contract your stuck in it and only iburst can declare a breech:wtf:

You mean reserves the right?

 

[xrapidx]

Iburst withholds the right to make changes to pricing/packages/ect. and only they can call a breech in the contact. Who ever typed their contract terms out for them did a dam fine job of it and to make sure you dont read the contract before signing it they print the WHOLE thing out in fine print lol. Basically if you signed the contract your stuck in it and only iburst can declare a breech:wtf:

A contract is expect to be fair (AFAIK) so unfair terms would be challengeable in court?

 

[Vrotappel]

Is there not a new Consumer Protection Act to be coming in soon. Hopefully it will deal with corporates who think that they can change t&c's at a whim. Personally I don't think iBurst will be able to enforce changes to the throttle with contract customers as it clearly changes the originally agreed upon product completely.

 

[Mental-Tree]

You mean reserves the right?

Lol yeah that one. Any way you can try and take this matter to court but you wont achieve anything and you'll end up spending a whole lot of money on legal fees

 

[diabolus]

Is there not a new Consumer Protection Act to be coming in soon. Hopefully it will deal with corporates who think that they can change t&c's at a whim. Personally I don't think iBurst will be able to enforce changes to the throttle with contract customers as it clearly changes the originally agreed upon product completely.

That can be found here:
http://www.sapga.co.za/Consumer Protection Act.pdf

I don't think everything is yet in place [April 2010 i think?]. Alot of goodies in there actually, and i guess it is as open-ended as the Terms and Conditions of most companies too...


The section that relates to this discussion i guess is somewhere around here:

PART G
Right to fair,just and reasonable terms and conditions

48. Unfair,unreasonable or unjust contract terms
49. Notice required for certain terms and conditions
51. Prohibited transactions, agreements, terms or conditions

...
48.

[1] A supplier must not--
(c) require a consumer , or other person to whom any goods or services are supplied at the direction of the consumer--
(i) to waive any right;
(ii) assume any obligation;or
(iii) waive any liability of the supplier--
on terms that are unfair,unreasonable or unjust or impose any such terms as a condition of entering into a transaction

[2] a transaction or agreement , a term or condition of a transaction or agreement or notice to which a term or condition is purportedly subject is unfair,unreasonable or unjust if--
(a) it is excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied

(c) the consumer relied upon a false, misleading or deceptive resprentation, as contemplated in section 41 or statement of opinion provided by or on behalf of the supplier to the detriment of the consumer...

Also ICASA got some regulations themselves, i'm specifically thinking of the "Handset Subsidies" regulation and the "End user service subscriber charter". Unfortunately ICASA's site is pretty crappy and do not actually give proper details on that "End user service subscriber charter" thing, but only the Handset Subsidies which covers:
http://www.icasa.org.za/tabid/193/Default.aspx

The Independent Communications Authority of South Africa (ICASA) has published regulations in relations to the handset subsidy. Amongst other things, the regulations indicates that post paid and pre-paid offerings or packages that include handset subsidies must clearly indicate the subsidy and the monetary value of the services offered by a licensee, its agent or a reseller.

Further the regulations indicate that post-paid contract may be concluded for periods ranging from six months, twelve, eighteen months, but not more than 24 months

 

[SG-Atlantis]

hi ambroseg1,

Could you give me the details for the person you contacted at iburst. should they allow us to go back to the old package where we are capped at 64kbps i wouldnt mind staying with them but right now im firm set on going with telkom thanks to their new rip off packages.

 

[milomak]

as stated earlier, those provisions are generally included to be able to make the administrative side easy for things like annual increases etc.

however the clause as it stands does allow them to make some sweeping changes at their discretion. this is where common law steps in, in that if the changes are materially different to what you originally signed; you could argue that they are such that you would not have signed the contract originally.

how one would prove materially different and what measure the court would hold is another matter. on would think that a consumer protection organisation would err on the side of the customer on this.

 

[TK-Sp3cialiSt]

I am sure that anyone that opted out of the PPU service could be seen to require the 64k service, by this info alone, a sensible person would see that the service we wanted and signed up for was the 64k throttled account....using that information a decent lawyer could argue that removing this from our accounts is unlawful, and would require it to be reinstated....

:twisted: :twisted: :twisted: