BANDWIDTHBAR'S GENERAL TERMS
These are the general terms of our relationship that include the duration of the Agreement, fees payable by you, BandwidthBar's right to monitor communications and content in specific circumstances, steps to protect the security of your data and BandwidthBar's systems, when BandwidthBar is authorised to suspend or terminate your services, and the resolution of disputes between us.
Summary of our General Terms:
- The Agreement will commence when BandwidthBar provides you with a username and password.
- By submitting an application form and placing an order online via our website, you confirm that you are prepared to accept electronic invoices from BandwidthBar for purposes of claiming input tax.
- The Agreement is binding unless and until you or we give notice to terminate.
- We may change the features or functionality of any Service over time.
- You must comply with the Acceptable Use Policy that applies to your use of the Services.
- We can prevent your access to the Service/s if you breach the Agreement or for technical reasons.
- You accept that you will get no rights to the intellectual property in BandwidthBar's computer systems.
- Subject to your right to withdraw your consent in certain instances, we may obtain your personal information and use it, for certain specified purposes, including for, internal BandwidthBar marketing and contract administration as well as to enable us to collect your debit order payment.
- Our liability to you is substantially limited.
- The Agreement is subject to South African law.
- We will use your given address as your address for service.
This clause will apply to the BandwidthBar Hosting Terms, unless a contrary intention appears.
1.1 The clause headings in the BandwidthBar Hosting Terms have been inserted for purposes of convenience only and will not be taken into consideration in its interpretation.
1.2 Any reference to
(i) the singular includes the plural and vice versa,
(ii) any gender includes the other genders and
(iii) a natural person includes a juristic person and vice versa.
1.3 The rule of construction that a contract must be interpreted against the party responsible for the drafting or preparation of the contract, will not apply to this Agreement and the Parties waive any rights they have to rely on the rules.
1.4 Unless the context indicates a contrary intention, the words and expressions defined in clause 2 will, throughout the BandwidthBar Hosting Terms, bear the meanings assigned to them in that clause 2 and similar expressions will bear corresponding meanings.
1.5 Any reference to "days" will be construed as being a reference to calendar "days" unless qualified by the word "business" in which instance a "business day" will be any day other than a Saturday and a Sunday or a public holiday as gazetted by the Government of the Republic of South Africa from time to time. Any reference to "business hours" will be construed as being the hours between 08h30 and 17h00 on any business day.
1.6 Whenever "including" or "include", or "excluding" or "exclude", together with specific examples or items follow a term, they will not limit its ambit.
1.7 Terms other than those defined within these General Terms will be given their plain English meaning, and those terms, acronyms, and phrases known in the Information Technology industry will be interpreted in accordance with their generally accepted meanings.
1.8 Defined terms appearing in these General Terms in title case will be given the meaning as defined, while the same terms appearing in lower case will be interpreted in accordance with the ordinary meaning as qualified by clause 1.7 and will, unless the context otherwise indicates, include the term as defined.
In the BandwidthBar Hosting Terms, unless inconsistent with or otherwise indicated by the context, the following terms will have these meanings:
2.1 "Agreement" means the contract entered into between BandwidthBar and the Customer consisting of, amongst others, the BandwidthBar Hosting Terms and any application form or addendum completed by the Customer;
2.2 "Application Form" means the application form completed by the Customer using BandwidthBar’s online order process for the initiation of the individual Service/s as may be amended from time to time under the Agreement and specifically includes any offline and paper versions of the Application Form;
2.3 “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa;
2.4 "Commencement Date" means the date when a customer profile is created and BandwidthBar furnishes the Customer with the Customer Data;
2.5 Customer" means:
i. the person identified on the application form or in any addendum, relating to the relevant Service subscribed for by the Customer and in the case of a Domain Name,
ii. a Reseller enrolled under the BandwidthBar Reseller programme who hosts directly with BandwidthBar;
2.6 "Customer Data" means any username, password, or e-mail address provided by BandwidthBar to the Customer as part of the Services, but expressly excluding Customer Domains managed by BandwidthBar as part of the Services;
2.7 "General Terms" means these terms and conditions;
2.9 "Intellectual Property Rights" means all patents, trademarks, service marks, design rights, copyright, trade or business name, know-how, concepts, ideas, methods, procedures, processes, techniques, models, reports, templates, or software (or any changes or additions and other similar rights or obligations) whether or not registerable, registered or application for registration has been made in any party of the world;
2.10 “ISPA” means the Internet Service Providers’ Association of South Africa;
2.11 "Marks" means any trademarks, logos, brand names, domain names or other marks of either of the Parties;
2.12 "Party" and "Parties" means BandwidthBar and the Customer;
2.13 "Services" means the services provided by BandwidthBar to the Customer;
2.14 "Service Fees" means fees and charges payable by the Customer to BandwidthBar in respect of the Services, which Service Fees are dealt with in clause 7 and are set out in the application form/s, and any addenda, completed by the Customer in respect of the Services;
2.15 "Specific Terms" mean the terms and conditions which supplement the General Terms and govern the use of individual Services selected by the Customer;
2.16 "Website" means the website from which the Services are provided, currently being www.bandwidthbar.co.za
3. BandwidthBar Hosting Terms
3.1 BandwidthBar provides the Services to its Customers subject to the BandwidthBar Terms.
3.2 These General Terms govern the contractual relationship between the Parties, duly supplemented by the Specific Terms.
3.3 To the extent that:
3.3.1 any individual Service selected by the Customer is not dealt with in the Specific Terms, the individual Service will be governed by the General Terms and Acceptable Use Policy;
3.3.2 any Specific Terms are binding upon the Customer, those Specific Terms are deemed included in the BandwidthBar Hosting Terms.
3.4 The Acceptable Use Policy represents the terms and conditions pertaining generally to the Customer's use of the Services and specifies the activities prohibited by the Customer and is intended to enhance the use of the Internet by preventing unacceptable use. The Customer is required at all times to comply with the Acceptable Use Policy, which is deemed to form part of the BandwidthBar Hosting Terms. The Acceptable Use Policy, as amended from time to time, is posted on the Website.
4. Amendment to BandwidthBar Terms
This clause will apply to the BandwidthBar Terms, unless a contrary intention appears.
4.1 BandwidthBar reserves the right, at any time, to amend any of the BandwidthBar Terms to which the Customer is bound without specific notice to the Customer. An updated version of the BandwidthBar Terms will be posted on the Website.
4.2 It is the Customer’s responsibility as a diligent user to peruse any amended BandwidthBar Terms posted on the Website and the Customer undertakes to regularly visit the Website so as to remain advised of the amended BandwidthBar Terms.
4.3 If the Customer objects to any amended BandwidthBar Terms that are binding upon it or are to become binding upon it, the Customer is entitled to terminate its relationship with BandwidthBar.
5. Customer Status
5.1 The Customer may be an incorporated entity (such as a company or close corporation), trust, partnership, or individual.
5.2 If a person enters into the Agreement in a representative capacity on behalf of a Customer who is an incorporated entity or on behalf of an unincorporated entity, or in any other representative capacity recognised in South African law, the person warrants that: i. they are legally authorised to do so and indemnifies BandwidthBar against any loss or damage that BandwidthBar may sustain resulting from the person's lack of authority;
ii. all the information supplied to BandwidthBar at any time relating to the entity, trust, partnership, association or other person who they represent is true, accurate, and complete.
5.3 BandwidthBar reserves the right to treat all misrepresentations by the Customer or the person representing it as fraud and the person indemnifies BandwidthBar against any loss or damage that BandwidthBar may sustain resulting from the person's lack of authority.
5.4 If BandwidthBar discovers that the Customer has fraudulently contracted for the receipt of Services or that its representative has contracted without contractual capacity to do so, BandwidthBar may terminate the BandwidthBar Hosting Terms or Service/s immediately without any further liability to the Customer and the Customer may not claim any restitution or refund of any amount already paid, regardless of whether the Customer has used the Services or not.
5.5 The Customer will, if requested by BandwidthBar, furnish BandwidthBar with sufficient evidence of the authority of the person who will, on behalf of the Customer, take any action or execute any documents required or permitted to be taken or executed by the person under the Agreement. This would include providing proof of permission to debit from the authorised signatory of the Customer's bank account.
5.6 If a dispute arises between individuals or entities involved with the Customer (including partners, shareholders, trustees, employees), BandwidthBar may act on the representation of a person claiming to be duly authorised to represent the Customer, without being obliged to obtain independent verification of the authority. The Customer indemnifies BandwidthBar from any action or inaction based on the representation. However, if BandwidthBar, in its sole and absolute discretion, requires independent verification of the authority of any individual, the Customer must provide it in a format reasonably acceptable to BandwidthBar.
6. Commencement and Duration
6.1 The application form submitted by the Customer to BandwidthBar will be treated as an offer by the Customer to make application for the Service/s. The Customer's offer will only be deemed to have been received by BandwidthBar once this has been confirmed to the Customer by BandwidthBar. Although the Website is configured to confirm receipt of any offer ("Confirmation"), technical or other problems may delay or prevent the Confirmation. The Customer should contact BandwidthBar if it does not receive Confirmation from BandwidthBar shortly after having sent the offer. Confirmation will not mean that a transaction has been concluded. It merely serves to confirm that the application has been received by BandwidthBar. Confirmation is deemed to have been sent by BandwidthBar as soon as this is reflected in BandwidthBar's log files.
6.2 The BandwidthBar Terms will commence and become binding on the Customer with effect from the Commencement Date.
6.3 The BandwidthBar Terms will endure for an indefinite period until terminated.
7. Service Fees
7.1 All Service Fees payable by the Customer are payable in advance.
7.2 Where applicable, BandwidthBar will furnish the Customer with a VAT invoice in electronic format. The Customer agrees that by submitting an application form to BandwidthBar when making application for the Service/s, that the application constitutes confirmation by the Customer to accept electronic invoices for purposes of claiming input tax.
7.3 The Service Fees will be payable on a monthly basis.
7.4 The Service Fees will be paid by way of debit order and the Customer authorises BandwidthBar to effect the necessary transfers from the Customer's designated bank account at the beginning of each and every month for the continued duration of the BandwidthBar Terms. The Customer must put the debit order in place within seven days of the Commencement Date.
7.5 Where the Customer's use of any service commences during a month rather than at the start of that month, the Customer will be charged on a pro rata basis for those Services provided during that month.
7.6 BandwidthBar reserves the right to amend or vary the Service Fees from time to time and any amendment or variation of the Service Fees will be deemed to be an amendment of the BandwidthBar Terms. If BandwidthBar does amend its Service Fees, it will give the Customer at least 30 days prior notice. If the Customer objects to any amended Service Fees that affect it, it may terminate its relationship with BandwidthBar under clause 14.7.
7.8 The Customer may not withhold any payment of any amount due to BandwidthBar for any reason, including any alleged breach of the BandwidthBar Terms by BandwidthBar. In addition, the Customer may not:
(i) set-off against; or
(ii) demand any discount, refund (other than under clause 7.10), or reduction in respect of,
any Service Fees owed to BandwidthBar.
7.9 The Service Fees are inclusive of value added tax. The Customer will pay any increase in Value Added Tax.
7.10 If a dispute arises between the parties, the Customer must continue paying the Service Fees as and when they become due and payable under the BandwidthBar Terms.
7.11 The Customer may terminate the Service within:
7.11.1 seven days after the Commencement Date if the Customer decides not to continue subscribing for the Service/s; or
7.11.2 within thirty days after the Commencement Date if BandwidthBar fails to meet the service levels for hosting services and e-mail services as specified in the Specific Terms, provided that the Customer's right to terminate must be exercised by notice from the Customer to BandwidthBar transmitted via e-mail to firstname.lastname@example.org.
8. RICA Act
Due to the introduction of the Rica act, and complying with section 39 of said act. We require the following documents. Documents must be certified and posted to us.
(i) Clear copy of the persons ID Document. (Must have Name, Id number and Photograph Present.)
(ii) Proof of residential and postal or Business Address. (Utility bill etc.)
(iii) Completed order form for ADSL.
In case of a company, we need the following in addition to the above.
(i) Company CK documents, with the company registration number present.
(ii) A Company letterhead.