1 Definitions And Interpretation
1.1 In this Agreement, the words hereunder will have the meanings assigned to them below:-
1.1.1 “Agreement” means these Standard Terms and Conditions and any Application Form, Schedules, Annexures and attachments hereto;
1.1.2 “Application Form” means the application form to which these Terms and Conditions are attached
1.1.3 “Customer” means the party specified as Customer on the Application Form to which these Standard Terms and Conditions are attached;
1.1.4 “Customer Support Information” means the application containing customer support information which may be obtained from Bridgenet on request;
1.1.5 “Effective Date” means, notwithstanding the date of signature of this agreement, the date when the Service/s is commissioned by Bridgenet for use by the Customer irrespective of whether or not the Customer uses the Service/s;
1.1.6 “Bridgenet” means Bridgenet Technologies (Pty) Limited with registration number 2009/023963/07;
1.1.7 “Initial Period” means the initial contract term of the Service/s, as set out in the application form and agreement
1.1.8 “Proprietary Information” means any and all trade secrets and data/information of a proprietary and/or confidential nature, including data/information that the parties should reasonably have
known to be proprietary or confidential;
1.1.9 “Service/s” means all the service/s provided by Bridgenet as specified in the Schedules to this Agreement, including all software and equipment necessary for the provision of the Service/s;
1.1.10 “Equipment” means equipment supplied by IS to the Customer on the basis of a loan, rental or otherwise, to enable the Customer to utilize the Services
1.1.11 “Once Off Costs” means the once off initial costs charged to the Customer as set out in the Cost Schedule,
for the set up and/or installation of the Software, Equipment and/or Services;
1.1.12“Monthly Costs” means the monthly fee payable by the Customer to Bridgenet in consideration for the provision of the Service/s;
1.1.13 “ECNS Provider” means one of the electronic communication network service providers licensed to provide those services in terms of the Electronic Communications Act 36 of 2005
1.1.14 “Schedule/s” means the Schedules/application forms and agreements attached hereto wherein the service specifications of each of the Service/s, and the costs related thereto are specified, which may be amended from time to time;
1.1.15 “VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991.
1.1.16 “South African Law” means all and any laws and regulations of the Republic of South Africa, including but not limited to applicable codes of conduct, as may be promulgated or amended from time to time.
The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.
2.1 The Effective Date of this agreement is the date upon which the signatory of this agreement takes delivery of the equipment, as stated in order to provide the service/s, the date upon which the first of the Services and each subsequent effective date listed in each schedule provided to the customer in terms of this agreement, have been commissioned. Should the effective date occur after the date of signature of the agreement, nothing herein contained shall be construed so as to give either party the right to cancel or rescind the Agreement before the effective date.
2.2 If at any time during the currency of the Agreement, the Customer upgrades the service, then the Effective Date in respect of the Service/s as upgraded shall be the date when the upgraded Service/s first commences.
2.3 The duration period of each of the Services shall be as specified in the relevant Schedules.
2.4 The Agreement shall commence upon the effective date and shall endure until the termination date of the last of the Schedules.
3.1 All Service/s provided are to be billed as of the Effective Date. In the event of a single Service consisting of a number of components, billing will commence for each respective component of that Service as and when each component of that Service goes live.
3.2 Customer is responsible for and agrees to pay to Bridgenet all fees for the Service/s specified in the Service Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
3.3 All prices specified in the Service Schedule exclude:
3.3.1 VAT and any other any taxes and duties including any regulatory surcharge, which
Customer becomes obligated to pay by virtue of this Agreement, and
3.3.2 All and any ECNS provider service fees, for which Customer agrees to make payment
directly to the ECNS provider on such terms as are agreed between the ECNS provider and
Customer, and shall at all times be the responsibility of the Customer.
3.4 Invoicing will be processed and delivered in advance, and all invoices for Services shall be paid monthly in advance.
3.5 In the event of any dispute arising as to the amount or calculation of any fee or charge to which Bridgenet is entitled, the dispute shall be referred for determination to Bridgenet’ auditors. They shall act as experts and their decision shall be final and binding on Bridgenet and Customer. The cost of the determination shall be paid on demand by the party against whom the determination is made, or as determined by the said auditors.
3.6 Any amount falling due for payment by Customer to Bridgenet in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two present (2%) charged by Standard Bank from time to time, monthly in arrears
3.7 Reconnection and admin fees may be charged when client manual, or debit order payments fail to be paid or reflect on time
3.7 Bridgenet shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the monthly fees referred to in the Service Schedule, provided that:
3.7.1 Bridgenet shall not be entitled to increase the monthly fees during the first 12 (twelve)
months of this Agreement; and
3.7.2 Bridgenet shall not increase the fees on more than one occasion in any subsequent 12
(twelve) month period of this Agreement.
4.1 Customer shall comply strictly with all restrictions imposed on computer networks through which any information and/or data transmitted by Customer passes.
4.2 Customer shall not commit nor attempt to commit any act or omission w hich directly or indirectly:
4.2.1 damages in any way Bridgenet’ technical infrastructure or any part thereof;
4.2.2 impairs or precludes Bridgenet from being able to provide the Service/s in a reasonable and business-like manner;
4.2.3 constitutes an abuse or malicious misuse of the Service/s; Or is calculated to have the
abovementioned effect. In such an event, should Bridgenet incur expenses to remedy the
situation, Bridgenet reserves the right to charge the Customer the amount necessary t o cover
Bridgenet’s additional expenditure. Notwithstanding the above, Bridgenet reserves the right to
take any other appropriate action it may deem necessary to remedy the situation.
4.3 Customer is prohibited from modifying any equipment (including but not limited to router
equipment) utilised by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such equipment.
4.4 Customer shall at all times adhere to and ensure compliance wit h the Customer Support
4.5 Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against Bridgenet, its servants, its agents or any other persons for whom it may be liable in law (and in whose favour this provision constitutes a stipulation alter) if Bridgenet interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to Bridgenet or in the circumstances contemplated in clause 6.4 below.
4.6 Customer may not at any time use the Service in contravention of any South African law. In
particular, Customer undertakes to familiarize itself and ensure that it is kept continuously
appraised of all South African law in force from time to time which has any bearing on the Service and/or its use. Customer acknowledges that Bridgenet has no obligation to assist Customer in this regard.
4.7 Bridgenet is obliged to protect its technical infrastructure against security threats and to protect the interests of its customers by ensuring that the conduct of no one customer prejudices the user experience of the other customers.
5.1 To the extent that the provisions of the CPA are applicable to this Agreement, in the event that the Customer alleges that there is a defect in the quality of the Services, the only remedy that the Customer will have against Bridgenet, is to require and allow Bridgenet to remedy the defect in the quality of the Services performed.
5.2 If Bridgenet has supplied equipment to enable the customer to utilize the services in the circumstances set out in clause 5.1, defects in the equipment will be dealt with and warranted by the manufacturer of the equipment and under the manufacturer’s specific warranty conditions
6.1 Save as expressly set out in this Agreement, Bridgenet does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
6.2 Without limitation to the generality of 6.1 above, Bridgenet does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
6.2.1 will be preserved or sustained in its entirety;
6.2.2 will be delivered to any or all of the intended recipients;
6.2.3 will be suitable for any purpose;
6.2.4 will be free of inaccuracies or defects or bugs or viruses of any kind; or
6.2.5 will be secured against intrusion by unauthorised third parties; Bridgenet assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 6.
7.1 Except as otherwise expressly provided herein to the contrary, Bridgenet shall not be liable to Customer or any third party for any loss or damage of whatsoever nature and/or howsoever
arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Bridgenet or against
Customer by any party, arising directly or indirectly out of the Service/s, their use, access,
withdrawal or suspension or out of any information or materials provided or not provided, as the case may be.
7.2 Subject to clause 6.1 above, the entire liability of Bridgenet and Customer’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by Customer under this Agreement for the period of 12 (twelve) months preceding C ustomer’s written notice to Bridgenet in respect of such claim.
7.3 Customer hereby indemnifies Bridgenet against and holds Bridgenet harmless from any claim by any third party arising directly or indirectly out of access to or use of the Service/s or info rmation obtained through the use thereof or in respect of any matter for which liability of Bridgenet is excluded in terms of clause 6.1 above.
7.4 Because of the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended from time to time, and all liability on the part of Bridgenet of any loss or damage (whether direct or consequential) thereby incurred or f or any costs, claims, or demands of any nature arising therefrom, is excluded, and the provisions of clause 6.1 above
shall apply mutatis mutandis to such exclusion. Should the provision of the Service/s be suspended by Bridgenet for the purpose aforementioned for a period in excess of 72 (seventy
two) consecutive hours, Bridgenet shall give Customer credit in an amount which represents a prorata portion of Customer’s basic monthly subscription fee for the month during which the said suspension occurred.
7.5 Where the Service/s provided include Hosting Services, then, notwithstanding anything to the contrary contained in this Agreement, Bridgenet reserves the right in its absolute discretion and after the receipt by Bridgenet of any complaint from any governmental department, or any other third party (including but not limited to any Internet industry body or any other organisation) that Customer’s web site contains information that infringes against any third party’s rights in terms of the Constitution of the Republic of South Africa, the Electronic Communications and Transactions Act, any other legislative enactment or regulation in force from time to time, or is defamatory in nature, to immediately give written notice to Customer of Bridgenet’ intention t o remove the offending information or any portion thereof from Customer’s web site. Should such offending information not be removed from the web site by Customer within 24 hours of written notice to that effect, Bridgenet shall be entitled to immediately remove the offending information or any portion thereof from Customer’s web site, or where it is not possible to remove such Content, to terminate the Hosting Services of such Customer. Any removal or termination by Bridgenet shall in no way constitute a breach by Bridgenet of this Agreement.
Any specifications, descriptive matter, drawings and other documents which may be furnished by Bridgenet to Customer from time to time:
8.1 do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement;
8.2 shall remain the property of Bridgenet and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in Bridgenet. Such documents shall be returned to Bridgenet on demand.
9.1 Subject to the provisions of clause 9.3 to the contrary, if Customer hereto:
9.1.1 breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from
9.1.2 commits any act of insolvency;
9.1.3 endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice Bridgenet’ rights hereunder or at all;
9.1.4 allows any judgement against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
9.1.5 is placed in liquidation or under judicial management (in either case, whether provisionally or finally) or, being an individual, his estate is sequestrated or voluntarily surrendered; Bridgenet shall have the right, without prejudice to any other right which it may have against
a) suspend or terminate the Services;
b) treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until Customer has remedied the breach; and/or
c) cancel this Agreement; in any event without prejudice to Bridgenet’ right to claim damages .
9.2 Customer shall be liable for all costs incurred by Bridgenet in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal
proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
9.3 Subject to what is set out in Clause 8.1.1 above, Bridgenet shall be entitled to suspend the
provision of the Services where Customer breaches any provision of this Agreement or where any payment to Bridgenet is overdue by more than 30 (thirty) days.
10.1 Notwithstanding anything set out in Clause 10 below, all Bridgenet intellectual property (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to Bridgenet. Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by Bridgenet, or any of its third party suppliers. Bridgenet shall notwithstanding anything to the contrary, have no right, title or interest in any intellectual property that belongs to the Customer and/or that the Customer has the lawful entitlement to.
10.2 Customer warrants that it shall not use the Service/s to produce, host or present any content in contravention of any person’s intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party’s intellectual property rights. Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to 3rd parties.
11.1 Each party will keep in confidence and protect Proprietary Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement. Either party
acknowledges that unauthorised disclosure or use of Proprietar y Information may cause
substantial economic loss. All printed materials, containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for either party’s authorized use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
11.2 Each party shall ensure that its employees comply with its obligations under this section 1 1.
11.3 This section 11 shall survive termination or cancellation of this Agreement.
11.4 This Agreement does not transfer to either party title to any intellectual property contained in any Proprietary Information of the other party
12.1 Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by Bridgenet.
13.1 The parties agree that in the event of a breach of this Agreement by Customer which causes
Bridgenet to suffer damages of any nature whatsoever, Bridgenet shall not be required to attach any of Customer’s hardware in execution, and shall be entitled to retain a lien over such hardware in reduction of any debt due by Customer to Bridgenet.
14.1 Bridgenet shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of Bridgenet, provided that Bridgenet makes all reasonable efforts to perform.
14.2 It is expressly recorded that for purposes of this clause the following shall be considered
circumstances beyond the control of Bridgenet and the force majeure provisions shall apply:
14.2.1 a ECNS provider fault that affects the Service/s; and/or
14.2.2 the non-performance, inability to perform or delay in performance by the ECNS provider relating to the provisioning of equipment, services and/or facilities to Bridgenet that affects the Service/s; and/or
14.2.3 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, s torm or fire.
15.1 This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.
16.1 For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and the serving of any process, Customer chooses its domicilium citandi et executandi (“domicilium”) at the physical address appearing on the application form to which
these Standard Terms and Conditions are attached. Bridgenet chooses its domicilium citandi et
executandi (“domicilium”) at 6 Qou Vadis Street, Valencia Park, Nelspruit, South Africa. Either
party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice
to the other within ten (10) days of the said change. Any notice which either par ty may give to the other shall be posted by prepaid registered post or hand delivered to the other party’s domicilium and shall be presumed, unless the contrary is proved by the party to whom it is addressed, to have been received by that party on the tenth (10th) day after the date of posting or on the day of delivery as the case may be.
17.1 No variation, amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorized representative from both Bridgenet and Customer.
17.2 The parties acknowledge having read and understood this Agreement and are not entering into this Agreement on the basis of any representations not expressly set forth in it.
17.3 Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between Customer and Bridgenet or not.
17.4 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms o f this Agreement, shall operate as an estoppel against either party hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
17.5 In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
17.6 Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or
unenforceable, such terms and conditions will be severable from the remaining terms and
conditions which will continue to be valid and enforceable.
17.7 In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive. In particular,
termination or cancellation of this Agreement shall not affect any rights or duties arising under it with respect to Proprietary Information as set out in Clause 10 above.
17.8 The terms and conditions appearing in the Schedule(s) hereto, are hereby incorporated into the Agreement. In the event of any conflict between the Standard Terms and Conditions of this
Agreement and those appearing in any Schedule/s hereto, these Standard Terms and Conditions
shall prevail. In respect of any conflict in respect of pricing in the Agreement or the Schedules
hereto, the costs set out in the Service Schedule shall prevail.
17.9 These terms and conditions, together with the Schedule(s), Annexures and attachments hereto, constitute the whole of the agreement between Bridgenet and Customer relating to the subject matter hereof, notwithstanding anything in Customer’s inquiry, specification, acceptance, order or other documentation or discussion to the contrary.
18.1 Bridgenet internet uncapped accounts are designed for either home or business use, and customers need to select the appropriate package designed for their access port speed and type of usage application (for example, for business or home use). Bridgenet reserves the right to apply restrictions on an uncapped account if a customer’s behaviour is determined to be affecting the user experience of other customers on Bridgenet’s network. Such restrictions may include but are not limited to throttling a customer’s throughput speeds to an appropriate proportion of the actual port speed and /or shaping a customer’s bandwidth to limit the use of bandwidth intensive protocols and applications. Examples of customer behaviour which may compromise Bridgenet’s network performance include, for example, causing network congestion, including running excessive concurrent internet sessions or accessing excessive bandwidth intensive protocols such as peer-to-peer. In the event of such behaviours, Bridgenet reserves the right to restrict or terminate the account of a customer who’s compromising the network performance. Customers who are restricted by Bridgenet in the aforementioned manner in a calendar month will be returned to full service profile at the beginning of the next month
19.1 In general, if you use your Bridgenet’s Internet account in a manner which: violates rules,
regulations and policies applicable to any network, server, computer database, website or Internet Service Provider (“ISP”) that you access through your internet account; violates any law, regulation, treaty or tariff, is defamatory, fraudulent, indecent, offensive, deceptive; or threatens, harasses, abuses or intimidates others; damages the name or reputation of Bridgenet, its holding company, affiliates and subsidiaries; interferes with other customers’ use and enjoyment of the services provided by Bridgenet; or breaches the security on any computer network; or to access an account which does not belong to you; it will be regarded as a breach of this FUP.
19.2 In the event of breaches of this FUP, Bridgenet will, where circumstances allow, provide notice of the breach to the relevant user with a request to remedy same immediately, failing which the relevant customer’s account may be terminated. However, where the circumstances warrant it, Bridgenet may terminate a customer’s account without notice. In addition to the above, users who violate systems or network security may incur criminal or civil liability. Bridgenet will cooperate fully with investigations of violations of Systems or network security, including co -operating with law Enforcement authorities in the investigation of suspected criminal violations. Bridgene t’s failure to enforce this policy, for whatever reason, shall not be construed as a waiver of Bridgenet’s right to do so at any time. Bridgenet reserves the right to amend the FUP from time to time