1. DEFINITIONS 'mbay.co.za' refers to the entity known as mbay.co.za, its assignees and/or agents as stipulated by it from time to time.
'Terms' shall refer to the Terms and Conditions set out herein.
'Customer' means any person, natural or juristic and includes but is not limited to Partnerships, Close Corporations and Companies.
'Product' refers to any saleable commodity of any nature whether physical or intellectual and includes any hardware, software and any services associated therewith.
'Web site' refers to Internet Web Site design in its widest possible terms and includes design, any maintenance thereof, registration, service provision, graphics, animation, scripts, databases and e-mails as well as programming associated therewith.
'Order' refers to the acceptance by mbay.co.za of any offer by the Customer.
'Domicilium Citandi et Executanti' mbay.co.za accepts domicilium at sales@mbay.co.za while the Customer shall be deemed to accept domicilium at the e-mail address supplied by it unless otherwise stated.
'Domain Name' is any Internet Domain Name of any nature.
'Price' means any amount agreed upon in terms of any quotation, order or contract of any nature concluded between the parties.
'CMS' means mbay.co.za's proprietary content management system.
2. APPLICATION These Terms shall apply to any sale, service, statements or any other communication made by mbay.co.za in brochures, price lists, adverts, quotations, on the internet or verbally. Any and all variations to these Terms shall only be valid if made by mbay.co.za in writing. The placing of any Order shall be regarded by the Parties as acceptance of these Terms. 3. ORDERS/CONTRACT Orders may be accepted in writing, by e-mail, by telephone, by fax or verbally. All orders are binding upon acceptance by mbay.co.za. 4. PRICE & PAYMENT TERMS Quotations are only valid if in writing and during the period stated. If unstated, the period is 30 days (10 days for 3rd Party Products). mbay.co.za reserves the right to change the nature and/or specifications of Products (incl. 3rd Party Products) at any time but mbay.co.za guarantees at least equivalent functionality and performance. Unless stated, all prices exclude VAT, delivery, insurance and installation. Exchange rates, duties, insurance, freight and purchase costs (incl. for components & services) may cause mbay.co.za to adjust prices. Payment will be made before supply or service or, if agreed beforehand, within 30 days of the invoice date. mbay.co.za may suspend deliveries or service until full payment is received. If payment is late, interest shall be charged at the then maximum prevailing rate applicable and the costs of recovery shall be payable by the Customer. Cheques may be accepted entirely at the discretion of mbay.co.za. 5. DELIVERY/TITLE/RISK Any delivery period given is approximate. Delivery at the discretion of mbay.co.za may be made in installments. Title to Product passes only on full payment and until then the Customer must insure and store the product separately and not modify, pledge or sell same. 6. ACCEPTANCE Upon receipt of the Product it shall be incumbent upon the Customer to inspect it within a period of 3 days. After this period, the Customer will have been deemed to have accepted the Product. If mbay.co.za agrees to the return of Product solely at its choosing, same must be in its original condition with packaging, a return note and proof of purchase; the return costs may also be payable by the Customer. 7. WARRANTY New products supplied by mbay.co.za (where applicable) are covered by original equipment manufacturer warranty or guarantee. mbay.co.za does not guarantee or offer warranty cover on any hardware unless otherwise stated. mbay.co.za offers no warranty, guarantee or support on software supplied or residing on PC systems supplied by mbay.co.za unless specifically covered by a mbay.co.za PC Software Support Contract. Second user and refurbished hardware is not covered under warranty, unless still under manufacturers original guarantee or warranty. mbay.co.za does not give a warranty or guarantee protection for: i. damage caused by incorrect installation, use, modifications or repair by the Customer or any unauthorised 3rd party; ii. damage caused by any person or other external force; iii. fitness for any particular purpose; iv. 3rd Party Products or Software specified by the Customer who duty it shall be to receive the warranty for these products directly from their manufacturer or licensor; v. any malfunction or reduction in speed or loss of functionality caused by installation of any 3rd Party Products or Software after original delivery or installation. vi. any instruction given by Customer and correctly performed by mbay.co.za. 8. SERVICES will be provided by mbay.co.za or Service Provider. Response times are estimates and may vary according to the remoteness or accessibility of Product location. Service may be provided via telephone or internet where appropriate. If agreed and stated in quotation, Service Offering may include advice, asset tagging, installation, integration, disposal, training and/or consultancy. Unless stated in original order or quotation, the following are excluded from Service: items excluded from Warranty, changes to configuration, relocation, preventative maintenance, consumables, CD's, DVD's, diskettes, or any other removable media, unnecessary work in mbay.co.za's assessment, electrical environment, transfer of data or Software, viruses. 3rd Party Products will be repaired according to manufacturer or licensor warranty. Parts not critical to Product function (eg: cases, camera housings, doors, hinges, cosmetic features, frames) may not be serviced within Service Offering time period. 9. CHARGEABLE SERVICES Unless covered by an mbay.co.za PC Software Support Contract, all call-outs or off site service provisions made by mbay.co.za are chargeable on an hourly basis, regardless of whether the fault or issue is remedied. Under certain circumstances, exploratory / troubleshooting action may create or expose further faults. Whilst mbay.co.za technicians will make every reasonable effort to remedy any additional faults created or exposed, mbay.co.za accept no liability for problems which arise in this eventuality (See point 10). 10. LIABILITY mbay.co.za does not accept liability for i. indirect or consequential loss, ii. loss of business profits, salary, revenue, savings, iii. damage remedied by mbay.co.za within reasonable time, iv. loss avoidable by the Customer due to unreasonable conduct, including failure to back up all data and following mbay.co.za's reasonable advice generally, v. all items excluded from the Warranty or by Force Majeure. mbay.co.za accept no liability for any loss of data, loss of earnings, damage or personal injury in any way, shape or form, directly or indirectly resulting from work carried out by mbay.co.za technicians, employees or 3rd party contractors either on site at the Customer's premises, off site at mbay.co.za offices or as a result of instructions given by telephone, letter, fax, email or other communication. 11. COPYRIGHT AND INTELLECTUAL PROPERTY 'IP' mbay.co.za retains all mbay.co.za-owned IP in Product. If the Customer has an mbay.co.za CMS installed on the web site, this remains sole property of mbay.co.za. The Customer must notify mbay.co.za immediately of any infringing or unauthorised use of Product or IP in it. mbay.co.za retain copyright and IP on all mbay.co.za branded or bespoke or modified software packages supplied for the Customer's purpose. Unauthorised copying, lending or installation at other premises or outside the mbay.co.za Software Usage Policy (where applicable) is strictly prohibited. 12. SOFTWARE Software not owned by mbay.co.za is supplied subject to licence and warranty of the Software licensor. mbay.co.za encloses the requisite Software licence for the Product where necessary; the Customer must comply with said licence. 13. EXPORT CONTROL The Customer acknowledges that Product may include technology and Software which is subject to RSA, US and EU export control laws and laws of the country where it is delivered or used: and agrees to abide by all these laws. Product may not be sold, leased or transferred to restricted end users or countries or for a user involved in weapons of mass destruction or genocide. The Customer acknowledges that RSA, US and EU restrictions may vary regularly depending on Product, therefore the Customer must refer to the current RSA, US and EU regulations. 14. FORCE MAJEURE mbay.co.za is not liable for delays in performance (incl. delivery or service) caused by circumstances beyond its reasonable control and will be entitled to a time extension for performance; examples include strikes, supplier / transport / production problems, exchange fluctuations, governmental or regulatory action and natural disasters. If such condition lasts for more than 2 months, this Agreement may be terminated by either party without compensation payable to the other. 15. CONFIDENTIALITY The Parties must treat all information received from the other marked 'confidential' or reasonably obvious to be confidential as it would treat its own confidential information. 16. TERMINATION mbay.co.za may terminate this Agreement with written notice if the Customer: i. fails to pay timeously and/or within 14 days of written notice for such payment, ii. breaches or mbay.co.za suspects any breach of export control laws. Either party may terminate if the other: iii. commits a material or persistent breach of this Agreement and fails to remedy same within 30 days of written notice from the other to effect such remedy; or iv. becomes insolvent or commits any act of insolvency as contemplated by Section 8 of the Insolvency Act (Act No 24 of 1936 as amended). 17. CUSTOMER'S OBLIGATIONS The Customer is responsible for: i. choice of Product and its suitability for purpose; ii. telephone & postal charges in contacting mbay.co.za, if any; iii. all 3rd party software licences, authorisations and associated conditions of use. The Customer must provide mbay.co.za with all reasonable information, co-operation, facilities and access so as to enable mbay.co.za to perform its duties, failing which mbay.co.za shall not be obliged to perform any service or assistance. The Customer is responsible for the removal of non-mbay.co.za supplied products during service, the back up and confidentiality of all data in Product and all of all legal and regulatory requirements. 18. DATA PROTECTION The Customer's data will be held and/or transferred in strict accordance with the applicable data protection guidelines. The Customer may instruct mbay.co.za not to use data for direct marketing purposes. 19. CANCELLATION Due to the bespoke nature of mbay.co.za systems, software and web sites, the order, once accepted by mbay.co.za is binding. Under certain pre-arranged circumstances, mbay.co.za may accept cancellation of a Hardware order if notice of intention to cancel is given within 7 days of order. The acceptance of any such cancellation will be solely at mbay.co.za's discretion, and may be subject to a 25% handling fee. Any statutory Consumer rights are unaffected by this Agreement. 20. JURISDICTION The Parties agree that the law regulating any aspect of these Terms shall be the law obtaining in the Republic of South Africa. The Parties furthermore agree to the Jurisdiction of the Magistrate's Court having appropriate jurisdiction. 21. EXTRA CONTRACTUAL SUPPORT In the course of supplying Customer Services and other technical and support services; it is likely that matters will be addressed with mbay.co.za which are not covered by these Terms or any Agreement arising therefrom and mbay.co.za may provide advice, suggestions, proposals, information, data, and the like where such provision is similarly made outside of such Terms or Agreement and ex gratia (such advice, suggestions, proposals, information, data and the like being called collectively 'Extra-Contractual Support'). The Extra-Contractual Support is provided on the basis that the Customer will exercise its own judgment and will rely on its own expertise with respect to it. mbay.co.za makes no representations or warranties, express or implied, of any kind whatsoever and there shall be excluded any warranties or conditions, either express or implied, statutory or otherwise with respect to the Extra-Contractual Support. Without prejudice to the generality of the foregoing, no implied warranties of quality, merchantability or fitness for a particular purpose are given, and no implied warranty arising by usage or trade, course of dealing, or course of performance is made by mbay.co.za nor shall any such implied warranty arise by this notice and/or mbay.co.za's and / or the Customer's conduct in relation to the Extra-Contractual Support or to each other, and in no event shall mbay.co.za be liable on any such warranty with respect to any part or all of the Extra-Contractual Support or any like service provided by mbay.co.za. In no event shall mbay.co.za be liable for any form of loss or damage of whatsoever kind (whether arising in contract, delict, by statute or otherwise), including, but without limiting the generality of the foregoing, direct, indirect, special, idiosyncratic or consequential damage or loss, loss of anticipated profits, loss of business opportunity, or loss of contracts by the Customer or any third party or claims or demands against the Customer by any third party for economic loss in connection with or arising out of the provision of Extra-Contractual Support. 22. DOMAIN NAMES Renewal of domain names is entirely the responisibilty of the Customer. mbay.co.za offer no guarantee that a domain name registered by or belonging to Customer or registered by or belonging to mbay.co.za will continue to be available. It is the responsibility of the Customer to check renewal dates of its domain name and ensure that it does not expire. 23. LOSS OF SERVICE Whilst mbay.co.za will make every effort to ensure that Customer receives reasonable access to mbay.co.za services, from time to time full service may be temporarily suspended due to upgrade or holiday period. Further, whilst mbay.co.za will make every effort to ensure continuation of email and hosting services, it accepts no liability (sec.10) for loss of email or web service arising from the loss of service of web servers or the expiry of DOMAIN NAMES (sec.22). 24. SERVICE SUSPENSION mbay.co.za reserves the right to suspend part or all service and hosting offered to the Customer if invoices are not paid strictly in terms of any agreement. Unless stated, full payment is due on presentation of invoice. 25. TERMINATION Should your web site be terminated for any reason, an administration fee of R250 will be due before the site is re-activated. Should you wish to move your site to another host, raw HTML files will be supplied to you for an additional transfer fee of R300 but no .php code will be supplied or disclosed to third party hosts (sec.11). 26. MISCELLANEOUS If any part of the Agreement is found to be invalid or unenforceable by a court, the rest is unaffected. mbay.co.za may subcontract its obligations to a competent 3rd Party. Otherwise, neither Party may assign or transfer any obligations or rights. All notices must be in writing (by hand, fax or courier) and delivered to the chosen domicilium.
