Last updated: 7 January 2011 (version 1.1)

IMPORTANT:
When you subscribe to the BushGuru service, BushGuru will issue you with a user name and password. By using the user name and password to access the Service(s) and/or by using the Service(s) in any way, you will be signifying your acceptance of these terms and conditions of use, which will form a binding agreement between you and BushGuru, which terms and conditions you are deemed to have familiarised yourself with and to have irrevocably accepted.

If you do not agree to all of the terms of this agreement, including payment terms, please cancel your registration. BushGuru is not willing to enter into this agreement if you are not willing to accept these terms and conditions.

1 Interpretation

1.1 "This Agreement" means these terms and conditions of use and all other terms and conditions which the ISP may, from time to time, impose in respect of the Service, as amended and updated from time to time.
1.2 "The User" means the party who has purchased the Service and/or any person using the Service.
1.3 "The ISP" means BushGuru CC (CK 2009/195498/23).
1.4 "The effective date" means the date on which the ISP activates the User's subscription to the Service.
1.6 "The Service" means the Internet service described hereunder in clause 4.2 provided by the ISP to the User in terms of this Agreement.
1.7 This Agreement will be governed by the laws of the Republic of South Africa.

2 Recordal

2.1 The ISP hereby sells the Service to the User on a subscription basis on the terms and conditions set out in this Agreement.
2.2 When the User subscribes for the Service, the ISP will issue a user name and password to the User. By using the user name and password to access the Service and/or by using the Service, the User will be signifying his/her acceptance of these terms and conditions of use, which will form a binding agreement between the User and the ISP, which terms and conditions the User is deemed to have familiarised himself/herself with and to have irrevocably accepted.
2.3 The User warrants that as at the effective date, all the details furnished by the User to the ISP are true and correct and that he/she will notify the ISP forthwith in the event of any change to such details.

3 Service availability

3.1 All reasonable endeavours will be made by the ISP, its suppliers and service providers to make and keep the Service available to subscribers at all times.
3.2 Notwithstanding the aforegoing, the User agrees that the ISP, its suppliers and service providers shall not be liable in respect of any loss or damage caused by or arising from the non-availability of, any interruption in or the use of the Service for any reason whatever and howsoever arising.
3.3 This exclusion of liability of the ISP, its suppliers and service providers for loss or damage will include, but is not limited to:
3.3.1 Loss caused by negligent acts of the ISP, it's suppliers and service providers or their employees;
3.3.2 Any direct, indirect, consequential, incidental or specific loss or damage resulting from interruption of the Service, the User's business, loss of information, loss of any form of data or any other cause of any nature, whether foreseen or not.
3.4 The ISP, its suppliers and service providers may suspend its obligations in terms of this agreement temporarily in order to service, repair, maintain, upgrade, modify, alter, replace or improve any of the ISP's, its suppliers' or service providers' services.
3.5 All reasonable endeavours will be made by the ISP, its suppliers and service providers to notify the User of any maintenance and/or repairs which may result in the non-availability of the Service, but no warranty or other contractual undertaking is given that such notice will be given. The User shall not be entitled to any setoff, discount, refund or other credit in respect of any such suspension or interruption of the Service. Additionally the User shall not be entitled to any setoff, discount, refund or other credit in respect of any suspension, which is beyond the control of the ISP or its suppliers and service providers.

4 Conditions of use for Internet access service

4.1 To ensure the security and reliable operation of its services, the ISP, its suppliers and service providers reserve the right to take any action the ISP, its suppliers or service providers may find necessary to preserve the ongoing security and reliability of the Service.
4.2 With effect from the effective date the ISP, its suppliers and service providers grant to the User the use of its Service to inter-alia gain access to and facilitate use of the Internet via the ISP’s connection on the terms and conditions set out in this agreement. By making use of the Service in any manner whatsoever the User acknowledges and agrees to the following:
4.2.1 The username and password provided by the ISP, its suppliers or service providers will be used for the User's personal use only. The User undertakes to maintain the confidentiality of such username and password and the User is not to give or make available in any way his/her username and/or password to any other person for such person's use, which shall be deemed to be unauthorised use.
4.2.2 The User shall not, at any time, permit and/or initiate a simultaneous network log-in and will not attempt to bypass the ISP's, its suppliers' or service providers' user authentication processes or engage in attempts to access the ISP's, its suppliers' or service providers' networks where not expressly authorised to do so, which actions shall be deemed to be unauthorised use of the Service.
4.2.3 Should any unauthorised use take place, the User shall, in conjunction with any other rights the ISP, its suppliers or service providers may have in terms of this agreement, pay immediately, on demand made by the ISP, its suppliers or service providers, any and all costs, including but not limited to additional service fees, incurred in such unauthorised use.
4.2.4 In the event that the User's password is compromised, the User shall immediately notify the ISP, its suppliers or service providers and change his/her password.
4.2.5 The User acknowledges that he/she is prohibited from utilising the Service to compromise the security or tamper with system resources or account(s) on computer(s) at the ISP, its suppliers or service providers, or at any other site.
4.2.6 The User agrees to conform to generally acceptable Internet etiquette and to abide by the ISP’s, its suppliers' and service providers' operating policies and Acceptable Use Policy (AUP), which may be amended from time to time at the sole discretion of the ISP, its suppliers or service providers, and is available to the User on demand, and the User hereby indemnifies and holds harmless the ISP, its suppliers or service providers from liability in respect of any loss or damage of whatever nature caused as a result of any violations of such policy.
4.2.7 The User undertakes to abide by all laws applicable to the intellectual property rights (including but not limited to: title, copyright, trademarks, and patents) of any and all data and/or information retrieved from the Service including those expressly specified or impliedly specified by the ISP, its suppliers or service providers or by any of the local or foreign service providers or any laws governing the provision of the Service.
4.2.8 It is specifically recorded that the User is expressly not authorised to tamper with the Service, servers or networks provided by the ISP, its suppliers or service providers in any manner whatsoever, nor to utilise the Service in any manner which may compromise the security of the Service, servers or networks provided by the ISP, its suppliers or service providers. To ensure the security and reliable operation of the Service, servers or networks provided by the ISP, its suppliers or service providers, the ISP, its suppliers or service providers hereby reserve the right to take whatever action the ISP, its suppliers or service providers may find necessary to preserve the security and reliability of the Service, servers or networks provided by the ISP, its suppliers or service providers.

5 Payment

5.1 The User agrees to pay the Service setup and subscription fees, which may include (without being limited to) fees for other services the User may subscribe to from time to time ("additional services").
5.2 The User shall be billed monthly in advance for the Service and/or additional services for the period commencing on the first day of the month to the last day of the same month.
5.3 Should there be a setup fee for the Service and/or additional services, as the case may be, the User shall be billed this setup charge for the Service and/or additional services, as the case may be.
5.4 The User agrees to pay to the ISP such charges as are levied by the ISP from time to time as follows:
5.4.1 All amounts payable in terms of this agreement shall be paid by way of a direct debit order (drawn against a current banking account nominated by the User in favour of the ISP) or in such other manner as the ISP may from time to time determine and shall be free of exchange and paid in full without deduction, discount, refund, set-off or any other credit in respect of any suspension or interruption of or delay in the Service, or where in any month the client has utilised less than any minimum bandwidth specified.
5.4.2 The User hereby expressly authorises the ISP to debit its current banking account for all amounts due to the ISP in terms of this agreement, which amount is non-refundable.
5.3.3 Payment of charges may not be withheld by the User for any reason whatsoever.
5.5 Should any payment not be made on due date, the ISP shall be entitled, without prejudice to any other rights it may have, to:
5.5.1 Charge interest on such arrear payment as from due date to date of actual payment thereof at a rate equal to the annual prime rate charged by First National Bank on overdrawn accounts from time to time, plus 2% (two per cent).
5.5.2 Suspend performance of the ISP's, its suppliers' or service providers' obligations under this agreement pending full payment by the User.
5.5.3 Pay a reconnection fee of not less than R150.00.
5.5.4 Take all such further steps as may be necessary to recover the outstanding amount from the User, in which event the User agrees to pay all costs associated with such recovery on an attorney and own client basis. Additionally the ISP reserves the right to levy a charge for handling fees at an amount determined by the ISP for monies due in the event of a User's payment being returned or rejected by the User's bankers without notice, or to suspend the User's access to and use of the Service until such time as the outstanding amount has been paid in full.
5.5.5 Terminate this agreement with immediate effect.
5.5.6 Record the existence of the User's account with a Credit Bureau.
5.5.7 Record and transmit details of how the User has performed to a Credit Bureau, and how the account is conducted by the User in meeting their obligations on the account.
5.5.8 The User confirms that all statements made in the completion of their account signup process are true and correct. The ISP, its suppliers and service providers reserve the right to request written proof thereof.
5.6 The setup charges for the Service and/or any additional services, as the case may be, is a charge for initiating the Service and/or additional services at the users request as the case may be, and the User shall be liable for the setup charge irrespective of the use made of the Service and/or additional services, as the case may be.
5.7 The monthly charges for the Service and/or any additional services, as the case may be, is a charge for permitting the User continued access to the Service and/or additional services, as the case may be, and the User shall be liable for each and every monthly charge irrespective of the use made of the Service and/or additional services, as the case may be.
5.8 Invoices shall only be issued by the ISP to the User on request.
5.9 In the instances where this Agreement, in respect of any products applied for, specifies a minimum subscription period ("minimum period") longer than one month's duration and the User cancels or purports to cancel this agreement in respect of such service, prior to expiration of such minimum period, the remainder of all monthly payments payable during the subscription period shall immediately become due and payable to the ISP.
5.10 The ISP reserves the right, in its sole discretion, to increase or decrease the Service subscription fees, and undertakes to give the User at least 30 (thirty) days notice of any such increase or decrease. Should the amended fee be unacceptable to the User, the User may terminate this agreement in accordance clause 8 below, failing which the amended fee shall take effect on the date indicated in the written notice.
5.11 The provision and costs of software and/or web site development, including HTML coding, design, development and maintenance, and the support thereof by the ISP, its suppliers or service providers, are specifically not included as part of the Service as set out in this agreement unless otherwise specified.
5.12 The User certifies that he/she is above the age of 18 years, has full contractual capacity and is duly authorised to contract on their behalf.

6 Exclusion of liability

6.1 Except as otherwise expressly provided herein to the contrary, the ISP, its suppliers or service providers shall not be liable to the User or any third party for any loss or damage of whatsoever nature and/or howsoever arising from the use of the Service and/or this agreement (including consequential or incidental loss or damage such as, without limitation, loss to property or of profit, business, goodwill, revenue or anticipated savings), or through the User's failure to comply with any provision of this agreement or with any other requirements which the ISP, its suppliers or service providers may impose from time to time, or through any unavailability or interruption in the Service as described in 3 above.
6.2 Without derogating from the generality of clause 6.1, the ISP, its suppliers or service providers shall not be liable for any damage or loss arising from the loss of or damage to any of the User's hardware, software, applications or for unauthorised actions taken on the Service, servers or networks provided by the ISP, its suppliers or service providers and/or any third parties.
6.3 The User hereby indemnifies the ISP, its suppliers or service providers and holds the ISP, its suppliers or service providers harmless from any claim by any party arising directly or indirectly out of access to or use of the Service or information obtained through the use of it, or in respect of any matter for which liability the ISP, its suppliers or service providers is excluded in terms of clause 6.1 above.

7 Announcements

7.1 The User agrees that the ISP, its suppliers and service providers may from time to time send the User various communications by email, SMS or other methods, regarding (without being limited to) special offers or discounts which the ISP, it's suppliers and service providers may negotiate for its users, operational changes that may affect the Service and/or additional services and/or new services launched by the ISP, its suppliers and service providers from time to time.

8 Breach

8.1 Should the User be in breach of any provision of this agreement, then the ISP, its suppliers or service providers shall be entitled, without prejudice to any other rights they may have and without notice to the User, to forthwith:
8.1.1 Claim immediate payment of all outstanding amounts payable in terms of this agreement.
8.1.2 Suspend the User's use of and access to the Service.
8.1.3 Terminate this Agreement, retain all amounts already paid by the User and recover all costs incurred, if any, by the ISP, its suppliers or service providers, including (without being limited to) legal costs on an attorney and own client basis.

9 Cession

9.1 The ISP shall be entitled to delegate, cede and/or assign its rights and obligations in terms of this agreement to any third party, without notice to the User.
9.2 The User shall not be entitled to cede or assign any of its rights or obligations in terms of this agreement without the prior written consent of the ISP, which consent shall not be unreasonably withheld.

10 Jurisdiction

10.1 The User hereby irrevocably consents to the jurisdiction of the Magistrates' Court in the terms of Section 28 of the Magistrates' Courts Act of 1994, provided that the ISP shall, should it so elect, be entitled to institute proceedings in the High Court of South Africa and the User further agrees that costs shall be calculated in accordance with the tariff of such court.

11 Amendment

11.1 The ISP reserves the right to amend this Agreement from time to time without notice to the User.
11.2 Any new version of the Agreement will be made available on the ISP's web site. It is the User's express obligation to regularly visit the ISP's web site to ascertain whether any amendments have been made to this Agreement.
11.3 The User shall have no authority to amend, modify or vary the terms and conditions of this Agreement or any other terms and conditions stipulated by the ISP, its suppliers or service providers for the provision of the Service.

12 Notices and domicilium

12.1.1 The Parties choose as domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this Agreement at:
12.1.2 The ISP: the physical address as published on the ISP's website.
12.1.3 The User: the physical address provided by the User when subscribing for the Service.
12.2 The User agrees that any notices sent to the User in terms of this Agreement may be sent via email.

13 Whole Agreement

13.1 This Agreement constitutes the whole of the agreement between the parties hereto relating to the matters dealt with in this Agreement and save to the extent otherwise provided herein no representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the parties.
13.2 No variation, addition, deletion, or cancellation will be of any force or effect unless reduced to writing and signed by the parties hereto or their duly authorised representatives.

14 Severability

14.1 In the event of any one or more of the provisions of this Agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this Agreement, and the Agreement shall be carried out as nearly as possible in accordance with its original terms and intent.

15 Covenant of good faith

15.1 The User warrants that as at the effective date, all the details furnished by the User to the ISP are true and correct and that the User will notify the ISP timeously in the event of any change to such details.
15.2 Each party agrees that it shall at all times act in good faith, in its respective dealings with the other parties under or in connection with this Agreement.

16 Indulgences

16.1 No time extension or other indulgences which the ISP, its suppliers or service providers may grant to the User shall constitute a waiver of any of the rights of the ISP, its suppliers or service providers who shall not be precluded from exercising any past or future rights against the User.

17 Duration

17.1 This Agreement will commence on the effective date and will endure for an indefinite period, subject to the right of either party to terminate this agreement at any time by means of 1 (one) calendar month prior written notice to such effect to the other party.
17.2 Upon termination of this Agreement, any outstanding amounts remain payable and have to be settled within thirty (30) days of termination, subject to the conditions of 5 above.