Items in these Terms and Conditions that are of importance or that carry a level of risk for you are in bold. Please pay special attention to these clauses and make sure you understand them. If you don’t understand something please get us to explain it to you.
1.1 “Registration Date” means the date on which you register and thereby accept the Agreement, by way of electronic medium, for example by clicking “I agree” on a web page or via your mobile phone;
1.2 “Activation Date” means the date on which BILLDOZER will give you access to and/or enable you to use the Service;
1.3 “Agreement” means the agreement concluded between you and BILLDOZER which agreement will be exclusively governed by these general terms and conditions;
1.4 “Business Day” means Monday to Friday, but excludes Saturdays and a day which is an official public holiday in the Republic of South Africa;
1.5 “Business Hours” means the hours between 09h00 and 17h00 on a Business Day;
1.6 “CPA” means the Consumer Protection Act, 2008;
1.7 “ECT Act” means the Electronic Communications and Transactions Act, 2002;
1.8 “BILLDOZER”, “we”, “us” and “our” means Billdozer (Pty) Ltd;
1.9 “BILLDOZER Marks” means any trademarks, logos, brand names, trade names domain names or other names or marks of BILLDOZER whether registered or not;
1.10 “Intellectual Property Rights” means the copyright in any work in terms of the Copyright Act, No. 98 of 1978, and includes without limitation the right to reproduce that work, the rights in respect of a trade mark conferred by the Trade Marks Act, No. 194 of 1993, the rights in respect of a design conferred by the Designs Act, No. 195 of 1993, and the rights in respect of a patent conferred by the Patents Act, No. 57 of 1978 including any applications for the aforegoing and any names, licenses, know how, trade secrets and data associated with the aforegoing;
1.11 “Juristic Person” means a company or close corporation and includes a body corporate, partnership, association or trust;
1.12 “Legal Notices Website” means www.billdozer.com;
1.13 “NCA” means the National Credit Act of 2005;
1.14 “Service” means the BILLDOZER services selected by you;
1.15 “Subscriber”, “you” or “Customer” means a user of any of our products or services;
1.16 “Third Party Service Provider” means a third party who provides services to you via the Website;
1.17 “Uncontrollable Event” means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of BILLDOZER including the termination or suspension of a service or product provided by a third party, that may result in a delay or a failure to provide any Service; and
1.18 “VAT” means Value Added Tax as provided for in the Value Added Tax Act, 1991;
1.19 “Website” means www.billdozer.com.
2 Commencement, Duration, Termination and Cooling-off
2.1 The Agreement will commence on the Acceptance Date and endure indefinitely until it is cancelled as provided for in this clause 2.
2.2 BILLDOZER may cancel the Agreement on the expiry of the reasonable notice period (10 days) given to you to remedy a material breach and you have failed to remedy that breach within such reasonable period, or otherwise as provided for in the terms and conditions.
2.3 Notwithstanding the termination of the Agreement, in the event that you continue to use the products or services despite the termination of the Agreement, you will remain liable for and promptly pay on demand all amounts that would have been due to BILLDOZER as a result of the use of or access to the Service and this Agreement shall be deemed to continue to apply until such time as all amounts due to BILLDOZER have been paid in full, and we will be entitled to terminate the agreement at any time.
2.4 If the Agreement results from any direct approach to you by BILLDOZER or is an electronic transaction as contemplated in the ECT Act, you will be entitled to cancel the Agreement on written notice to BILLDOZER without reason or penalty within 5 (five) Business Days of –
2.4.1 in the case of services only being provided in terms of the Agreement – the Acceptance Date; and
2.4.2 in the case where goods are provided and constitute the subject of the Agreement, whether in conjunction with services or on its own – the date of delivery of such goods.
2.5 For purposes of clause 2.4.2, goods include any literature, educational Service material, music, photograph, motion picture, game, information, data software, code or other intangible product or any license to use such intangible product.
3 ECT Act
The consumer protection provisions of the ECT Act, apply to transactions and communications that are executed electronically by a natural person. It also does not apply to paper based transactions, e.g. where you apply for a service or product by completing an agreement in writing.
4 Conditions of access
4.1 BILLDOZER will make the service available to you on the Activation Date.
4.2 If you are using the Service to facilitate bank account or credit card transactions, you must hold either a SagePay (Pty) Ltd (“SagePay”) merchant account (a “SagePay Account”) or a Mercantile Bank Ltd (“Mercantile”) merchant account (“Mercantile Account”). Your eligibility for the Service requires that your SagePay Account or Mercantile Account (as the case may be) remains in good standing. You hereby authorize us to obtain credit reports or other background inquiries from either SagePay or Mercantile from time to time.
4.3 We will send information to the SagePay or Mercantile payment gateway service (“SagePay Service” or “Mercantile Service”)) on your behalf. However we accept no liability for any losses related to downtime or system outage of the SagePay Service or Mercantile Service. BILLDOZER is not a payment service and will not be held responsible for any amounts related to any credit card, bank account or online payment transaction including but not limited to, losses relating to the fraudulent or deceptive actions of any user of the Services. You will use best efforts to promptly notify us of any fraudulent actions known to you that may affect the Service.
4.4 BILLDOZER will, where relevant, issue a user name and password to you prior to the Activation Date in order to enable you to gain access to and/or use a service. In such instance, you will not be able to access and/or use a service without a user name and password.
4.5 You agree that:
4.5.1 you will use your user name and password for your own personal use only;
4.5.2 you will not disclose your user name and password to any other person for any reason whatsoever and that you will maintain the confidentiality thereof;
4.5.3 you will immediately notify BILLDOZER if your password is compromised and change your password;
4.5.4 you, as the holder of the user name and password, acknowledge you are solely responsible for all payments in respect of a service charged to your BILLDOZER account, irrespective of whether the service has been utilized or is being utilized by you or not and accordingly the entire amount outstanding on your BILLDOZER account will be deemed to have arisen from (or relate to) your access to and/or use of a service;
4.5.5 you will not, at any time, permit and/or initiate a simultaneous network log-in; and
4.5.6 you will not attempt to circumvent BILLDOZER’s user authentication processes or engage in attempts to access BILLDOZER’s network where not expressly authorised to do so.
4.5.7 Your use of the Services may be subject to a credit referencing or risk assessment process. This means that BILLDOZER may request and receive your Confidential Information, Consumer Credit Information and Prescribed Information (as defined in the NCA) (“Assessment Information”) from registered credit bureaus in order to perform a financial means test to determine whether you will be in a position to meet your obligations under this Agreement.
4.5.8 BILLDOZER is entitled to perform this financial means test on a regular basis.
4.5.9 In this regard you consent to BILLDOZER requesting, receiving and reporting your Assessment Information from and to registered credit bureaus in accordance with the provisions and for the purposes of the NCA; and the sharing of such Information by registered credit bureaus and such other persons as contemplated in the NCA, for the prescribed purposes of the NCA.
4.5.10 You will not be provided with Services under this Agreement and it may be terminated upon receipt of a negative credit reference.
5 Service Delivery, Service Availability
5.1 BILLDOZER will use reasonable endeavors to make its services available to its Subscribers, and to maintain the availability thereof for use by its subscribers. However, we provide the services “as is” and “as available” and do not warrant or guarantee that the services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements subject always to the provisions of the CPA where applicable.
5.2 BILLDOZER will use its best endeavors to notify you 10 (ten) hours in advance of any maintenance and repairs which may result in the unavailability of a service, but can not always guarantee this.
6 Communication, Complaints Handling and Dispute Resolution
6.2 Complaints must be submitted to BILLDOZER and will be dealt with by BILLDOZER in accordance with the provisions of this clause 6.
6.3 Any payment default by you arising from, or in connection with, any service or product rendered or provided by BILLDOZER, will be excluded from the provisions of this clause, and BILLDOZER will be entitled to proceed to institute legal action against you.
6.4 Without prejudice to your rights in law, you are required, to first approach us with any complaint or dispute and afford us an opportunity to resolve a compliant before you approach any other relevant authority, court or other dispute resolution body or refer the matter to Arbitration as contemplated in clause 6.7 below.
6.5 Please direct all complaints to firstname.lastname@example.org. Your complaint should include the following:
6.5.1 your name, surname, e-mail address and name of the affected entity;
6.5.2 the date on which the complaint arose; and
6.5.3 a brief description of what gave rise to the complaint.
6.6 You may approach any other relevant authority, court or dispute resolution body or refer the matter to Arbitration as set out in clause 6.7 below, for resolution of the dispute, should you not be satisfied with the proposed resolution of the dispute by BILLDOZER.
6.7 Any dispute between the parties may be referred to arbitration and finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa. Such arbitration shall be held in Cape Town, and conducted in the English language before one arbitrator appointed in accordance with the said rules. Any award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable in, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction. A dispute shall be deemed to have arisen when either party notifies the other party in writing to that effect.
6.8 The arbitrator shall have the power to give default judgement if any party fails to make submissions on due date and/or fails to appear at the arbitration.
6.9 The provisions set out above shall not prevent either party from approaching any court of competent jurisdiction to obtain interim or other relief in cases of urgency.
7.1 Billing will commence on the Activation Date.
7.2 You agree to pay all amounts due under this Agreement in consideration for the Services.
7.3 To the fullest extent permitted by law, all amounts due and payable in terms hereof shall be paid free of exchange and without deduction or set-off, by way of deduction from your authorised bank account or credit card, monthly in arrears by way of a direct debit order in favor of BILLDOZER (drawn against a banking account capable of having a debit order against it, nominated by you), or in such other manner as BILLDOZER may from time to time determine.
You agree that:
7.3.1 by furnishing your bank details to us, you instruct and authorise BILLDOZER to draw all amounts payable in terms of this Agreement from the account specified (or any other bank or branch to which it may be transferred);
7.3.2 that the debit order will commence on the Activation Date and continue until termination of this Agreement and the service or product specific agreement under which a service is rendered or a product provided and the payment in full of all outstanding amounts due and payable to BILLDOZER under this Agreement;
7.3.3 you will sign all such forms and do all such things as may be necessary to give effect to the debit order as contemplated in this clause 7.3.
7.4 Should you fail to pay any amount on the due date for payment then BILLDOZER may, without prejudice to any of its other rights and remedies:
7.4.1 take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation the use of debt collection mechanisms;
7.4.2 suspend your access to the service or the use of any product without notice to you until such time as the outstanding amount has been paid in full; or
7.4.3 subject to clause 2, terminate this agreement with immediate effect.
7.5 To the extent that BILLDOZER incurs any additional expenditure relating to the tracing and/or collection of unpaid amounts, those costs shall be for your account to the extent permitted by law.
8.1 Any software and accompanying documentation we provide to you remains our property or that of our licensors. You will take all reasonable steps to protect such software or documentation from theft, loss or damage. You will be obliged to review and agree to the applicable end user license agreement before installing or using the software or documentation. Unless otherwise provided in the applicable end user license agreement, all end user license agreements will terminate upon termination of the Agreement.
9 Security and Privacy
9.1 BILLDOZER will be entitled to take whatever action BILLDOZER may deem necessary and reasonable to preserve the security and reliability of its network.
9.2 You may not utilize any service in any manner which may compromise the security of BILLDOZER’s network, or any other network connected to BILLDOZER’s network, or tamper with a service or such a network in any manner whatsoever.
9.3 BILLDOZER takes reasonable steps to secure your payment information. BILLDOZER uses a payment system that is in BILLDOZER’s reasonably opinion, sufficiently secure with reference to accepted technological standards at the time of the electronic transaction and the type of the transaction concerned.
10 Intellectual Property Rights
10.1 You agree to comply with all laws applicable to any Intellectual Property Rights in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of our Services.
10.2 You are prohibited from using any BILLDOZER Marks without the prior written approval of BILLDOZER.
10.3 BILLDOZER will wholly and exclusively retain all existing Intellectual Property Rights and become the exclusive and unencumbered owner of all intellectual property right(s) employed in the provision of any of the Services.
11.1 Subject to any other provisions set out in these terms and conditions and without prejudice to any of these provisions, should you be in breach of any provision of this Agreement, then BILLDOZER shall be entitled, without prejudice to any other rights that it may have and to the extent required or permitted, as the case may be, by law, to forthwith:
11.1.1 afford you a reasonable opportunity to remedy the breach, taking into account the nature of the breach in question; or
11.1.2 suspend your access to a service;
11.1.3 cancel all agreements concluded between us; or
11.1.4 claim immediate performance and/or payment of all your obligations in terms hereof.
12.1 You hereby unconditionally and irrevocably indemnify BILLDOZER and agree to indemnify and hold BILLDOZER harmless against all loss, damages, claims, liability and/or costs, of whatsoever nature, howsoever and whensoever arising, suffered or incurred by BILLDOZER as a result of any claim instituted against BILLDOZER by a third party (other than you) as a result of (without limitation):
12.1.1 your use of our Services other than as allowed or prescribed in the Agreement;
12.1.2 any other cause whatsoever relating to the Agreement or the provision of Services to you where you have acted wrongfully or failed to act when you had a duty to so act.
13 No representations, warranties or guarantees and Limitation of liability
13.1 Save to the extent otherwise provided for in this Agreement or where you are entitled to rely on or receive, by operation of law, any representations, warranties or guarantees, we do not make or provide any express or implied representations, warranties or guarantees regarding the availability, accuracy, reliability, timeliness, quality or security of any Service.
13.2 Without limiting the generality of the provisions of clause 13.2, BILLDOZER shall not be liable for and you will have no claim of whatsoever nature against BILLDOZER as a result of –
13.2.1 the loss of or access to any usernames and passwords which you are required to safeguard and not allow unauthorized access on the understanding that we will be entitled to assume that you are the person so using or gaining access to any service or account where your username and password is used;
13.2.2 any unavailability of, or interruption in the service due to an Uncontrolled Event;
13.2.3 any damage, loss, cost or claim which you may suffer or incur arising from any suspension or termination of the service/s for any reason contemplated in the Agreement.
13.3 In addition to and without prejudice to any other limitations of liability provided for in the Agreement and to the fullest extent permitted by applicable law, BILLDOZER shall not be liable to you for any direct damages howsoever arising and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal or other competent dispute resolution body or authority finally determines, notwithstanding the exclusion contained in this clause, that BILLDOZER is liable to you for any damages, BILLDOZER’s liability to you for any damages howsoever arising shall be limited to the amounts paid by you under this Agreement in consideration for a service or product during the immediately preceding 12 (twelve) month period in respect of the service or product which gave rise to the liability in question.
14 Cession and Delegation
You may not sell, cede, assign, delegate or in any other way alienate or dispose of any or all of your rights and obligations under and in terms of this Agreement without the prior written approval of BILLDOZER. BILLDOZER shall be entitled to sell, cede, assign, delegate, alienate, dispose or transfer any or all of its rights and obligations under and in terms of this Agreement to any of its affiliates or to any third party without your consent and without notice to you provided that you are not unduly prejudiced as a result. “Affiliates” for this purpose includes BILLDOZER’s holding company, the holding company(ies) of BILLDOZER’s holding company (collectively “its holding companies”), its subsidiaries, subsidiaries of its holding companies and any other companies which are directly or indirectly controlled by BILLDOZER or are under common control with BILLDOZER.
You hereby consent to the jurisdiction of the Magistrate’s Court in the Republic of South Africa in respect of any proceedings that may be initiated by BILLDOZER arising out of this Agreement, provided that BILLDOZER shall be entitled, in its reasonable discretion, to institute such proceedings in the High Court of South Africa and, in such event, you consent to the jurisdiction of such court. The jurisdiction of the Small Claims Court is specifically excluded, as the parties agreed to follow the arbitration process set out in clause 6 above.
16 Amendment of this agreement
BILLDOZER reserves the right to amend this agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our web site on a regular basis in order to determine whether any amendments have been made.
17.1 The parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the parties. No variation or addition of this Agreement or the Application Form will be binding on any of the parties unless recorded in writing and signed by both parties.
17.2 BILLDOZER is in terms of section 43 of the ECT Act required to make its contact details, its domicilia citandi et executandi and certain other information available to its Subscribers who enter into electronic transactions with BILLDOZER. This information is available on our Legal Notices Website.
17.3 You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.
17.4 No indulgence, leniency or extension of time which BILLDOZER may grant or show to you shall in any way prejudice BILLDOZER or preclude BILLDOZER from exercising any of its rights in the future.
17.5 You warrant that as at the date of online application and registration, all the details furnished by you to BILLDOZER are true and correct and that you will notify BILLDOZER in the event of any change to such details.
17.6 All our terms and conditions can be accessed, stored, and reproduced electronically by you.
17.7 The physical address where BILLDOZER will receive legal service of documents/ domicilium citandi et executandi is the following: 11 Vondel Raod, Edgemead, 7441.