Terms and Conditions

In this Agreement:

• Agreement
  refers to these General Terms and Conditions, applicable Services Terms and Conditions, all PASSANTBYTE Policies, and other relevant forms.
• Confidential Information
  includes data related to PASSANTBYTE and any Group Company, covering various aspects such as strategic objectives, trade secrets, technical information, and more.
• CPA
  stands for the Consumer Protection Act No. 68 of 2008 of South Africa.
• Customer
  refers to the entity using PASSANTBYTE’s services.
• PASSANTBYTE
  refers to PASSANTBYTE (Pty) Ltd, with its registration number: 2023/171074/07, a private company incorporated under South African laws.
• Fees
  are the charges for PASSANTBYTE’s services.
• Good Industry Practice
  denotes the expected level of skill, diligence, and prudence from a service provider in compliance with contractual obligations and applicable laws.
• Malicious Code
  includes software designed for unauthorised access, disruption, or damage to computer systems.
• NCA
  refers to the National Credit Act, 34 of 2005 of South Africa.
• Personal Information
  encompasses details about an identifiable natural or juristic person.
• POPIA
  is the Protection of Personal Information Act, no 4 of 2013 of South Africa.
• RICA
  stands for the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 of South Africa.
• Service(s)
  includes all services provided by PASSANTBYTE as specified on PASSANTBYTE’s Website.

• Intellectual Property
  Refers to any non-publicly known know-how, inventions, designs, trademarks, copyrighted material, goodwill, processes, and similar intellectual property globally. “Copyright Material” denotes materials with copyright.

• Signature Date
  Indicates the date of signing this Agreement by the last signing party.

• Software
  Any computer program provided by PASSANTBYTE for service use and its modifications, enhancements, or upgrades.

• South African Law
  All laws and regulations in the Republic of South Africa, including codes of conduct.

• Supplier
  A provider of goods and/or services to PASSANTBYTE.

• VAT (Value-Added Tax)
  Defined by the Value-Added Tax Act 89 of 1991 of South Africa.

Clause headings are for reference only, and word gender, singular/plural, and natural persons/juristic entities apply as per context.

Unless otherwise specified, any reference to a statutory enactment in this document shall be understood to refer to the enactment as it existed at the date of signing, including any subsequent amendments or substitutions.

For the purposes of this document, a reference to a statutory enactment shall be deemed to include the enactment as originally signed and any subsequent amendments or replacements.

• Upon subscribing to or applying for PASSANTBYTE’s services, the Customer appoints PASSANTBYTE to provide the specified Service(s) throughout the Agreement’s duration. This appointment is accepted by PASSANTBYTE, contingent upon the terms outlined herein. Each service application or subscription establishes an independent contract, and PASSANTBYTE reserves the right to decline service initiation based on the Customer’s prior conduct.
• Should PASSANTBYTE deem it necessary, your service application may undergo credit referencing or risk assessment. By subscribing, you agree that PASSANTBYTE may access your confidential, credit, and prescribed information for financial means testing. A negative credit reference or risk assessment may prevent agreement effectiveness, subject to PASSANTBYTE’s discretion to waive this condition on a case-by-case basis.
• Relying on the nature of the provided Service, PASSANTBYTE may be obligated under applicable laws, such as RICA, to obtain specific information and documents from the Customer. Service provision may be withheld or suspended until the necessary information/documents are provided.
• In cases involving a juristic person, PASSANTBYTE may request one or more officers to stand surety for the Customer’s obligations. Failure to comply with this clause may result in service delays, and if unresolved within a reasonable period, PASSANTBYTE reserves the right to terminate the Agreement.
• While PASSANTBYTE cannot guarantee immediate provision upon application receipt, service availability is subject to technical feasibility confirmation. Applicants will be officially notified of service feasibility after application submission.

• This Agreement becomes effective on the date of Customer service registration. It continues on a month-to-month basis, with either party having the right to terminate by providing at least one calendar month’s notice, in accordance with service terms.
• PASSANTBYTE holds the right to terminate or suspend services without notice under certain circumstances, including serious breaches, non-payment of fees, provision of false information, or if the Customer’s use of services is deemed unlawful. Upon suspension or termination, the Customer may not withhold payment, seek reimbursement of fees paid in advance, or have any further rights against PASSANTBYTE.
• The suspension period’s duration is at PASSANTBYTE’s sole discretion, considering the circumstances leading to the suspension.

PASSANTBYTE provides a variety of services and may offer recommendations to customers based on the information provided. The delivery of services by PASSANTBYTE is reliant on customer-provided information, and no warranty is provided regarding the suitability of services beyond the requirements expressed by the customer. The customer is responsible for ensuring that the chosen services from PASSANTBYTE meet their requirements or desired outcomes. PASSANTBYTE is not liable for compensation, costs, or damages resulting from the incorrect selection of services or any resulting delays in rectifying such errors.

While PASSANTBYTE and its suppliers make every effort to maintain consistent service uptime (99.9% yearly and 99% monthly) and high service quality, given the nature of services, technology, infrastructure, and the number of suppliers involved, absolute assurance is not always feasible. Unless otherwise agreed in writing, all services are based on a best-effort premise, and no guarantees on throughput, latency, or uptime are provided. If PASSANTBYTE cannot meet the standard of service quality, its liability is limited to three months of the customer’s base hosting fee for the affected service.

To the extent that the provisions of the Consumer Protection Act (CPA) apply, if the customer alleges a defect in service quality, the only remedy available is to require PASSANTBYTE to remedy the defect in the quality of services performed.

PASSANTBYTE reserves the right to discontinue specific services if deemed necessary. In such cases, PASSANTBYTE will either provide the service for the remainder of the paid duration or refund the amount paid for that specific package.

PASSANTBYTE will implement measures aligned with Good Industry Practice to ensure the security of the PASSANTBYTE System and the physical security of PASSANTBYTE’s premises. However, no warranty is provided against security breaches.

If the customer discovers a security violation or believes a security violation is imminent, immediate notification to PASSANTBYTE must occur in a way that does not compromise security concerns further. Customers must refrain from actions that could prejudice the security of the PASSANTBYTE System and take reasonable measures to ensure:

• No unlawful access is gained to PASSANTBYTE’s premises, the PASSANTBYTE System, or the customer’s system.
• No malicious code is introduced into the PASSANTBYTE System.
• Customer data is safeguarded.

In the event of a security violation or anticipated breach, PASSANTBYTE may take necessary steps to maintain the proper functioning of the PASSANTBYTE System, including changing the customer’s access codes and passwords and preventing access to the PASSANTBYTE System.

While PASSANTBYTE takes reasonable measures for disaster recovery, there is no warranty that recovery will be successful or completed within any time limit. Customers must fully cooperate with PASSANTBYTE in any investigation related to a security violation.

If the customer provides any service to third parties utilizing the PASSANTBYTE System, the customer must contractually bind those third parties to equivalent security terms as outlined in this clause.

PASSANTBYTE prohibits customers from selling, reselling, or dealing with proprietary PASSANTBYTE services without explicit consent. Any consideration received by the customer while violating this prohibition shall be forfeited to PASSANTBYTE unless the customer is duly authorized to resell such services.

Customers are not allowed to grant access to services to any person, except their employees or other authorized parties.

The customer must use the service in compliance with South African laws, the terms and conditions of this agreement, and PASSANTBYTE’s policies published on the PASSANTBYTE website. PASSANTBYTE has no obligation to assist the customer in understanding applicable South African laws.

When a service comes with predefined resource allocations, such as bandwidth, traffic usage, data, memory, data storage, CPU, or data cap, during a specified period, the customer must not exceed these allocations. If exceeded, PASSANTBYTE may charge for the overage or deduct the excess amount from the following allocation.

In case of disputes, it is the customer’s duty to contact PASSANTBYTE through available communication channels, such as phone, online chat, or email, for dispute resolution.

Subscription Options:

• Monthly: Fees are due monthly in advance, payable by the 1st business day, with cancellation requiring one calendar month’s notice.
• Quarterly: Fees are due on or before the 1st business day of the period, with automatic renewals unless canceled with one calendar month’s notice.
• Bi-annually: Fees are due on or before the 1st business day of the period, with automatic renewals unless canceled with one calendar month’s notice.
• Annual: Fees are due on or before the 1st business day of the period, with automatic renewals unless canceled with one calendar month’s notice.

Usage Fees:

• Prepayment required.

Billing Process:

• Billing starts on the date service provision begins.
• Partial months are charged pro rata.
• Services are billed in advance, payable in advance.
• Invoices must be paid by debit order or credit card, with exceptions for bi-annual, tri-annual, or annual payments by electronic funds transfer by prior arrangement.

Consequences of Late or Non-Payment:

• Interest of 10% above the prime overdraft rate is charged for unpaid fees beyond the due date.
• Debit order returns incur a fee.
• Non-payment beyond fourteen days may result in a demand letter and listing on a credit bureau database.
• PASSANTBYTE may suspend services for non-payment, with no access provided during suspension, and no refunds for the suspended period.
• Reconnection fees apply for subsequent service reactivation after suspension.

Billing Disputes:

• Customers must raise billing disputes promptly to avoid service interruption.
• Billing complaints must be submitted in writing to billing(at)passantbyte.co.za, accompanied by relevant details and supporting documentation.
• PASSANTBYTE will reach a determination and communicate the decision within fourteen working days.
• Successful disputes may result in an account credit or refund at PASSANTBYTE’s discretion.

Amendment of Fees:

• PASSANTBYTE reserves the right to change prices with reasonable notice, not less than thirty days.

All Intellectual Property rights in PASSANTBYTE’s Software, Systems, procedures, and policies related to the Services under this Agreement belong to PASSANTBYTE. The same applies to intellectual property rights in Suppliers’ software, systems, procedures, and policies licensed to PASSANTBYTE. Customers have no right, title, or interest in this Intellectual Property and must not reverse engineer, decompile, modify, or tamper with the software systems, procedures, and policies owned by PASSANTBYTE or its Suppliers.

Customers must only use properly licensed third-party software with the Services, indemnifying PASSANTBYTE against losses, damages, liability, costs, and expenses resulting from third-party claims related to copyright infringement.

The Customer warrants not to use the Service(s) to produce, host, or present any content infringing on Intellectual Property rights. This includes recognizing, acknowledging, and using content in accordance with third-party Intellectual Property rights. The Customer also warrants having received all necessary permissions for using Intellectual Property related to third parties.

Specifications, descriptive matter, drawings, and other documents provided by PASSANTBYTE do not form part of this Agreement unless agreed in writing by both parties. Such documents remain PASSANTBYTE’s property.

Operators must treat and hold all Personal Information received and processed from the Responsible Party as confidential. Disclosure is only allowed by law or in the proper performance of duties with the knowledge or authorization of the Responsible Party.

Upon termination, cancellation, or expiry of this Agreement, the Operator must deliver or destroy all Confidential Information in its possession.

These obligations don’t apply to information that is lawfully in the public domain, subsequently becomes public by legal means, or is disclosed pursuant to legal requirements.

Customers consent to PASSANTBYTE processing Personal Information transmitted to PASSANTBYTE’s System consistent with the provided Service. Customers must comply with relevant statutory provisions on data privacy and warrant having obtained consent or lawful Processing for third-party Personal Information.

PASSANTBYTE will use reasonable endeavors to ensure the safekeeping of Personal Information uploaded to its servers. However, PASSANTBYTE doesn’t guarantee against data loss, and customers must retain their backups, indemnifying PASSANTBYTE from claims due to data loss.

PASSANTBYTE deletes all Personal Information upon termination, and customers are responsible for making local copies before termination. PASSANTBYTE doesn’t retain backups after Service termination.

PASSANTBYTE represents and warrants that:

• It has the capacity and authority to enter into and perform this Agreement and provide the Services to the Customer.
• It owns or has the right to use any intellectual property employed during or as part of the Service(s).
• The Services will be performed in compliance with South African Law, including the provisions of POPIA for lawful processing of Personal Information.
• The Services will be provided in accordance with the provisions of this Agreement.
• The Services will be performed professionally, utilizing suitably qualified personnel with sufficient knowledge, expertise, and competence.

Except as expressly set out in this Agreement, PASSANTBYTE makes no other representations or warranties of any nature regarding the Service(s), and all implied or residual warranties at common law are expressly excluded. PASSANTBYTE does not warrant that transmitted information:

• Will be preserved in its entirety.
• Will be delivered to all intended recipients.
• Will be suitable for any purpose.
• Will be free of inaccuracies, defects, bugs, viruses, or secure against intrusion by unauthorized third parties. PASSANTBYTE assumes no liability for these exclusions.

In addition to other Customer warranties in this Agreement, the Customer undertakes and represents that:

• It has the requisite power and authority to execute and deliver this Agreement and perform its obligations.
• The execution and delivery of this Agreement and the transactions contemplated will not conflict with or violate any contract to which the Customer is a party.

PASSANTBYTE shall not be liable for non-performance under this Agreement to the extent caused by events or conditions beyond its control. Circumstances beyond PASSANTBYTE’s control include but are not limited to:

• Supplier interruptions affecting the Service(s).
• Non-performance, inability, or delay by upstream providers related to equipment, services, or facilities provision to PASSANTBYTE.
• Acts or omissions of government authorities, laws, civil strife, riots, insurrection, sabotage, war, public enemy acts, illegal strikes, transportation interruptions, lockouts, flood, storm, fire, or other events classified as “acts of god.”
• Telecommunications infrastructure and communication line faults.
• Failure or unreasonable delay by the Customer to report faults/problems to PASSANTBYTE.
• Failure of any hardware, software program, application(s), or any third-party computer systems or services on which the Customer relies to use the Service(s).

PASSANTBYTE shall not be liable for any loss (including but not limited to loss of data, profits, and goodwill), liability, damages (whether direct, indirect, or consequential), or expense of whatsoever nature and howsoever arising where PASSANTBYTE’s negligence, failure, delay, or inability to perform any of the Service(s), any defect or failure in the Equipment, or due to the occurrence of the following events:

• The Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement, including non-payment of fees.
• Circumstances that constitute an event of force majeure as contemplated in clause 12 hereof.
• Compliance by PASSANTBYTE with any applicable national and international legislation and laws.
• Any alteration to the Software and Equipment by the Customer.
• Any defect and/or hazard in any third-party equipment required by the Customer to be used in the provision of the Services.

The Customer shall indemnify and hold PASSANTBYTE and any of its members, representatives, officers, or employees as well as any third parties whose networks are connected to the PASSANTBYTE System, harmless against all losses, damages, liability, costs, and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising out of the provisions of clauses 13.

In the event that PASSANTBYTE is nonetheless held liable, the quantum of PASSANTBYTE’s liability will not exceed the monthly or pro-rata fees due for the Service that occasioned the loss, in the preceding three (3) months, regardless of whether the claim arises out of negligence on the part of PASSANTBYTE or any other cause.

PASSANTBYTE and/or upstream suppliers may conduct maintenance, repair, and/or improvement work on its technical infrastructure. In such cases, PASSANTBYTE will provide reasonable notice to the Customer through its website. The Customer agrees that all liability on the part of PASSANTBYTE for any loss or damage (whether direct or consequential) thereby incurred is excluded.

Use of the Services indicates that the Customer indemnifies and holds harmless PASSANTBYTE in respect of any damages, loss, or costs or claims instituted against PASSANTBYTE arising from any application or subscription to or use of any Service or breach of the Agreement.

Nothing contained in this clause 13 will limit the Customer’s liability in respect of charges incurred for ongoing Services.

If the CPA is applicable to this Agreement, and any provision of this clause 13 is found by a court or tribunal with jurisdiction over PASSANTBYTE to be unfair, unreasonable, or unjust, then that provision will be severed, and the remainder of this clause 13 will have full force and effect.

In the case of ambiguity, this clause 13 will take precedence over any expression of the Parties’ intention, whether express or implied, that may be contained elsewhere in this Agreement.

In the event of any breach by the Customer of the terms and conditions outlined in this Agreement, excluding cases of non-payment of due and payable amounts, PASSANTBYTE reserves the right to enforce the following actions without prejudice to any other rights or claims PASSANTBYTE may have:

• If the Customer breaches any terms or conditions of this Agreement and fails to rectify the breach within 14 (fourteen) days of receiving notice from PASSANTBYTE.
• If the Customer seeks to enter into a compromise, scheme of arrangement, or composition with its creditors.
• If any judgment against the Customer remains unsettled for more than 10 (ten) days without immediate steps being taken to have it rescinded.
• If the Customer commits any act of insolvency, is placed in liquidation or judicial management, or if the Customer is an individual and their estate is sequestrated or voluntarily surrendered.
• If the Customer disposes of a significant portion of its undertaking or assets.
• If the Customer fails to make a payment on the due date for such payment.

In any of the above scenarios, PASSANTBYTE is entitled to, upon providing written notice to the Customer, take the following actions without incurring any liability or obligation:

• Suspend, discontinue, or terminate all Services until the non-payment or breach is remedied to PASSANTBYTE’s satisfaction.
• Consider all outstanding amounts immediately due and payable. PASSANTBYTE may claim such amounts, as well as any other amounts in arrears, including interest.
• Collect and retrieve all Equipment. The Customer is required to inform PASSANTBYTE of the location of such equipment and allow unfettered access for its collection.
• Cancel or terminate this Agreement.

The Customer shall be liable for all costs incurred by PASSANTBYTE 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 customer scale, whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.

Any dispute that arises relating to or arising out of this Agreement, including the validity, implementation, execution, interpretation, rectification, termination, or cancellation of this Agreement, shall be referred to the operating officers of PASSANTBYTE and the Customer or alternates appointed by them. They will use their best efforts to resolve the dispute within five (5) business days of the dispute being referred to them.

All requests by the Customer for amendment or termination of the Services or change of any of the business or personal information of the Customer must be made in writing in accordance with this clause 16. Any notice required to be given in terms of this Agreement shall be valid and effective only if in writing, which shall include electronic communications.

The Parties select their addresses, where they will accept service of any notice or documents for all purposes as their respective domicilia citandi et executandi the physical addresses appearing therein, as follows:

• PASSANTBYTE: as disclosed on its website; and
• Customer: the latest contact details disclosed and recorded by PASSANTBYTE, provided that it is the responsibility of the Customer to inform PASSANTBYTE of any changes to such contact details.

The Parties shall be entitled from time to time by written notice to the other, to vary its contact details, which change will take effect on the date on which the notice is deemed to be received by the other party in terms of clause 4 below.

Any notice given by one party to another party (the “addressee”) which:

• is delivered by hand during normal business hours at the addressee’s physical address shall be deemed to have been received by the addressee at the time of delivery;
• is given by fax shall be deemed to have been received by the addressee on the first business day following the day of successful transmission of the fax;
• is given by pre-paid registered post shall be deemed to have been received by the addressee on the tenth business day following the day of posting; or
• is given by electronic mail shall be deemed to have been received by the addressee on the second business day following the day of successful transmission of the electronic mail.

Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 4.

A transaction (as defined in the CPA) between you and PASSANTBYTE may or may not fall under the provisions of the CPA depending on whether certain values set out in clause 17 in respect of the Customer (“Threshold Values”) are below a certain value at the time the transaction is entered into.

The Threshold Values are the Customer’s asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.

PASSANTBYTE’s duties towards the Customer may vary depending on whether the transaction in question is subject to the CPA, and PASSANTBYTE will act upon the information given to it by the Customer in this regard. Consequently:

• The Customer warrants that any statement made to PASSANTBYTE in respect of its Threshold Values is accurate.
• If the Customer claims that all the Threshold Values are below the relevant value, or otherwise that the CPA applies to the transaction in question, PASSANTBYTE may, at its instance, require the Customer to provide it with financial statements as proof thereof.
• If the Customer misstates the Threshold Values in such a way that PASSANTBYTE considers for a period that the transaction is subject to the CPA when it is not, all provisions of this Agreement that do not apply to transactions subject to the CPA shall retroactively apply to the transaction in question, and the Customer shall be liable for any damage sustained by PASSANTBYTE resulting from such misstatement.

This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term, or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.

PASSANTBYTE may amend the provisions of this Agreement at any time. The amended Agreement will be posted on PASSANTBYTE’s website, and PASSANTBYTE will make all reasonable efforts to advise the Customer of the changes. The Customer also has a duty to keep itself informed of the latest version of the Agreement by accessing PASSANTBYTE’s website regularly. Amendments will become effective 30 (thirty) days after the new version has been published on PASSANTBYTE’s website. If a Customer wishes to object to any of the amendments, it may terminate the Agreement, and the termination will be effective one month after receipt by PASSANTBYTE of the written notice of termination, whereafter all Service(s) will be discontinued by PASSANTBYTE. The Customer may not make any amendments to the Agreement.

No latitude, extension of time, or other indulgence which may be given or allowed by any Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement, and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power, or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.

No waiver, suspension, or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension, or postponement will be effective only in the specific instance and for the purpose given.

All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness, or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.

The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

Neither this Agreement nor any part, share, or interest herein nor any rights or obligations hereunder may be ceded, delegated, or assigned by the Customer (including, but not limited to sub-letting or re-selling of any disk space, server capacity, or web hosting) without the prior signed written consent of PASSANTBYTE. In the event of any change in the controlling interest of the Customer, the Customer shall give written notice of such an event, and PASSANTBYTE reserves the right to terminate the Agreement on written notice to the Customer. PASSANTBYTE shall be entitled to cede, delegate, assign, or otherwise transfer any of its rights and obligations hereunder to a third party.

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. The Customer irrevocably consents to the jurisdiction of the Magistrate Courts in accordance with the Magistrates Court Act 32 of 1944, provided that PASSANTBYTE may institute legal proceedings in the High Court of South Africa.

The signatories hereto acting in representative capacities warrant that they are authorized to act in such capacities and accept personal liability under this Agreement should they prove not to be so authorized.