1. Acceptance of Terms & Conditions – warranty of capacity to contract.
Use of this website is entirely at your own risk.
This website (www.Bayobab.Africa) is made available to you by Mobile Telephone Networks (Proprietary) Limited (“Bayobab”) conditional upon your acceptance, without modification, of these Terms and Conditions as amended from time to time.
The Terms and Conditions set out below apply to every person who uses, accesses, refers to or views this website (“you” or “your”). Your access to and use of this website constitutes your agreement to and acceptance of these Terms and Conditions.
You hereby warrant to Bayobab that you have the required legal capacity to enter into and be bound by a contract. Minors must be assisted by their legal guardians when reading these Terms and Conditions. If you are unsure whether you have the legal capacity to enter into contracts, please ask someone to assist you with this information before continuing to use this website. If you do not agree with any provision contained in these Terms and Conditions, please stop using or accessing this website immediately.
2. Modification of Terms & Conditions
Bayobab reserves the right, in its sole discretion, to amend (including without limitation, by the addition of new Terms and Conditions) these Terms and Conditions at any time and from time to time without notice to you. Any such amendments shall come into effect immediately and automatically. You undertake to review these Terms and Conditions regularly prior to use of this website for any such amendments.
3.1. The following terms shall have the corresponding meanings assigned to them:
3.1.1. “Intellectual Property” means, collectively, the patents, copyrights (and moral rights), Trade Marks, designs, models, brands, names, trade names, graphics, icons, hyperlinks, Know-How, trade secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain or use same) which are owned by, licensed to, used and/or held (whether or not currently) by Bayobab on or in connection with this website.
3.1.2. “Know-How” means all the ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used by Bayobab in connection with this website, as well as all available information regarding marketing and promotion of the products and services described in this website, as well as all and any modifications or improvements to any of them.
3.1.3. “Terms and Conditions” means these Terms and Conditions.
3.1.4. “Trademarks” means those trademarks owned by Bayobab and any other trademarks, designs, logos, style names, and slogans which Bayobab owns or has the right to use or any derivative service offerings of, and applications for, any of the same.
3.1.5. “Website Material” means the contents of this website, including without limitation, all and any information, data, documents, Intellectual Property, material, products (including software) or services contained in, accessed through, or downloaded or obtained from this website.
4.1. Unless the context requires otherwise or it is expressly stated to the contrary, any words and phrases:
4.1.1. defined in these Terms and Conditions will bear the same meaning throughout these Terms and Conditions;
4.1.2. not defined in these Terms and Conditions but defined in ECTA will bear the same meaning given to them in ECTA.
4.2. A copy of ECTA can be viewed and downloaded here.
4.3. The headings used in these Terms and Conditions are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the whole or any part of these Terms and Conditions.
4.4. No term or provision contained in these Terms and Conditions is to be interpreted or construed so as to exclude any rights granted by Chapter VII of the Electronic Communications and Transactions Act 25 of 2002 to any natural person who enters or intends entering into an electronic transaction with BAYOBAB on this website.
4.5. References to “writing” or notices “in writing” by Bayobab in these Terms and Conditions only include writing on paper signed in ink by an authorised representative of Bayobab and specifically exclude any writing which may be in electronic form.
4.6. Any reference in these Terms and Conditions to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.
5. Website material – scope of permitted use
5.1. Subject to the provisions of these Terms and Conditions, you may only download, view and print the Website Material restrictively for your own personal use and only for non-commercial purposes. This permission does not extend to the source code of this website or to the source code of any software or computer program that forms part of the Website Material.
5.2. You may not alter, modify, decompile, reverse-engineer, copy, reproduce, distribute, transfer, sell, transmit, display, broadcast, publish, exploit, license or create derivative works from the Website Material.
5.3. You may not use this website or the Website Material for any illegal or unlawful purposes or as prohibited by these Terms and Conditions.
5.4. You may not link to any page on this website or frame this website or any of the pages on this website in any way whatsoever without the prior written permission of Bayobab. Recognising the global nature of the Internet, you agree to comply with all local laws, rules, and regulations regarding online conduct.
5.5. This website is Copyright © 2023 Bayobab. All rights reserved. You must get Bayobab’s prior written approval if you wish to copy, reproduce, distribute, transmit, display, broadcast or publish any Website Material, whether electronically or otherwise. Unless the relevant additional Terms and Conditions provide otherwise, requests for approval must be submitted to webmaster@Bayobab.Africa. Bayobab is entitled, in its sole discretion, to withhold or grant consent and may also impose any conditions on any consent which is granted.
5.6. To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Website Material may be expressly permitted by Bayobab (such permission to be interpreted in its most restrictive sense) you may do so, provided that all Trade Marks, trade names and all copyright, ownership, proprietary and confidentiality notices as are included on the original are retained and displayed without alteration or modification and not in any manner obscured or removed.
5.7. You may not print any part of the website or the Website Material, except where Bayobab expressly states that you may do so. When printing the website or the Website Material, you must ensure that the following copyright notice appears prominently on every page that is printed: Copyright © 2023 Bayobab. All rights reserved.
5.8. You acknowledge that you do not acquire any ownership rights or rights of use in or to any Website Material by downloading that Website Material or by copying, reproducing, distributing, transmitting, displaying, broadcasting or publishing that Website Material where permitted to do so.
5.9. You may not transfer any rights or obligations in terms of these Terms and Conditions to any other person or entity.
5.10. You are solely responsible for obtaining and maintaining all facilities, services, products and equipment which may be required by you for the exercise of your rights of permitted use of this website.
6. Your behaviour when using this website
6.1. You may not use this website to obtain or distribute:
6.1.1. copyrighted material or material protected by laws relating to intellectual property rights without the permission of Bayobab;
6.1.2. material containing viruses or any other destructive materials or data or code which is able to corrupt, interfere with, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation of a computer system or hardware or software;
6.1.3. material which is defamatory, unlawful or contains hate speech; or 6.1.4. bulk e-mail, whether solicited or unsolicited.
6.2. You must not interfere with or jeopardise the functionality or the operation of any part of this website or attempt to interfere with or jeopardise, disrupt, disable, harm or otherwise impede in any manner the functionality or operation of any part of this website or of the Website Material.
6.3. You are strictly prohibited from using this website for “spoofing”, “hacking”, “flaming”, “cracking”, “phishing” or “spamming”.
6.4. You may not intercept any information transmitted to or from Bayobab or this website which is not intended by Bayobab to be received by you.
6.5. You must respect other users of this website at all times.
6.6. Any reference in these Terms and Conditions to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be.
7. Intellectual property
7.1. This website is Copyright © 2023 Bayobab. All rights reserved.
7.2. The Intellectual Property is owned by Bayobab or used under license or with permission. Trademarks displayed on this website are either trademarks owned by Bayobab or belong to their respective owners. You may not copy, reproduce, display or use any Intellectual Property in any manner whatsoever without Bayobab’s prior written permission and nothing contained on this website should be construed as granting any licence or right of use of any Intellectual Property.
7.3. Where any of the Website Material has been licensed to Bayobab or belongs to any third party, your rights of use will also be subject to any Terms and Conditions which that licensor or third party imposes from time to time and you agree to comply with such Terms and Conditions.
8. Changes to the website and removal of access MTN may:
In its sole discretion, change, amend, suspend, withdraw or discontinue any aspect, feature, product, service or information contained on this website at any time without any prior notice to you. Bayobab may also impose limits on certain features and services or restrict your access to any or all of the website or Website Material without notice or liability.
9. Disclaimers and limitations of liability
9.1. Your use of this website and reliance on any Website Material or services available on this website is entirely at your own risk. This website, including all Website Material, is provided “as is” and Bayobab will not be liable for any unavailability, interruption, downtime, malfunction, or failure of this website or the Website Material for any reason whatsoever.
9.2. Bayobab does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed on, linked to or distributed through this website or the Website Material. You acknowledge that any reliance upon any such opinion, advice, statement or information shall be at your sole risk. Bayobab reserves the right, in its sole discretion, to correct any errors or omissions in any portion of this website and the Website Material.
9.3. Information, ideas and opinions expressed on this website and in the Website Material should not be regarded as professional advice or the official opinion of Bayobab, and you are strongly advised to seek professional advice before taking any course of action related to them. More specifically, certain information such as share price data, interest rates and exchange rates constitute guidelines only and the provision of this data may be delayed by a period of time. Accordingly, you are strongly advised to consult Bayobab or your professional adviser before trading or acting on such information. Calculators supplied on this website are for indicative values only and Bayobab shall not be responsible or liable for any inaccuracies or miscalculations arising out of defects or incorrect use.
9.4. Subject to the provisions of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) and to the fullest extent permissible by law, Bayobab disclaims all warranties of any kind, whether express or implied, including without limitation to the implied warranties of merchantability or fitness for a particular purpose, in respect of this website and the Website Material. Bayobab does not warrant that the functions contained in this website or the Website Material will meet your requirements; will be uninterrupted, timely, secure or error-free; will meet your requirements or operate in every combination selected by you for use; that any defects or errors will be corrected; or that this website or the Website Material or the server that makes them available is free of viruses or other harmful components. Bayobab does not warrant that this website or the Website Material will provide specific results from use of this website or the Website Material or any content, search or link within them or that the results that may be obtained from the use of this website will be accurate or reliable.
9.5. Whilst Bayobab takes reasonable precautions in its operation of the website, neither Bayobab nor its agents or representatives will assume any responsibility and neither Bayobab nor its agents or representatives (in whose favour this constitutes a stipulatio alteri) shall be liable for any damages to or for viruses that may infect your computer equipment or other property on account of your access to, use of or browsing of this website or the Website Material or your downloading of any materials, data, text images, video or audio from this website or the Website Material. Any material downloaded or otherwise obtained through the use of this website or the Website Material is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
9.6. To the extent that information displayed on this website relates to any stock exchanges, financial markets, financial products, securities, derivatives, units, funds, currencies and/or exchange rates, you acknowledge that this information may not be accurate or complete. You further acknowledge that any assessment or reflection of the performance of any security, unit, fund, product, stock exchange, derivative or financial market does not mean that such performance will be repeated or should be relied upon in any way.
9.7. You agree that under no circumstances whatsoever, including as a result of Bayobab’s negligent (including grossly negligent) acts or omissions or those of its servants, agents or contractors or other persons for whom in law Bayobab may be liable, shall Bayobab or its servants, agents or contractors or other persons for whom in law Bayobab may be liable (in whose favour this constitutes a stipulatio alteri) be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), including but not limited to any loss of profits, loss of revenue, loss of operation time, corruption or loss of information or data and/or loss of contracts sustained by you, your directors, servants, dealers or customers, resulting from your use of or inability to use the website or the Website Material.
You hereby indemnify MTN and its officers, directors, employees, servants, agents or contractors or other persons for whom in law MTN may be liable (in whose favour this constitutes a stipulatio alteri) from any loss, damage, damages, liability, claim or demand due to or arising out of your use of this website or the Website Material or your breach of these Terms and Conditions.
Links to and from this website to other websites belonging to or operated by third parties do not constitute an endorsement by MTN of such linked websites or their contents nor do they constitute any association by MTN with their owners or operators. MTN has no control over such linked websites and is not responsible or liable for any content, goods or services available on or through any such linked websites or for any damage, damages or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods or services available on or through any such linked websites. You agree that where you access linked websites, you do so entirely at your own risk.
12. Dealings with third parties
Your interaction, correspondence or business dealings with third parties which are referred to or linked to or from this website entirely at your own risk and are solely between you and such third party including the acquisition, disposal, payment and delivery of any goods or services, and any terms, conditions, warranties or representations associated with such interaction, correspondence or business dealings. You are solely responsible for identifying and familiarising yourself with any Terms and Conditions which will govern your relationship with such third party. You agree that MTN shall not be responsible or liable for any damage, damages or loss caused or alleged to be caused by or in connection with your interaction, correspondence or business dealings with such third parties.
13. Variation of certain deeming provisions in ECTA
13.1. By using this website, you agree that these Terms and Conditions create a binding agreement between MTN and you, even though these Terms and Conditions are wholly or partly in the form of a data message. You agree specifically that:
13.1.1. the agreement will be treated as if it was concluded at MTN’s physical address detailed in clause 16.1 below on the date on which you first made any use of this website;
13.1.2. an electronic signature is not required by you or MTN for purposes of agreeing to these Terms and Conditions. You agree that by using this website or the Website Material this will be sufficient evidence of your agreement to these Terms and Conditions;
13.1.3. any data message sent by you to MTN will be deemed to have been sent from MTN’s physical address detailed in clause 16.1 below if neither your usual place of business nor residence is located within the Republic of South Africa;
13.1.4. any data message sent by MTN to you will be deemed to have been received by you at MTN’s physical address detailed in clause 16.1 below if neither your usual place of business nor residence is located within the Republic of South Africa;
13.1.5. a data message sent by you to MTN will only be treated as having been received by MTN when an acknowledgement of receipt is sent by an individual who had authority to act on behalf of MTN in respect of that data message; and
13.1.6. this agreement will be interpreted and implemented in accordance with the laws of the Republic of South Africa and you agree to the jurisdiction of the courts of the Republic of South Africa
14.1. In the event that any claim, matter or dispute arises between you and MTN arising out of or in connection with your use of any banking services or products that is not governed by the Code of Conduct, then such claim, matter or dispute must be referred to the Customer Services Department of the relevant MTN company (see About MTN Group of Companies). Should the Customer Services Department fail to resolve same within 5 (five) business days of the referral then the claim, matter or dispute may be finally resolved in accordance with the provisions of clause 14.2.
14.2. In the event that any claim, matter or dispute arises between you and MTN arising out of or in connection with your use of this website, the Website Material or these Terms and Conditions on any matter that does not fall within the ambit of clause 14.1 and is not governed by the Code of Conduct then the claim, matter or dispute may be finally resolved in accordance with the Commercial Rules of the Arbitration Foundation of South Africa by an arbitrator or arbitrators appointed by that foundation. The arbitration shall be held at Johannesburg in the English language and shall be held immediately with a view to be completed within 21 (twenty one) days after it is demanded. You agree that the decision of the arbitrator in the arbitration proceedings shall be final and binding on you and may be made an order of court.
14.3. MTN reserves the right to deal with the matter in a forum of its choice, which will include but will not be limited to, the courts of the Republic of South Africa. This right will continue to apply after termination, cancellation or amendment of these Terms and Conditions. You agree that MTN is entitled, but is not obliged, to institute any proceedings arising out of or in connection with these Terms and Conditions or your use of the website or of the Website Material, in any Magistrates’ Court in the Republic of South Africa having jurisdiction over you, even though the cause of action in question exceeds the jurisdiction of that court.
14.4. Notwithstanding the above provisions, either party shall be entitled to institute action in any court of law of competent jurisdiction to obtain urgent interim relief or (in the case of MTN) to collect any outstanding debts due and payable by you to MTN.
15. Governing law
You hereby indemnify Bayobab and its officers, directors, employees, servants, agents or contractors or other persons for whom in law Bayobab may be liable (in whose favour this constitutes a stipulatio alteri) from any loss, damage, damages, liability, claim or demand due to or arising out of your use of this website or the Website Material or your breach of these Terms and Conditions.
16. Legal service of documents and notices
Links to and from this website to other websites belonging to or operated by third parties do not constitute an endorsement by Bayobab of such linked websites or their contents nor do they constitute any association by Bayobab with their owners or operators. Bayobab has no control over such linked websites and is not responsible or liable for any content, goods or services available on or through any such linked websites or for any damage, damages or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, goods or services available on or through any such linked websites. You agree that where you access linked websites, you do so entirely at your own risk.
Any provision in these Terms and Conditions which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of Terms and Conditions, without invalidating the remaining provisions of these Terms and Conditions.
18.2. You agree that we shall be entitled to send “cookies” from this website to your computer. You acknowledge that a “cookie” is simply a message given by our website to your browser which is stored on your computer and contains information to personalise your experience on our website by being relayed to our server each time your browser requests a page from our website.
19. Monitoring of communications
19.1. You expressly give your consent for us to monitor your internet and e-mail traffic on our various website servers and domains. You acknowledge that Bayobab monitors internet and e-mail traffic on these various website servers and domains primarily to ensure that surfers and consumers are not acting illegally, unlawfully or in breach of these Terms and Conditions and:
19.1.1. to maintain the integrity and security of our websites and our information technology systems;
19.1.2. to investigate and detect any unauthorised use of our websites and our information technology systems; and
19.1.3. as an inherent part of and to secure the effective operation of our websites and our information technology systems.
If you breach any of these Terms and Conditions, Bayobab may immediately, automatically and without notice to you, terminate your use of and access to Bayobab’s website, and/or prohibit your future access to use of Bayobab’s website, and/or take appropriate legal action against you (including without limitation, applying for urgent and/or interim relief or claiming damages), without incurring any liability to you of any nature whatsoever and howsoever arising, and all of Bayobab’s rights in this regard are expressly reserved.
Any costs, including legal costs on the attorney and own client scale and value-added tax, incurred by Bayobab arising out of your Use of this website or the Website Material, or a breach of these Terms and Conditions, will be borne by you.
22. Whole agreement
22.1. These Terms and Conditions constitute the whole agreement between you and Bayobab relating to your access to use of this website.
22.2. No indulgence, extension of time, waiver or relaxation of any of the provisions or terms of these Terms and Conditions which Bayobab may show, grant or allow you shall operate as an estoppel against any party in respect of its rights under these Terms and Conditions nor shall it constitute a waiver by Bayobab of any of Bayobab’s rights and Bayobab shall not thereby be prejudiced or stopped from exercising any of its rights against you which may have arisen in the past or which might arise in the future.