These are the general terms of our relationship with you. They cover any transactions where we provide services to you. Under these terms:
An order is a separate document or form that contains the commercial terms of each specific transaction and incorporates these terms.
2.1. Composition. The agreement consists of these terms of service, our privacy notice, account terms and conditions and any other specific terms applicable to the services.
2.2. Definitions. In the agreement:
2.3. Interpretation. The following rules apply to the interpretation of the agreement:
2.4. Conflict. If there is a conflict of meaning between these terms and any word or phrase in an order or other specific terms, the meaning in the order or specific terms will prevail in respect of the relevant services.
3.1. Commencement. These terms start whenever you accept them by:
and continue until terminated.
3.2. Automatic renewal. If an order involves a subscription, the agreement will continue automatically from the end of the initial term or subsequent automatic renewal period for an automatic renewal period equivalent to the initial term.
3.3. Renewal termination. Either party may terminate the agreement before the end of the initial term or subsequent automatic renewal period by giving the other party at least 30 calendar days prior written notice.
4.1. Placing orders. You place orders with us whenever you order or start using the services through the website or application. These orders are offers to us to buy our services or partners’ services.
4.2. Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.
4.3. Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when we accept your offer.
4.4. Cancellations. We may cancel any order, but we will refund any money you have paid in relation to that particular order if we do.
4.5. Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.
4.6. Separate agreements. Each order is a separate agreement, but you are deemed to have breached all of them if you breach one of them.
5.1. Right. We grant you a right to use the services subject to the following limitations:
5.2. Breach. We may cancel your right if you breach the agreement.
6.1. Basis. We provide the online services to you on the following basis:
6.2. Access conditions. We will only provide online service access to you on the conditions that you will:
6.3. Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.
7.1. Definition. Your data is any data belonging to you and those transacting with you that:
but excludes any derived data that we create for our own purposes, or which is proprietary or confidential to us or our third party vendors, contractors and partners.
7.2. You own it. You own your data, but give us right to use it to provide the services when you provide us with access to it.
7.3. We do not own it. We do not own your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.
7.4. Responsibility. We take the protection of your personal information seriously and will always do our best to protect it, including our best to:
7.5. Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. We may subcontract work involving your data, provided that we:
7.6. Location. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services. We will otherwise ask for and get your consent before doing so to the extent that applicable law requires.
7.7. Email communication. We agree to comply with all relevant direct marketing laws and remove any person from our direct market mailing list who indicates, in writing, that they do not wish to receive further electronic communication from us.
8.1. Definition. User Content is content created by or belonging to you including but not limited to videos, audio (for example music and other sounds), graphics, photos, text (such as blog posts) and branding (including trade names, trademarks or logos) that you submit to us through use of the Service.
8.2. Submission. You may submit to us content subject to the below terms:
8.3. Duration. The duration of the licence you grant to us shall continue:
9.1. Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal information, business records, or customer details
9.2. Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:
9.3. End of agreement. The parties will giveback to the other all confidential information of the other that they have at the end of the agreement, unless:
9.4. Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.
9.5. Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.
10.1. Ownership. We or our third party licensors own all proprietary rights in our services and we or they may prosecute you for any violations of those rights.
10.2. Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.
10.3. Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology if we use it to provide services to you.
10.4. Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.
10.5. Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.
11.1. Fees and Service Charges. Fees and service charges agreed between the parties in writing, will be deducted from your account when due.
11.2. Account Balance. You are required to maintain a positive balance in your account. In the event that your account becomes overdrawn, you must transfer funds into your account as soon as possible to restore a positive balance and additional penalty charges as agreed between the parties will apply. We may stop providing any services until you have paid all amounts due.
11.3. Interest. Overdrawn accounts will bear interest for our benefit at whichever rate is higher between:
Interest will be payable on a claim for damages from when the damages were suffered.
11.4. Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.
11.5. Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.
11.6. Tax. All fees exclude any tax (unless indicated otherwise), which you will pay where applicable in addition to the fees.
11.7. Payment profile. We may provide any registered credit bureau with information about your payment of amounts.
12.1. Service warranties. We warrant that we will:
12.2. General warranties. We warrant further that we:
13.1. Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you cause.
13.2. Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.
14.1. Agreement warranties. You warrant that:
14.2. Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.
15.1. Direct damages limited. We are only liable to you for any direct damages that the services may cause up to the total amount of fees that you have already paid us for them.
15.2. Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.
15.3. Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.
15.4. Survival. This clause about limitation of liability is separate from the rest of this agreement and remains valid after the end of this agreement to the extent allowed by applicable law.
16.1. Breach. If either party:
then the other party may:
16.2. Suspension. We may immediately suspend your right to use the services if:
17.1. Termination for good cause. We may need to terminate the agreement immediately if:
If we need to terminate, we will give you as much notice as reasonably possible in writing.
17.2. Termination for convenience. You may terminate the agreement or a specific order immediately on written notice to us. We will process and confirm your request within 2 business days of receiving written notice.
17.3. Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.
18.1. Acceleration. All amounts due to us for the services become due and payable on termination, cancellation, or expiry the agreement.
18.2. Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but we are not obliged to.
18.3. No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.
19.1. Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognised and appropriate forum for arbitration that is accessible to both parties.
19.2. Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.
19.3. Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.
19.4. Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.
19.5. Relationship. The agreement does not create an employment relationship between the parties.
19.6. Entire agreement. The agreement is the entire agreement between the parties on the subject.
19.7. Changes. We will notify you of any changes to the agreement by email. Those changes will only apply to future services ordered. If you do not agree with the changes, you must stop using the services. If you continue to use the services following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.
19.8. Waiver. Any favour we may allow you will not affect any of our rights against you.
19.9. Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.
19.10. Governing law. South African law governs this agreement.
19.11. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).
19.12. Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
19.13 Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.