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iamcapetown (PTY) LTD of website iamcapetown.com
VENDORS TERMS AND CONDITIONS
By clicking “I agree to the terms and conditions of the iamcapetown.com Service Agreement” you conclude a binding agreement with iamcapetown (Pty) Ltd (“iamcapetown”) and any Shopper purchasing a product from your store via iamcapetown or the iamcapetown Platform, and below you will see in detail the terms and conditions which you agree to comply with while using the iamcapetown Platform. You may remove yourself from this agreement at any stage. We know that these things can get long and boring, but it is important to us that you know how we work. Please pay particular attention to the clauses written in bold and underlined.
If there is anything that you are unsure of, please contact us before clicking “I agree”. If there is anything that you don’t agree with please do not click “I agree” and please do not make use of the iamcapetown platform.
These terms and conditions must be read along with iamcapetown’s Privacy Policy (www.iamcapetown.com/content/privacy-policy) and iamcapetown’s Fee Policy (www.iamcapetown.com/fee-policy), and by clicking “I agree” you warrant that you have read and agree to be bound by the content of both documents. iamcapetown may, in its sole discretion amend, modify or revise these Terms and Conditions at any time. In the event that iamcapetown decides to do so, a notification will be sent to your appointed e-mail address. The amendment, modification or revision will be effective from date and time of sending and your continued use of the iamcapetown’s Platform after such a notification has been sent will indicate to iamcapetown your acceptance thereof and you will be bound for all legal purposes by such amendments, modifications or revisions.
DEFINITIONS
The following words and phrases used in this agreement will have the meanings or interpretation assigned to them, unless otherwise indicated by the context:
· “Applicable Laws” means in relation to a person, the common law and all and any applicable:
(a) Statutes and subordinate legislation and regulations,
(b) Ordinances, legislations and directives,
(c) Codes of Practice, notices, circulars, judgements and decisions of the relevant authority,
(d) By-laws.
· "Agreement" means these terms and conditions read with the iamcapetown Privacy Policy and iamcapetown Fee Policy.
· “Appointed e-mail address” means the e-mail address reflected in your Registration Information, as amended from time to time.
· “Checkout" means:
(a) The user clicking the add to cart button after selecting the product;
(b) The user clicking on proceed to checkout button, electing delivery method and either entering the required details or ensuring that the details on the Billing Address are correct;
(c) The user then being redirected to a summary of the purchase;
(d) The user thereafter being directed to the payment gateway;
(e) On completion of payment being directed to user’s Dashboard at which time the checkout will be complete.
· “CPA” means consumer protection act 68 of 2008
· "Dashboard" means a page where you can manage your profile and account.
· “Delivery” means receipt of the product by the shopper either through iamcapetown or instore collection by shopper.
· “Delivery Period” means two (2) business days from checkout provided that the purchase is made before 13:00, failure whereby delivery would be made on the third business day from checkout.
· “ECTA” means the Electronic Communications and Transactions Act 25 of 2002.
· "Fees" means any amount which iamcapetown charges in terms of iamcapetown’s Fee Policy.
· "Fee Policy" means the document as at www.iamcapetown.com/fee-policy.
· "Indemnified Party" means iamcapetown, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of iamcapetown, and each of their respective officers, employees, contractors, consultants and agents from time to time.
· "Intellectual Property Rights" means industrial and intellectual property whether protected by common law or under statute including (without limitation) copyright and neighbouring rights, all rights in relation to inventions (including registered patents and the benefit of any applications for a patent), registered and unregistered trademarks, registered and unregistered designs including drawings, circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world.
· ‘Popi” means protection of personal information Act 4 of 2013
· "Privacy Policy" means the document as at www.iamcapetown.com/privacy-policy
· "Product” includes and means, but is not limited to: Food and drinks that are packaged, apparel, design, sculptures, music, fashion, video, photography, vouchers, prints, digital media, film, accessories, vouchers and paintings, excluding Prohibited Products.
· "Prohibited Products" are the products listed below which iamcapetown expressly prohibits Vendors from selling or offering for sale on the iamcapetown Platform. This includes but is not limited to product which any relevant local, provincial, national or international law or regulation prohibits being offered for sale.
(a) Products which may be hateful or racially, ethnically sexually or otherwise objectionable, or which contain child pornography, or are otherwise pornographic, or may be harmful to minors;
(b) Any products which are not your legal property or which you do not have the right to sell;
(c) goods that do not exist;
(d) any food not packaged or which does not comply with any laws relating to the sale of food to consumers by commercial merchants;
(e) firearms, explosives, or weapons;
(f) Any product which would cause iamcapetown to violate a law by advertising, offering or selling same;
(g) Stolen or counterfeit products;
(h) Any products which are dangerous;
(i) Any unregistered or registered securities;
(j) Products that infringe or otherwise violate the rights of others;
(k) Controlled substances.
· "Registration Information”" information provided by you when registering for the iamcapetown Platform.
· “iamcapetown” means a company duly incorporated with limited liability and registered according to the Company Laws of the Republic of South Africa, having its principal place at 4 Zastron Road, Milnerton, Cape Town.
· "iamcapetown Platform" means the Software as a Service ("SAAS") online system that makes trade between Vendors and Shoppers of product through iamcapetown possible.
· "iamcapetown Ratings and Review System” means the combination of ratings and comments provided by the Shoppers in reviewing various Vendors which are reflected below their listings.
· “Shopper” means an active, registered user of the iamcapetown Platform who locates and purchases Product via the iamcapetown Platform;
· "Site" or "Website" means a website by which iamcapetown offers the iamcapetown Platform from time to time, currently www.iamcapetown.com.
· “Store” means the online store created by you in order to list, promote and sell its Product.
· "Third-Party payment provider" means the third party that processes payments on behalf of iamcapetown users, being PayU.
· “Transaction” means shopper has completed payment in the checkout process and the product purchased from you has been received by the shopper.
· "user" or "users" means any Shopper(s) or Vendor(s), or someone who is otherwise using the Site.
· “User Account” means the registering of user information through the iamcapetown platform in order to create a store and sell product directly to shoppers via iamcapetown.
· "VAT" means any value added tax, or other consumption tax, and will be charged at the rate prescribed by the Minister of Finance from time to time.
· "Vendor" means an active, authorised registered user of iamcapetown who has created a store on the iamcapetown Platform in order to list, sell and market Product.
· “Vis major” a superior force resulting from natural causes and without the intervention of human beings including, but not limited to hurricanes, tornados, earthquakes, flood.
· "we", "us", "our", "ourselves" and "iamcapetown" are used interchangeably in these Terms and Conditions and all mean iamcapetown.com or iamcapetown (Pty) Ltd as the case may be.
· "you" or "your" means you as a Vendor, and your successors and permitted assigns; and
· "your information" includes name, address, goods purchased and buying behaviour.
1. TRADING ON THE SITE
1.1 In order to Utilise this Site you will need to register and create a user account (the "Account"). By using the site:
a. You guarantee that your Registration Data is true, up to date, accurate and complete.
b. You will update the Registration Information to keep it accurate and complete. If iamcapetown suspects that your Registration Data is inaccurate, incomplete or non-current, iamcapetown has the right to suspend/terminate Your Account and refuse current or future use of the iamcapetown Platform.
c. You may never use another users Account without permission, and by using another users account you warrant that you have permission to do so;
d. You are solely responsible for your account and all activity on your account
e. You are solely responsible to keep your password secure. iamcapetown will incur no liability from failure to keep your password and access details secure.
f. You must notify iamcapetown immediately of any security breaches on your account. You will be liable for any breach to your account. iamcapetown will not be liable for any losses due to unauthorised access.
g. All Registration Information becomes the property of iamcapetown.
1.2 iamcapetown provides a platform for the sale of products, excluding prohibited products, and therefore:
a. iamcapetown does not guarantee or represent that the descriptions of any product placed on this Site by you will be accurate;
b. iamcapetown does not represent or hold out that we can or could confirm any matters relating to any information supplied to the Third-Party payment provider;
1.3 iamcapetown undertakes to process all Registration Information in terms of the iamcapetown Privacy Policy at www.iamcapetown.com/privacy- policy.
1.4 iamcapetown guarantees that the product purchased from you will be delivered to the appointed address of the shopper in accordance with the Delivery Period.
1.5 iamcapetown allows you the Vendor to remove yourself from the platform by communicating your intent via email to info@iamcapetown.com. The suspension and deletion of your account will pend completeness of payments, deliveries and complaints.
1.6 iamcapetown shall have the right to rely, without further inquiry, on provision of the user identification(s) and password(s) as sufficient to authenticate use of the iamcapetown Platform.
1.7 iamcapetown will not be involved in disputes between Shoppers and Vendors resulting from or relating to any transaction concluded on the iamcapetown Platform, or in terms of this Agreement.
1.8 The iamcapetown Platform allows an active, authorized registered Vendor to create a shop store on the iamcapetown Platform in order to list, promote, market and sell Product directly to shoppers via iamcapetown;
1.9 The iamcapetown Platform enables the Shopper to locate and purchase your product from within the borders of the Republic of South Africa; and have the purchased product delivered to the address appointed by the shopper during the checkout process or alternatively at your store if elected by the shopper during the checkout process.
1.10 The iamcapetown Platform is used as follows:
a. You choose your own username and password in order to login to the Platform and manage your store.
b. You are able to manage and update your Registration Information on your Dashboard.
1.11 iamcapetown may, in iamcapetown’s sole discretion, change some or all of the services offered on iamcapetown’s platform and Fees charged at any time. In the event iamcapetown introduces new services or Fees, a notification will be sent to your appointed e-mail address and such change or introduction will be effective from date and time of sending and your continued use of the iamcapetown’s Platform after such a notification has been sent will indicate to iamcapetown your acceptance thereof.
1.12 A statement will be made available to you on your Dashboard after completion of the checkout process.
1.13 In order to close your user account, you will be required to e-mail iamcapetown at info@iamcapetown.com.
1.14 Unless otherwise stated, all prices which appear on the your store must be quoted in South African Rands(ZAR) and iamcapetown accepts no liability for any incorrect and erroneous pricing. In the event of incorrect and erroneous pricing, you undertake to make available to the shopper the Product at that displayed price
1.15 iamcapetown may restrict and or terminate services to you at any moment without notice and without needing to furnish any reasons relating to such restrictions or terminations.
1.16 iamcapetown will not provide any computer equipment, network infrastructure, connections, hardware or software which you may require to access this Site.
1.17 iamcapetown is not directly involved in any sale and purchase of any product on this site save for providing a platform for the sale of products excluding prohibited products.
1.18 iamcapetown is not capable of establishing whether nor do we represent or hold out that Product offered for sale on this site is legally capable of being sold and that no other party or person possess a stronger right.
1.19 iamcapetownhy cannot confirm, nor do we represent or hold out that the identity of each Shopper is who they claim to be.
1.20 iamhealthy cannot guarantee nor do we respresent ourselves as an agent or manufacturer of any of the product sold via iamhealthy or the iamhealthy Platform, nor that the descriptions and respresentations regarding the product purchased via iamhealthy or the iamhealthy Platform is accurate.
1.21 In the Event that the Shopper elects delivery, you agree to Utilise the iamhealthy Delivery system.
2. RIGHTS OF THE SHOPPER IN USING THE iamhealthy PLATFORM
2.1. Subject to the terms and conditions of this Agreement, iamcapetown hereby grants shoppers a limited, revocable, non-exclusive, non- transferable, absolute right to use the iamcapetown Platform solely for purposes of purchasing products directly from you via iamcapetown.
2.2. Shoppers may update, alter or edit their personal identification information at any time via the iamcapetown Dashboard and/or by following the instructions located in the iamcapetown Privacy Policy and are afforded all the rights granted to a data subject in terms of Popi.
2.3. iamcapetown reserves any and all rights not expressly granted to Shopper herein. Except when expressly permitted by iamcapetown, Shopper undertake not to:
a. modify, copy or make derivative works based on the iamcapetown Site or Platform;
b. resell, transfer, sell, sublicense, distribute, assign or otherwise commercially exploit the iamcapetown Site or Platform in any way;
c. reverse engineer, decompile, modify, translate, disassemble the iamcapetown Site or Platform with the intention of copying, modifying or making derivative works based on the iamcapetown Platform;
d. lease, rent or otherwise transfer rights to any aspect of the iamcapetown Site or Platform to a third party; or
e. interfere or modify the functionality or presentation of the iamcapetown Site or Platform. Shopper further agrees that upon termination or expiration of this right, you shall no longer have the right to use the iamcapetown Platform.
3. VENDOR DUTIES, OBLIGATIONS AND WARRANTIES
3.1. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that:
Your information:
i. is accurate and not false, misleading, deceptive or fraudulent;
ii. does not breach any Intellectual Property Rights of a third party;
iii. is made in compliance with all Applicable Laws, government regulations or guidelines;
iv. is not falsified, threatening or offensive or does not otherwise constitute harassment;
v. does not contain confidential information or trade secrets of a third party unless it has obtained the consent of the third party owner;
vi. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
vii. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature; and
viii. does not contain child pornography, bestiality or any other obscene or offensive material.
3.2. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that the Shopper is afforded the rights granted to a consumer in terms of ECTA
3.3. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that the Shopper is afforded the rights granted to a consumer in terms of the CPA
3.4. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that it you are the legal owner of the Product you are offering for sale on the iamcapetown Platform and you have the legal capacity to conclude the sale and to pass the title in the Product to the Shopper.
3.5. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that you will not hyperlink to or include descriptions of Product that you are not offering for sale via iamcapetown or the iamcapetown Platform
3.6. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that the Product you offer for sale and sell on the iamcapetown Platform:
i. is reasonably fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to matters including, without limitation, the description of those goods and their price; and
ii. corresponds with the description that it has posted on its Store; and
iii. are not defective; and
iv. is free of any charge or encumbrance such that the Shopper will be able to enjoy quiet possession of those goods;
v. is legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods and services is not in contravention of any law
3.7. In the information provided about the Product you offer for sale, or sell on the iamcapetown Platform, you must set out the following information for sale of those Product:
a. purchase price;
b. returns policy;
c. unless stated to the contrary, any value will refer to South African Rands (ZAR);
d. and You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that such terms and conditions will include any matters prescribed by us under this Agreement.
3.8. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to the Shopper and separately to iamcapetown that any Product you advertise or offer for sale via the iamcapetown Platform is readily available and held in your inventory and that you will make such product available for Delivery.
3.9. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to iamcapetown that you indemnify us from any and all liability and consequential damages incurred by your failure to adhere to the provisions of Clause 3.8.
3.10. You hereby expressly unconditionally and irrevocably agree, undertake and warrant to iamcapetown that should a Shopper elect the “Pick up Option” that you will take all reasonable steps to ensure that your store is accessible during your trading hours.
4. SHOPPER’S DUTIES, OBLIGATIONS AND WARRANTIES
4.1. Shoppers expressly unconditionally and irrevocably agree, undertake and warrant to the Vendor and separately to iamcapetown that the information provided by Shoppers:
i. is accurate and not false, misleading, deceptive or fraudulent;
ii. does not breach any Intellectual Property Rights of a third party;
iii. is made in compliance with all Applicable Laws
iv. is not forged, threatening or offensive or otherwise constitutes harassment;
v. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;
vi. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
vii. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature;
viii. you have the legal capacity to purchase any Product
4.2. Shoppers expressly unconditionally and irrevocably agree, undertake and warrant to the Vendor and separately to iamcapetown that the purchase of any Product through the iamcapetown Platform is entirely at your own risk.
4.3. Shoppers expressly unconditionally and irrevocably agree, undertake and warrant to the Vendor and separately to iamcapetown that you have read and understood you’s Refund and Return policy and you agree to be bound by the terms thereof, and that you acknowledge that iamcapetown bears no onus or liability regarding any dispute relating to the refund of a product or any consequential damages incurred by either you or you.
4.4. Shoppers expressly unconditionally and irrevocably agree, undertake and warrant to the Vendor and separately to iamcapetown that You agree to make all payments through iamcapetown’s Third-Party payment provider, currently PayU.
5. NATURE OF THE TRANSACTION BETWEEN YOU AND SHOPPER
5.1. By placing an order on iamcapetown, the Shopper enters into a direct transaction and relationship with you via the iamcapetown Platform.
5.2. iamcapetown encourages the parties to conclude the transaction in a fair and equitable manner.
5.3. Upon completion of checkout and clicking of the “pay now” button, payment for the Product is due to iamcapetown’s account the details of which are as follows:
Bank : Nedbank Current Account
Branch : Paarl Mall
Account number : 1122839081
Branch code : 198765
5.4. iamcapetown is simply holding the funds for the relevant Vendor of the Product.
5.5. All sales are legally binding between you and the Shopper.
5.6. iamcapetown charges a 15% facilitation fee for each sale. This is payable to the vendor Weekly.
5.7. All advertising charges on the iamcapetown platform will be for your account.
5.8. iamcapetown will deliver the product to you the Shopper within the Delivery Period, unless one of the following exceptional circumstances occur:
a. the Shopper fails to provide sufficient details to enable iamcapetown to complete delivery;
b. there are elements of vis major preventing iamcapetown from completing its delivery;
c. there is a power outage;
d. the Shopper’s identity cannot be authenticated and verified by you.
5.9. All services sold via the iamcapetown Platform shall be rendered in accordance with the time schedules and terms set out by you.
5.10. Should one of the exceptional circumstances in clause 5.6 occur, iamcapetown endeavours to deliver the product as soon as readily possible after the termination of the exceptional circumstance.
5.11. You are entitled to rate a Vendor using the iamcapetown Rating and Review System.
5.12. You agrees that ratings and review scores may be provided about them and their products and services.
5.13. You are only permitted to rate and review a Vendor if there exists a completed transaction between yourself and the specific Vendor.
5.14. You undertake to provide ratings and reviews that are fair and in no way vexatious or malicious. Ratings and reviews cannot be amended or edited once submitted. Caution must be taken when rating or reviewing as these can be utilised for litigation purposes.
5.15. You may not abuse the Ratings and Review system, which includes adjusting ratings and reviews higher or lower by utilising another Shoppers account. Threatening racially offensive, abusive derogatory, discriminatory or profane language is also regarded as abuse of the system.
5.16. iamcapetown promotes and preserves freedom of expression as envisaged by Section 14 of the Constitution of the Republic of South Africa and will only remove ratings and reviews in exceptional circumstances, however you consent to the removal of any ratings and reviews which contravene the provisions of this clause.
5.17. iamcapetown will not be held responsible for the ratings and reviews you are given on this Site.
5.18. In the case of all disputes between you and a Shopper, refer to the Disputes clauses below.
6. COMPLIANCE WITH THIS AGREEMENT
6.1. You agree that you will inform us immediately should you breach any terms of this agreement, or if you notice any conduct of another user which you suspect may breach a term of this agreement. This duty on you will be in place whether or not the breach is ongoing, has been remedied or could occur in the future.
6.2. You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement and we undertake not to limit or prejudice your right privacy, unless:
a. doing so is necessary to comply with an obligation imposed by law or could implicate us in criminal behaviour, a civil wrong, or any other claim by a person for which we may have to pay compensation;
b. when processing your information for the proper performance of a public law duty by a public body;
c. doing so is necessary to carry out the actions for the conclusion or performance of any contract or transaction to which you are a party with iamcapetown, you or Deliverer;
d. when your personal information is necessary for pursuing the legitimate interests of iamcapetown or of a third party to whom the information is supplied.
6.3. If we have any reason to believe or suspect, that you are not, or may be in danger of not, complying with or adhering to any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct within 48 hours, failure whereby iamcapetown is entitled in its sole discretion to terminate this agreement without any further notice.
6.4. If we have any reason to believe or suspect, that you are not, or may be in danger of not, complying with or adhering to any of the provisions of this Agreement, then we may send you a notification requesting you to rectify your conduct within 48 hours, failure whereby iamcapetown is entitled to terminate this agreement without any further notice. even though we are not obliged to do so;
6.5. Notwithstanding any rights in this Agreement, iamcapetown expressly reserves the right to terminate any user account with immediate effect and without any notice in the event the non-compliance with this Agreement threatens to cause serious prejudice to iamcapetown or its other users.
6.6. If you:
a. infringe or are suspected of infringing the Intellectual Property Rights of any other person;
b. are suspected of engaging, or have been convicted of engaging, in a settlement insurance or escrow investigation or otherwise, in any fraudulent or criminal activity in connection with this Site or any web site; or
c. otherwise breach this Agreement; we may, in our absolute discretion:
i. withhold from you, your use of any or all of the Services, and access to your information;
ii. delete or remove, without incurring any liability to you, any or all of your information and block in-coming and out-going data or message transfers;
iii. restore your access to the iamcapetown Platform if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and
iv. terminate the Agreement that we have entered into with you, and cancel our obligations to provide the Services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the Services are restored to you.
7. USE OF THIS SITE
7.1. In using this Site, you may not:
a. illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data;
b. alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;
c. impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorised computer functions to our computer systems or those of other users or any other person;
d. offer, sell, export any goods and services if this breaches any applicable laws to you;
e. engage in any practice or conduct that is unlawful under any laws applicable to you;
f. copy, modify, or distribute rights or content from our sites, services or tools or iamcapetown’s copyrights and trademarks;
g. collect information about users (including email addresses), trades listed or sales activities conducted on iamcapetown without the express permission of iamcapetown.
7.2. iamcapetown are fully committed to providing you with the best possible service, but accept no liability or responsibility for:
a. any interrupted, delayed or failed transmission, storage or delivery of information due to a power failure, vis major, software malfunction or equipment, labour unrest, or any other cause beyond the reasonable control of iamcapetown; or
b. any inaccurate, incomplete or inadequate information obtained from the Site supplied by you.
c. any direct or indirect loss or damages that may arise from:
i. any of your conduct that may result in a breach of this Agreement;
ii. iamcapetown denying you access to the website in the case where we believe or have reason to believe that you are conducting activities that are abusive, illegal, or could damage the reputation and or integrity of the website or put iamcapetown in disrepute;
iii. your reliance on any of the information, tools, content or materials that you obtain from the Site.
iv. any links to other websites from the Site as you agree that it is not within our power to control the content of or the products offered on those other websites.
7.3. In using this Site, iamcapetown does not and cannot guarantee:
a. the operation of this Site or the information, tools, content, or materials on this Site and you expressly acknowledge that you use this Site entirely at your own risk; and
b. that this Site, the information, tools, content or materials included on this Site, the iamcapetown servers, or any electronic communications sent by us are free from viruses or other harmful components.
7.4. In using this Site, you agree to the following Copyright provisions:
a. that no part of this Site may be copied or transmitted via any means available to you whether it be now or in the future;
b. that if you copy or transmit portions of this Site iamcapetown are entitled to claim damages against you, which will include the right to claim special, incidental, consequential or indirect damages. iamcapetown will also be allowed to claim for loss of profits and loss of business and will be entitled to recover all legal costs on a scale as between attorney and own client incurred in any such legal proceedings;
c. any unauthorised alteration, use or dissemination of the content or information on this Site is prohibited;
d. that nothing on this Site can be regarded or construed as granting any license or right to use any trademark without iamcapetown's prior written permission and or that of any third party;
e. iamcapetown cannot be held responsible for any consequences that may result from the unlawful breach of copyright or unlawful dissemination of information by third parties relating to information on this Site.
7.5. iamcapetown will not be liable for any damages of any kind or form arising from your use of this Site or from any information, tools, content or materials included on or otherwise made available to you through this Site, including, but not limited to, direct, incidental, punitive and or consequential damages.
7.6. In using information about other iamcapetown users on this Site, you agree:
a. to use user information only in accordance with applicable laws and regulations (including, without limitation, the Protection of Personal Information Act 4 of 2013 and other applicable data protection laws) and only for:
i. iamcapetown-transaction-related purposes that are not unsolicited commercial communications;
ii. using services offered through iamcapetown; and
iii. other purposes a user expressly agrees to.
b. to respect other users' privacy and disclose your privacy and security policies to them.
7.7. The information and material contained on this Site has been prepared in accordance with the Applicable Laws of the Republic of South Africa for use in the Republic of South Africa only. It may not comply with the laws of any other country. We make no representation that the information and material contained on this Site complies with the laws of any country other than the Republic of South Africa. If you choose to access this Site from outside the Republic of South Africa, you do so at your own risk and will be responsible for ensuring compliance with the laws of the country in which you are located.
8. LINKING TO THIRD PARTY WEBSITES
8.1. Any links or references to other web sites on this Site are provided for your convenience only and do not, and are not an express or implied endorsement by us, of those web sites, or the products and services contained on those web sites;
8.2. From time to time iamcapetown may employ the services of third parties to assist with the hosting and management of certain services and aspects of this Platform and Site. iamcapetown reasonably attempts to ensure that our sub-contractors comply with our Privacy Policy and generally accepted security standards and they will be accountable for any non-compliance;
8.3. Should you have any queries arising from transactions you conclude with such third parties, you will be required to contact them directly.
9. ENTERING INTO THIS AGREEMENT
By entering into this Agreement, you warrant and represent to us:
a. In the event of an natural person, i.e. an individual, that you are eighteen (18) years of age or older and possess full legal capacity and thereby enabling you to enter into this Agreement and perform your obligations under this Agreement; or
b. In the event that you are a juristic entity:
i. that your juristic entity is duly incorporated in terms of the applicable laws governing such registration and incorporation and have been issued with a certificate of commencement of business and possess full legal power to trade and conduct such business; and
ii. you whom register as a user on this Site possess the necessary authorization or legal capacity to act on behalf of your juristic entity and legally bind them to this Agreement in performing your obligations under this Agreement; and
iii. entering into this Agreement and concluding any transactions on the iamcapetown Platform does not violate your Constitution, Memorandum of Incorporation, Trust Deed or any incorporating documents.
10. SURETYSHIP
10.1. Should you the user enter into this Agreement on behalf of an juristic entity you hereby bind yourself as Surety and Co-Principal Debtor jointly and severally to iamcapetown for the due and proper fulfilment of all the duties and obligations of the juristic entity its successors-in-title or assigns, arising in terms of this Agreement.
10.2. You agree and declare that:
a. No act of indulgence, relaxation or grace granted by iamcapetown shall prejudice or affect iamcapetown’s rights in terms hereof, and if any action by iamcapetown results in a novation of any debt or liability arising out of or from the debt then you undertake and agree to be similarly bound as Surety and Co-Principal Debtor in favour of iamcapetown of such novated debt or liability.
b. This Suretyship shall remain in force as a continuing covering security until such time as all the obligations of you to iamcapetown have been duly and properly fulfilled.
c. You renounce the benefits of excussion, division and cession of action, the full meaning and effect whereof you know and understand.
d. iamcapetown shall be entitled at its option to institute any legal proceedings which may arise out of or in connection with this Suretyship in any Magistrate's Court having jurisdiction, notwithstanding the fact that the claim or value of the matter in dispute might exceed the jurisdiction of such Magistrate's Court.
e. Without derogating from the generality of any of the provisions of this Suretyship or the ambit of the obligations embraced, my liability shall cover all claims for compensation or damages which iamcapetown may at any time have as a result of the cancellation, termination or breach of any contract between iamcapetown and you which takes place pursuant to the provisions of section 37(1) of the Insolvency Act, No. 24 of 1936, as amended, or, where the juristic entity is a close corporation as applied by virtue of the provisions of the Close Corporations Act 69 of 1984, as amended.
f. It is agreed and declared that all admissions and acknowledgments of indebtedness shall be binding on me and that no amendment hereto, shall be valid unless reduced to writing and signed by all parties, including the amendment hereof.
11. TRANSACTIONS IN CASE OF A MINOR OR LEGAL INCAPACITY
11.1. If you are under 18 years of age or not legally permitted to enter into a binding and enforceable agreement, then you may not register as a user or make use of the services of iamcapetown, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian or spouse.
11.2. If your parent or legal guardian supervises you and gives his/her consent, then such person hereby agrees to be bound and to be liable and responsible for you and for all your duties and obligations in terms of the agreement entered into between yourself and iamcapetown.
11.3. iamcapetown strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should iamcapetown, in our sole discretion find that you have failed for whatsoever reason to comply with the aforementioned provisions or the remaining provisions of these terms and conditions, without prejudice to any other rights that we may have at law.
11.4. To the extent that you utilize this Site or the iamcapetown Platform, iamcapetown will be entitled to accept that you were or are supervised by and have obtained the consent of your parent or legal guardian or curator or trustee. The onus to prove otherwise shall rest with you and by clicking “I agree to the terms and conditions of iamcapetown.com Service Agreement” you provide prima facie evidence or possessing such consent or supervision.
12. PRIVACY STATEMENT
12.1. You hereby agree that the provisions of the privacy policy must be read in conjunction with this Agreement as if specifically incorporated herein.
12.2. iamcapetown agrees to notify you of:
a. The personal information being processed on behalf of iamcapetown and the purpose for which it is processed;
b. The third party collecting the information;
c. How the information is used or processed;
d. With whom the information may be shared;
e. What security measures are in place to prevent any loss or misuse of any information held by iamcapetown;
f. What your options and rights are in our processing of the information.
13. LIMITATION OF LIABILITY AND DISCLAIMER
13.1. Notwithstanding, and in addition to any other provision in this Agreement, you accept and agree that iamcapetown will not be liable to you or any other person for any damage/s, losses, expenses, or other amounts arising (including where the cause cannot be determined and where it arose directly or indirectly) from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this Site, the Services, or as a consequence of such use, access, reliance, or inability to access, including, but not limited to any loss relating to one or more, or a combination, of the following:
a. a failure, or error in the operation, of all or any part of this Site, our computer systems, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, or the taking offline of any of those computer systems or network resources for any reason;
b. any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person;
c. in relation to purchases or sales on this Site, that were not processed or accepted due to technical difficulties or for any reason whatsoever;
d. whether we or another person could have foreseen such a loss or type of loss, or were negligent or reckless, whether or not the loss was suffered in connection with a business or commercial enterprise, including, but not limited to, any economic or consequential loss or damage, any and all damage to, or loss of, any equipment, property, data, or other information possessed by you or any other person, any loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;
e. . any personal losses or hardship, stress and anxiety, nervous shock, or other personal suffering or condition;
f. any errors or omissions in any documentation or other literature provided by us, any errors or omissions in any data, on this Site, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;
g. any reliance on, the information and material contained on this Site about any goods and services or any other information or material whatsoever, or any information and material contained on, and the privacy of, web sites linked to this Site;
h. any conduct, act or omission, whether negligent, reckless, or otherwise, whether within any actual, ostensible, or apparent authority or not, at all on the part of our employees, agents, or authorised representatives.
i. for anything relating to the iamcapetown Rating and Review system;
j. any decision relating to the holding of an inquiry into an alleged breach on the part of one or more of the iamcapetown users.
13.2. To the extent permitted by law, all terms, conditions and warranties or representations, or representation whether express, implied, statutory, common law or otherwise relating to the Services or anything in these terms and conditions, are excluded unless expressly included in this Agreement.
14. INDEMNITY
14.1. While iamcapetown makes every reasonable effort to ensure that the content and information on the Site is accurate, complete and updated, we do not make any guarantee about the suitability of the products and services on the iamcapetown Platform nor that the content and information on the iamcapetown Site or Platform is accurate, complete and updated.
14.2. You agree to fully indemnify iamcapetown, its directors, and employees, and will not hold us responsible for any claim relating to your use of the iamcapetown Site or Platform.
14.3. You agree to fully indemnify iamcapetown, its directors and employees, from any errors or inaccuracies or incomplete information made available by third parties on the Site and agree that, we will not be liable for any loss or damages, including direct, indirect and consequential loss that may arise from any disclosure to or by any third parties.
14.4. You accept that iamcapetown is not responsible for any mistakes in the performance of any calculators or interactive tools used in the calculations.
14.5. All products and services purchased on the Site are subject to confirmation, and any terms or conditions relating to them, at the time of finalising any transactions.
14.6. You acknowledge that some of the content, information, materials or tools on the Site come from third parties or external sources, and you agree that iamcapetown is not responsible, and will not be held liable for any information or content received from these external sources.
14.7. Notwithstanding, and in addition to any other provision in this Agreement, you agree to indemnify iamcapetown and each Indemnified Party against and release them from, any claims, losses, liabilities, suits, demands, proceedings, costs or expenses (including legal costs on a full indemnity basis) directly or indirectly related to, or, arising out of:
a. your use of the Site or Platform;
b. your offering for sale and the sale of, and/or, your purchase of, any goods and services as a result of using the Site of Platform;
c. the reproduction, broadcast, transmission communication or making available of any information or material (including credit card details) by us or any users (other than you) made available by use of the Site or Platform;
d. any alleged breach of a person's rights (including, but not limited to, defamation or misleading or deceptive conduct) by a communication, broadcast or transmission made available by means of the Site or Platform; or
e. any claim by any person arising out of, or in connection with any cessation (temporary or permanent) of the supply of the Site or Platform in accordance with this Agreement.
15. DISPUTES
15.1. You and iamcapetown must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this Clause 16 before starting any proceedings (except proceedings seeking urgent relief).
15.2. The procedure for resolving a dispute is as follows:
a. first, either you or iamcapetown may give notice to the other about the nature of the dispute ("Notice") and you and iamcapetown will seek to negotiate a settlement within 14 working days of receipt of the Notice;
b. second, should the negotiations be unsuccessful and only to the extent that they are, you and iamcapetown undertake to within a further five (5) days to attempt to reach an agreement on an appropriate mediator to resolve the dispute; and
c. should the parties not be able to agree on a mediator or should the mediation be unsuccessful, the dispute if arbitrable in law will be referred to arbitration in terms of the Rules of the Arbitration Foundation of Southern Africa (“the Foundation”) to be arbitrated by an arbitrator appointed by the Foundation.
15.3. You will be liable for all costs incurred by us in the enforcement of any rights which we have in terms of this Agreement or in the recovery of any monies due to us, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgement has been granted in connection with the satisfaction or enforcement of such judgement against you.
16. DISPUTES BETWEEN USERS OF iamcapetown:
16.1. iamcapetown encourages users to report user-to-user disputes to local law enforcement, or a certified mediation or arbitration entity, as applicable.
16.2. iamcapetown, for the benefit of users, may try to help users resolve disputes.
16.3. iamcapetown does so in iamcapetown’s sole discretion, and iamcapetown has no obligation to resolve disputes between users or between users and outside parties.
16.4. To the extent that iamcapetown attempts to resolve a dispute, iamcapetown will do so in good faith based solely on iamcapetown’s policies.
16.5. iamcapetown will not make judgments regarding legal issues or claims.
17. GENERAL TERMS AND CONDITIONS
iamcapetown has an absolute discretion to change, amend, revise or modify the terms of this Agreement at any time. Should iamcapetown do so, we will e-mail or circulate via any other electronic means details of any such changes, amendments, revisions or modifications on this Site that will be effective at the time and date of sending the notification to your appointed e-mail or other method of electronic circulation. Your continued use of the iamcapetown Platform after time and date of sending or circulation will indicate to iamcapetown your acceptance of such change, amendment, revision or modification.
18. SOLE AGREEMENT
18.1. This agreement read with the Privacy Policy and Fee Policy constitutes the sole memorandum of the agreement between the parties relating to the subject matter hereof and no variation of this agreement shall be of any force or effect unless reduced to writing and signed by both parties.
18.2. The parties acknowledge that there are no representations or warranties other than those contained herein.
19. NATURE OF THE RELATIONSHIP OF THE PARTIES
Nothing in this agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute iamcapetown as an agent or representative of the Shopper or vice versa.
20. FURTHER ASSURANCES
Each party to this agreement undertakes to do everything necessary and to act as may reasonably be expected and required by the other in order to give effect to all transactions concluded in terms of this agreement.
21. NON-WAIVER
No indulgence, extension of time, waiver or relaxation of any of the provisions granted by any of the parties to the other in regard to the enforcement of its rights under this agreement, shall be construed as a waiver of such rights (unless expressed as such in a written document signed by the indulgent party) nor shall it serve to stop the indulgent party from strictly enforcing its rights in the event of a subsequent breach thereof.
22. APPLICABLE LAW
22.1. This Agreement will be governed by the laws in force in the Republic of South Africa and the parties agree to submit to the jurisdiction of any competent court in South Africa in respect of any dispute arising from or connected to the effect, interpretation, enforcement, breach of this Agreement or the respective parties’ rights and obligations hereunder.
22.2. The parties agree to submit to the jurisdiction of the Magistrate’s Court in terms of section 45 of the Magistrates’ Courts Act 32 of 1944, irrespective of whether the amount claimed exceeds the applicable monetary limit allowed to institute a claim in the Magistrate’s Court.
23. APPOINTED ADDRESS FOR SERVICE OF NOTIFICATIONS AND LEGAL DOCUMENTS
23.1. The e-mail address that you used to register and later use to login to the iamcapetown Platform (your “appointed e-mail address”) will be your appointed e-mail address for all notification purposes of this agreement.
23.2. You may from time to time change its appointed e-mail address by electronically updating its information on the Dashboard, which change will be effective immediately.
23.3. By entering your physical address in the Registration Information and updating same on your Dashboard from time to time you nominate such address as your domicilium citandi et executandi or the address where you are prepared to receive all notices and legal documents in terms of this agreement.
23.4. A notice given as set out above shall be presumed to have been duly delivered:
a. at the time and on the date which it was sent by iamcapetown to your appointed e-mail address;
b. In the case of delivery to your physical address:
i. on the date of delivery by hand, telex or telefax;
ii. the seventh (7th) day from the date of posting including the date of posting if posted by pre-paid registered post from within the Republic of South Africa; and
