Terms and Conditions
Welcome to Business Market 24!
These terms and conditions outline the rules and regulations for the use of Business Market 24’s Website, located at https://businessmarket24.co.za/.
By accessing this website we assume you accept these terms and conditions. Do not continue to use Business Market 24 if you do not agree to take all of the terms and conditions stated on this page.
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and all Agreements: “Client”, “You” and “Your” refers to you, the person log on this website and compliant to the Company’s terms and conditions. “The Company”, “Ourselves”, “We”, “Our” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services, in accordance with and subject to, prevailing law of Netherlands. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.
Unless otherwise stated, Business Market 24 and/or its licensors own the intellectual property rights for all material on Business Market 24. All intellectual property rights are reserved. You may access this from Business Market 24 for your own personal use subjected to restrictions set in these terms and conditions.
You must not:
- Republish material from Business Market 24
- Sell, rent or sub-license material from Business Market 24
- Reproduce, duplicate or copy material from Business Market 24
- Redistribute content from Business Market 24
This Agreement shall begin on the date hereof.
Parts of this website offer an opportunity for users to post and exchange opinions and information in certain areas of the website. Business Market 24 does not filter, edit, publish or review Comments prior to their presence on the website. Comments do not reflect the views and opinions of Business Market 24,its agents and/or affiliates. Comments reflect the views and opinions of the person who post their views and opinions. To the extent permitted by applicable laws, Business Market 24 shall not be liable for the Comments or for any liability, damages or expenses caused and/or suffered as a result of any use of and/or posting of and/or appearance of the Comments on this website.
Business Market 24 reserves the right to monitor all Comments and to remove any Comments which can be considered inappropriate, offensive or causes breach of these Terms and Conditions.
You warrant and represent that:
- You are entitled to post the Comments on our website and have all necessary licenses and consents to do so;
- The Comments do not invade any intellectual property right, including without limitation copyright, patent or trademark of any third party;
- The Comments do not contain any defamatory, libelous, offensive, indecent or otherwise unlawful material which is an invasion of privacy
- The Comments will not be used to solicit or promote business or custom or present commercial activities or unlawful activity.
You hereby grant Business Market 24 a non-exclusive license to use, reproduce, edit and authorize others to use, reproduce and edit any of your Comments in any and all forms, formats or media.
Hyperlinking to our Content
The following organizations may link to our Website without prior written approval:
- Government agencies;
- Search engines;
- News organizations;
- Online directory distributors may link to our Website in the same manner as they hyperlink to the Websites of other listed businesses; and
- System wide Accredited Businesses except soliciting non-profit organizations, charity shopping malls, and charity fundraising groups which may not hyperlink to our Web site.
These organizations may link to our home page, to publications or to other Website information so long as the link: (a) is not in any way deceptive; (b) does not falsely imply sponsorship, endorsement or approval of the linking party and its products and/or services; and (c) fits within the context of the linking party’s site.
We may consider and approve other link requests from the following types of organizations:
- commonly-known consumer and/or business information sources;
- dot.com community sites;
- associations or other groups representing charities;
- online directory distributors;
- internet portals;
- accounting, law and consulting firms; and
- educational institutions and trade associations.
We will approve link requests from these organizations if we decide that: (a) the link would not make us look unfavorably to ourselves or to our accredited businesses; (b) the organization does not have any negative records with us; (c) the benefit to us from the visibility of the hyperlink compensates the absence of Business Market 24; and (d) the link is in the context of general resource information.
These organizations may link to our home page so long as the link: (a) is not in any way deceptive; (b) does not falsely imply sponsorship, endorsement or approval of the linking party and its products or services; and (c) fits within the context of the linking party’s site.
If you are one of the organizations listed in paragraph 2 above and are interested in linking to our website, you must inform us by sending an e-mail to Business Market 24. Please include your name, your organization name, contact information as well as the URL of your site, a list of any URLs from which you intend to link to our Website, and a list of the URLs on our site to which you would like to link. Wait 2-3 weeks for a response.
Approved organizations may hyperlink to our Website as follows:
- By use of our corporate name; or
- By use of the uniform resource locator being linked to; or
- By use of any other description of our Website being linked to that makes sense within the context and format of content on the linking party’s site.
No use of Business Market 24’s logo or other artwork will be allowed for linking absent a trademark license agreement.
Without prior approval and written permission, you may not create frames around our Webpages that alter in any way the visual presentation or appearance of our Website.
We shall not be hold responsible for any content that appears on your Website. You agree to protect and defend us against all claims that is rising on your Website. No link(s) should appear on any Website that may be interpreted as libelous, obscene or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights.
Reservation of Rights
We reserve the right to request that you remove all links or any particular link to our Website. You approve to immediately remove all links to our Website upon request. We also reserve the right to amen these terms and conditions and it’s linking policy at any time. By continuously linking to our Website, you agree to be bound to and follow these linking terms and conditions.
Removal of links from our website
If you find any link on our Website that is offensive for any reason, you are free to contact and inform us any moment. We will consider requests to remove links but we are not obligated to or so or to respond to you directly.
We do not ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we promise to ensure that the website remains available or that the material on the website is kept up to date.
To the maximum extent permitted by applicable law, we exclude all representations, warranties and conditions relating to our website and the use of this website. Nothing in this disclaimer will:
- limit or exclude our or your liability for death or personal injury;
- limit or exclude our or your liability for fraud or fraudulent misrepresentation;
- limit any of our or your liabilities in any way that is not permitted under applicable law; or
- exclude any of our or your liabilities that may not be excluded under applicable law.
The limitations and prohibitions of liability set in this Section and elsewhere in this disclaimer: (a) are subject to the preceding paragraph; and (b) govern all liabilities arising under the disclaimer, including liabilities arising in contract, in tort and for breach of statutory duty.
As long as the website and the information and services on the website are provided free of charge, we will not be liable for any loss or damage of any nature.
- In this Agreement, clause headings are for convenience and shall not be used in its interpretation, and unless the context clearly indicates a contrary intention:
- an expression which denotes:
- the any gender includes the other genders;
- a natural singular includes the plural and vice versa;
- the following expression shall be bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
- “AFSA” means the Arbitration Foundation of Southern Africa (or its successor in title);
- “Agreement” means this User services agreement together with its annexures, as amended from time to time;
- “API” means application programming interface;
- “Applicable Laws” means in relation to a Party:
- all and any statutes and subordinate legislation and common law; and
- regulations; and
- ordinances and by-laws; and
- Rules, directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, the Payment System Management Body, the SARB, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation and any replacement or amendment thereof; and other similar provisions, from time to time, compliance with which is mandatory for that Party;+
- “Business Day” means any day or other than a Saturday, Sunday, or official public holiday in South Africa;
- “Companies Act” means the Companies Act 71 of 2008;
- “Confidential Information” means in relation to a Party any information of a confidential and/or commercially sensitive nature, howsoever obtained or received and whether or not marked confidential, including any technical, commercial, financial or scientific information, know how, trade secrets, processes, business information, and/or any other information or material of whatever description or nature proprietary to such Party, whether in written, oral, magnetic, or machine readable or other format;
- “User” means the Person who makes use of the Platform;
- “User Information” means Personal Information associated with a User;
- “User Terms and Conditions” means the terms and conditions which govern the relationship between the User and businessmarket24;
- “Fees” means the fees as set out in Schedule 2;
- “Force Majeure” means any event or circumstance whatsoever which is not within the reasonable control of the affected Party including (without limitation) casus fortuitus, strikes, thefts, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not), or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority and any court order;
- any reference to any Applicable Law shall be a reference to that Applicable Law as at the Signature Date, and as amended or substituted from time to time;
- any reference to a statute shall include all regulations issued under that statute, as amended, and substituted from time to time;
- if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
- where any term is defined within a particular clause other than clause 1.2, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement;
- where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day;
- any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be;
- if figures are referred to in numerals and words, the words shall prevail in the event of any conflict between the two;
- the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s;
- the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s; and
- the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provides 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.
- Businessmarket24 has agreed to provide Payment Services to Users in accordance with the User Terms and Conditions.
- The User has agreed to sell the Goods to the User in accordance with the User’s terms and conditions of sale.
- Businessmarket24 has agreed to guarantee the amounts payable by the User to the User for the sale of the Goods if the User makes use of the Pay-Later Service.
- The User has agreed to pay the Fees in accordance with the terms and conditions set out in this Agreement.
- Businessmarket24 will provide certain services to the User as an aggregator in terms of an Aggregator Agreement entered into with a bank.
- This registration commence on the effective date and continue for a period of 12 months at no cost.
- Notwithstanding any other provision of this Agreement:
- Businessmarket24 may terminate the Agreement at its convenience for any reason and without liability, by giving not less than 1 (one) months prior written notice to the User; and
- the User may terminate the Agreement at its convenience for any reason and without liability, by giving not less than 1 (one) months prior written notice to Businessmarket24.
- NATURE OF RELATIONSHIP
- Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture or the like between the Parties nor to constitute one Party the agent of the other for any purpose and no Party shall be liable for the debts or obligations of the other Party, howsoever incurred. 11
- No Party shall by reason of the actions of the other Party incur any personal liability as a partner to any third party and no Party shall be entitled to authorise, to represent or hold out to any third party that the relationship between the Parties is that of a partnership, joint venture or the like as aforesaid.
- WARRANTIES AND REPRESENTATIONS
- The User warrants and represents that
- it has full capacity and authority to enter into and perform its obligations under this Agreement;
- this Agreement is executed by a duly authorised representative of that Party;
- there are no actions, suits, proceedings or regulatory investigations pending, or to that Party’s knowledge, threatened against or affecting that Party before any court or administrative body or arbitration tribunal that might affect the ability of that Party to meet and carry out its obligations under this Agreement;
- it has the necessary skills and resources to comply with the obligations assumed by it in terms of this Agreement;
- the conclusion and/or compliance by that Party of its obligations hereunder shall not breach any Applicable Law or agreement binding on it;
- all information supplied to the other Party is true, accurate and complete in all respects; and
- it will not do anything, or engage in any activity, which is likely to adversely affect or damage the other Party’s good name and/or reputation.
- The User represents, warrants and undertakes on an on-going basis that in the performance of its obligations under this Agreement that it:
- act with due skill and care;
- to the extent required to perform its obligations under this Agreement, comply with all Applicable Laws, and to the extent applicable, each Party has obtained all the Approvals and authorisations required of it in terms of any Applicable Laws, and will be able to provide proof of such compliance, approval or authorisation, if required;
- not infringe the Intellectual Property of the other Party or any third party; and
- and shall not
- make any misrepresentation in connection with any Goods, or any Listing which may bind Businessmarket24;
- make any warranty or representation to any third party which may bind Businessmarket24;
- engage in any conduct which is false, misleading or deceptive in relation to the Goods supplied by the User, Businessmarket24 products or services or in any other dealings with the User;
- use the Services to give a User cash; and
- use the Services to pay for Goods where the Listing is not a bona fide Listing.
- The User warrants, specifically in relation to the Listing Data, that:
- all information provided is true and correct, and is not misleading in any material respect;
- any Listing and accompanying Listing Data is valid;
- the User has complied with the requirements of the Agreement applicable to processing Listings and Services;
- the User is not aware of any facts which would render any of the Services or any Listing invalid; and
- the Listing represented by the Listing Data is not subject to any dispute, set-off or counter claim.
- OBLIGATIONS OF THE PARTIES
- Each Party shall
- at all times in the execution of its obligations in terms of this Agreement, fulfil their obligations in terms hereof with the necessary diligence and without any damage to the reputation, standing or goodwill of the other Party;
- at all times act in a professional, responsible manner and maintain acceptable standards of support and protect the good name and integrity of the other Party;
- conduct their affairs and their relationship with one another and in the utmost good faith and integrity in such manner as to minimise any risk of loss; and
- co-operate with the other Party in order to limit that Party’s exposure to fraud and non-compliance with Applicable Laws.
- Neither Party shall make or issue any formal or informal announcement, advertisement or statement to the press in connection with this Agreement or otherwise disclose the existence of this Agreement or the subject matter thereof to any other Person, without the prior written consent of the other Party (which approval shall not be unreasonably delayed or withheld).
- USER OBLIGATIONS
- The User shall
- verify all Listing details and Listing reports on the Businessmarket24 User Platform and notify Businessmarket24 of any alleged discrepancies immediately, but no later than 30 (thirty) days from the date of the listing, when the User becomes aware of the discrepancies;
- perform all obligations to a User and Businessmarket24 in connection with a Listing;
- not contract with any third party in order to perform its obligations in terms of a Listing without first acquiring the written consent of Businessmarket24 to do so;
- carry all risk and liability for the conduct of any third party with which it may contract in order to perform its obligations in terms of a Listing, including delivery, under the Agreement;
- stop accepting Listings by way of the Businessmarket24 Platform immediately if Businessmarket24 gives the User a notice to do so;
- be responsible for and comply with Applicable Laws in relation to all User claims and enquiries in relation to the Goods;
- provide reasonable assistance as requested by Businessmarket24 with respect to the integration of the Businessmarket24 Platform;
- in accordance with clause 7.1.6 confirm its approval of the Businessmarket24 Advertising as soon as is practicable;
- The User acknowledges and shall ensure that Services shall be used by the User only and shall not be used by any other third party or on behalf of any third party without the prior written approval of Businessmarket24.
- The User will confirm before the Effective Date that it is registered for VAT (if applicable) and will provide its VAT registration number to Businessmarket24.
- The User shall immediately notify Businessmarket24 in writing if:
- there is a change in the contact details of the User, including e-mail address, contact number and/or Domicilium;
- circumstances arise which may have a material adverse effect on the User’s business, assets or financial condition, or the User’s ability to perform its obligations under this Agreement;
- the User sells, leases or transfers its business;
- the User materially changes the nature, scope or type of its business or product range;
- the User intends to cease carrying on business or goes into business rescue or liquidation; and/or
- there is a change of control in the User.
- Should the User notify Businessmarket24 in terms of clause 9.7 above, the User undertakes to take all such reasonable steps and complete and submit all such documents within 7 days of such a request from Businessmarket24.
- BUSINESSMARKET24 OBLIGATIONS
- Businessmarket24 shall –
- maintain adequate security measures appropriate for the protection of User’s and User’s personal information;
- be responsible for the security of Data that is handled on behalf of Users and Users;
- perform the Services in accordance with the Agreement and all Applicable Laws;
- provide the API and all reasonable assistance to the User to enable the Businessmarket24 Platform to be integrated with the User Site;
- provide the Businessmarket24 Advertising to the User for approval, which approval shall not to be unreasonably withheld.
- Businessmarket24 does not represent or warrant that the Services will be uninterrupted, error-free, without delay or without compromise of User’s security systems or that all errors will be corrected immediately.
- Businessmarket24 reserves the right to withhold one or more of the Services at any time by giving prior written notice to the User of at least 2 (two) days.
- The Fees payable by the User are set out in Schedule 2, and exclude VAT and all other taxes, duties, imposts or levies.
- Monthly Debit Fees (as defined in Schedule 2) shall be paid by the User to Businessmarket24 by way of a signed debit order.
- Save for the Monthly Debit Fees, Businessmarket24 will set off any Fees on the next Settlement amount payable to the User.
- The User hereby authorises Businessmarket24 to set off any Fees due by the User in terms of this Agreement against any Settlement due to the User.
- The User agrees to settle all Businessmarket24 invoices for charges that are not set off against the Settlement amounts within 7 (seven) days from the date of invoice.
- The User shall pay to Businessmarket24, in full and without set-off or counter claim or deduction of any tax:
- the amount of any sum owing to Businessmarket24 which Businessmarket24 is unable to set-off in terms of this Agreement;
- an amount equal to any Fees, costs, penalties or expenses Businessmarket24 must pay due to a Listing being an Invalid Listing or being charged back; and
- all penalties and costs incurred as a result of a security breach involving account information collected by the User or by a third party on behalf of the User, including all investigation costs as may be required.
- Businessmarket24 may amend existing Fees or charges, by giving the User not less than 30 (thirty) days’ written notice prior to any amendment taking effect, provided that any such amendment does not take effect during the first 12 (twelve) months from the Effective Date.
- Businessmarket24 may introduce new Fees or charges. If Businessmarket24 introduces new Fees or charges, it will give the User at least 30 (thirty) days’ written notice prior to the new Fee or charge taking effect. 12.9 The User may request a copy of the current Fees payable under this Agreement.
- The User will contribute online channels, such as e-mail and social media, where available at no cost.
- The User will ensure that all marketing activities are in line with POPIA requirements, in particular section 69 of POPIA.
- CONFIDENTIALITY AND NON-DISCLOSURE
- Each Party may in the execution of this Agreement come into possession of Confidential Information. Each Party agrees to treat all Confidential Information, as well as the existence and contents of this Agreement, as confidential and to use and divulge it only as far as is necessary for purposes of this Agreement.
- Each Party acknowledges that the other Party has a proprietary interest in the confidentiality of the Confidential Information being maintained.
- Except with the prior written consent of the other Party, neither Party will make any copy, reproduction, facsimile or duplicate of Confidential Information by any means or for any purpose whatsoever, other than to the extent necessary to provide the services or to fulfil the purpose for which the Confidential Information was disclosed or furnished.
- The obligations set out in this clause shall not apply to information which –
- at the time of its disclosure had already been published or was otherwise publicly available; or
- subsequent to its disclosure became (through no fault or failure of either of the Parties) part of the public domain; or
- at the time of its disclosure can be shown by a Party to have been in its possession prior to the disclosure thereof.
- The Parties shall not at any time during the term of this Agreement, release any statement to the press, or make any other public statement of any nature regarding the relationship or the subject matter of this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
- The provisions of this clause 17 shall endure irrespective of the termination of this Agreement.
- INTELLECTUAL PROPERTY
- Other than is provided for in this Agreement –
- all Intellectual Property belonging to either of the Parties shall remain the property of such Party and the other Party will not acquire any right, title or interest in and to such Intellectual Property in terms of this Agreement;
- each Party agrees that it shall not reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or any algorithms) from such Intellectual Property, except as specifically authorised in writing by the Party owning such property or as specifically provided in terms of this Agreement;
- neither Party shall in any manner alter, remove or affect the display of the respective Intellectual Property rights notices (and disclaimers) of the other Party and/or their vendors and licensors without the prior written approval of the other Party, and their vendors or licensors where applicable; and
- neither Party may use the other Party’s Intellectual Property, and specifically trade names, logo’s (“Trade Marks”) or any derivative or component thereof without the prior written approval of the other Party (“Trade Mark Authorisation”).
- Any Trade Mark Authorisation shall terminate upon the termination of this Agreement in which event all rights of a Party authorised to use the Trade Marks (“Licensed Party”) of the other Party (“Licensing Party”) shall terminate, the goodwill connected therewith shall remain the property of the Licensing Party in which event the Licensed Party shall immediately discontinue all use of the Trade Marks so licensed, or any of them, and any confusingly or deceptively similar imitation thereof and shall delete the licensed Trade Marks from all materials in relation to which they are or have been used.
- The Licensed Party acknowledges that the Trade Marks of the Licensing Party, all rights therein, and the goodwill associated therewith, are, and shall remain, the exclusive property of the Licensing Party and it shall take no action which will adversely affect the Licensing Party’s ownership thereof or the goodwill associated therewith and any and all goodwill arising from use of the Trade Marks of the Licensing Party’s Trade Marks shall inure to the benefit of Licensing Party. Nothing herein shall give the Licensed Party any proprietary interest in or to the Licensing Party’s Trade Marks, except the right to use such Trade Marks in accordance with this Agreement, and the Licensed Party will not contest the Licensing Party’s title in and to the Trade Marks so licensed.
- Each Party shall be responsible, at its cost, for licensing intellectual property rights owned or controlled by any Person other than the Party concerned that may be included within the Intellectual Property of that Party from time to time (“Third Party Technology”) to the extent that such Third Party Technology is used in respect of the Intellectual Property of such Party. All licences granted hereunder shall be subject to existing agreements entered into by the Parties for such Third Party Technology.
- PERSONAL INFORMATION
- The Parties acknowledge that stringent compliance with all Applicable Laws related to the protection of privacy and the Processing of Personal Information including POPIA is required and accordingly agree that:
- they will ensure that the transfer of any Personal Information of Users in terms of this Agreement complies with chapter 9 of POPIA; and
- they will at all times comply with the provisions of POPIA, including all applicable data protection and privacy laws.
- The Parties will immediately notify the other where there are reasonable grounds to believe that Personal Information processed or hosted by either of them has been accessed or acquired by any unauthorised Person.
- The provisions of this clause 15 shall endure irrespective of the termination of this Agreement.
- FORCE MAJEURE
- Should a Party (“Affected Party”) be prevented from fulfilling any of its obligations in terms of this Agreement as a result of a Force Majeure event, then:
- those obligations shall be deemed to have been suspended to the extent that and for so long as the Affected Party is so prevented from fulfilling them and the corresponding obligations of the other Party (“Unaffected Party”) shall be suspended to the corresponding extent;
- the Affected Party shall promptly notify the Unaffected Party in writing of the Force Majeure event and such notice shall include an estimation (given reasonably) of the approximate period for which the suspension in terms of 16.1.1 will endure. Such estimation will not be binding on the Affected Party;
- the Affected Party will be excused from further performance or observance of its obligation(s) so affected for so long as the circumstances giving rise to the Force Majeure event prevail and the Affected Party continues to use its commercially viable efforts to recommence performance or observance whenever and to whatever extent possible without delay; and
- the Affected Party shall reasonably cooperate with the other Party in implementing such contingency measures as that other Party may reasonably require.
- Neither Party may recover from the other any expense related to any circumstance of Force Majeure or the recommencement of its performance following such circumstance of Force Majeure.
- Where a Party is the Affected Party it shall not be required to recover, and the other Party shall not be required to pay, any fees or charges to the extent that such fees or charges relate to Services or obligations which are not performed by Affected Party.
- Subject to the provisions of clause 16.1, the Affected Party will not be liable to the other Party for any default or delay in the performance of its obligations under this Agreement if and to the extent that such default or delay is caused by Force Majeure provided however, that the Affected Party is without fault in causing such default or delay, and such default or delay could not have been prevented by the Affected Party through the use of commercially viable alternative sources, workaround plans or other means.
- Should an event of Force Majeure preventing the performance by a Party of its obligations under this Agreement continue for more that 30 (thirty) days after the date of the notice referred to in 16.1.2, then either Party shall be entitled (but not obliged) to terminate this Agreement by written notice to the other Party.
- DISPUTE RESOLUTION
- If any dispute arises out of or in connection with this Agreement, or related thereto, whether directly or indirectly (including with respect to the formation, breach, termination or invalidity hereof) (a “Dispute”), the Parties must refer the Dispute for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of arbitration. The reference to negotiation and mediation is a precondition to the Parties having the Dispute resolved by arbitration.
- A Dispute within the meaning of this clause 17 exists once one Party notifies the other in writing of the nature of the Dispute and requires the resolution of the Dispute in terms of this clause.
- Within 10 (ten) Business Days following such notification, the Parties shall seek an amicable resolution to such Dispute by referring such Dispute to designated representatives of each of the Parties for their negotiation and resolution of the Dispute. The representatives shall be authorised to resolve the Dispute.
- In the event of the negotiation between the designated representatives not resulting in an agreement signed by the Parties resolving the Dispute within 15 (fifteen) Business Days thereafter, the Parties must refer the Dispute for resolution by way of mediation in accordance with the then current rules of AFSA.
- In the event of the mediation envisaged in clause 17.4 failing in terms of the rules of AFSA, the matter must, within 15 (fifteen) Business Days thereafter, be referred to and finally resolved by arbitration as envisaged in the clauses below.
- The periods for negotiation or mediation may be shortened or lengthened by written agreement between the Parties.
- Each Party agrees that the arbitration will be held as an expedited arbitration in Sandton in accordance with the then current rules for expedited arbitration of AFSA by 1 (one) arbitrator appointed by agreement between the Parties, including any appeal against the arbitrator’s decision. If the Parties cannot agree on the arbitrator or appeal arbitrators within a period of 10 (ten) Business Days after the referral of the Dispute to arbitration, the arbitrator and appeal arbitrators shall be appointed by the Secretariat of AFSA, who shall administer and manage the arbitration proceedings.
- The provisions of this clause 17 shall not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict or mandamus pending finalization of this Dispute resolution process for which the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.
- The arbitration and all matters related thereto are strictly confidential and all records constitute Confidential Information. The arbitration will be held with only the Parties to (or Persons necessary to progress and conclude), the arbitration and their representatives present thereat.
- This clause is a separate, divisible agreement from the rest of this Agreement and shall remain in effect even if the Agreement terminates, is nullified or cancelled for whatsoever reason or cause.
- INDEMNITY AND LIMITATION OF LIABILITY
- Subject to clauses 18.2 and 18.3, each Party indemnifies the other Party from and against any loss, damage, costs, expenses and liabilities which such other Party may suffer or incur as a result of or in connections with any claim by any third party arising out of the actions or omissions of the first-mentioned Party, save to the extent that the legal action or claim arises out of the fraud or gross negligence of the Party so indemnified.
- Without limiting the generality of the aforegoing, a Party shall not be responsible to the other Party for any loss or consequential loss arising from any circumstances beyond the reasonable control of such Party, including any failure or malfunction in the Businessmarket24 Platform, any delay or error in an electronic communication (including a communication via cellular telephones), failure or malfunction in any supporting or shared networks. The use of any electronic means of communication is entirely at a Party’s risk and the other Party does not warrant that such communication shall meet any particular criteria of accuracy, completeness or reliability of information, performance or quality. +
- Notwithstanding anything to the contrary in this Agreement, Businessmarket24’s total cumulative liability under or in any way connected with this Agreement or the provision of the Services is limited to the amount of the total Fees paid by User to Businessmarket24 in the 1 (one) month period preceding the event giving rise to the claim.
- BREACH AND TERMINATION
- A Party will be in default of this Agreement if:
- that Party (“Defaulting Party”) breaches any material provision of this Agreement and that breach is incapable of being remedied;
- the Defaulting Party breaches any material provision of this Agreement and fails to remedy such breach within 14 (fourteen) days of receiving written notice from the other Party requiring such remedy (“Aggrieved Party”);
- any representation or warranty made in connection with this Agreement or any other document supplied by that Party is materially incorrect or false;
- that Party:
- is wound up, liquidated, dissolved or deregistered in any event whether provisionally or finally and whether voluntarily or compulsory, or passes a resolution providing for any such event;
- is deemed to be unable to pay its debts;
- resolves that it voluntarily begin business rescue proceedings or has any business rescue proceedings commenced against it, as contemplated in section 132(1) of the Companies Act 71 of 2008;
- has a judgment of a competent court against such Party for the attachment of assets or for payment of any amount is not satisfied for more than 7 (seven) days after the date on which it is issued; or
- compromises or attempts to compromise with the Party’s creditors generally or defer payment of debts owing by the Party to the Party’s creditors.
- The Aggrieved Party shall be entitled, in the case of default by the Defaulting Party, without prejudice to its other rights in terms of this Agreement or at law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith, in either case with or without claiming and recovering damages from the Defaulting Party.
- The Defaulting Party will be liable for all legal costs, as may be permissible in law, in recovering any amount that the Defaulting Party owes to the Aggrieved Party.
- Businessmarket24 shall, in its sole discretion, be entitled to suspend and/or terminate this Agreement immediately if the User is (i) identified as generating excessive Chargebacks or (ii) suspected of fraudulent activity or of violating any Applicable Law or (iii) failing to timeously remediate User complaints related to Listings at the User to the satisfaction of the User.
- If this Agreement is cancelled or terminated for whatever reason, it shall not affect the obligations of either Party that arose prior to such cancellation or termination, or obligations which survive this Agreement being cancelled or terminated.
- A certificate signed by a director, company secretary, credit manager or internal accountant of the Aggrieved Party, specifying the amount owing by the Defaulting Party and further stating that such amount is due, owing and payable by the Defaulting Party, shall be sufficient (prima facie) proof of the amount thereof and of the fact that such amount is so due, owing and payable for the purpose of obtaining provisional sentence or other judgment against the Defaulting Party in any competent court. It shall not be necessary to prove the appointment of the Person signing any such certificate.
- The Parties choose as their respective domicilium citandi et executandi (“Domicilium”) for all purposes relating to this agreement, including the giving of any notice, the payment of any sum, the serving of any process, as follows:
- Businessmarket24: Physical Address: 126 4th Street, Parkmore, 2196 Postal Address: 126 4th Street, Parkmore, 2196 Email: paul@Businessmarket24.co.za
- the User: Physical Address: Postal Address: Email:
- Either Party shall be entitled from time to time, by giving written notice to the other, to vary its physical Domicilium to any other physical address (not being a post office box or poste restante) and to vary its postal or email Domicilium to any other postal address or email address.
- Unless the contrary is proved, all notices given in terms of this agreement shall be in writing and any notice given by any Party to the other (“the addressee”) which:
- is delivered by hand between the hours of 09:00 and 17:00 on any Business Day to the addressee’s physical Domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery;
- if sent by prepaid registered post to its postal address for the time being, shall be deemed to have been received by the addressee on the 7th (seventh) Business day after the date of posting thereof; and
- if transmitted by email is deemed to have been received by the addressee on the day following the date of despatch.
- This clause 20 shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause 20.
- Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee.
- This Agreement constitutes the sole record of the agreement between the Parties in relation to the subject matter hereof. Neither Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like 39 Bodmin Str Alberton 39 Bodmin Str Alberton email@example.com not recorded herein. This Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the Parties in respect of the subject matter hereof.
- If any provision of the Agreement is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of the Agreement will not be affected thereby.
- No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties.
- No waiver, indulgence or extension of time which either Party (“Grantor”) may grant to the other, nor any delay or failure by the Grantor to enforce, whether completely or partially, any of its rights, shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the Grantor in terms hereof, save in the event and to the extent that the Grantor has signed a written document expressly waiving or limiting such right.
- No consent or approval in terms of or in connection with this Agreement shall be valid or effective unless in writing and signed by or on behalf of the Party giving such consent or approval.
- For the purposes of this Agreement
- no data message, as defined in the Electronic Communications and Listings Act No 25 of 2002 (“ECTA”), other than an email or facsimile, shall constitute writing;
- no electronic signature or advanced electronic signature, as defined in ECTA, shall constitute a signature, except for the purposes of varying any date referred to in this Agreement or giving any consent or approval in terms of this Agreement.
- Without prejudice to any other provision of this Agreement, any successor in title, including any executor, heir, liquidator, business rescue practitioner, curator or trustee, of either Party shall be bound by this Agreement.
- The signature by either Party of a counterpart of this Agreement shall be as effective as if that Party had signed the same document as the other Party.
- Each Party shall be liable to pay their own legal costs related to the negotiations, preparation and drafting of this Agreement. 21.5 Save as expressly provided in this Agreement: Businessmarket24 shall be entitled to cede, delegate, encumber, assign or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, this Agreement to any third party; and the User shall not be entitled to cede, delegate, encumber, assign or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, this Agreement to any third party without the prior written consent of Businessmarket24.