TERMS & CONDITIONS
1 INTRODUCTION 1.1 The services described in these terms and conditions (this “Agreement”) are made available by Buylocalonline Online, a company incorporated in South Africa with its registered address at Witteklip Farm, Protem, Western Cape, South Africa (“Buylocalonline”, “we”, “us” and “our”).
1.2 This Agreement is binding and enforceable against every person that registers as a seller as set out in clause 3 below (each a “Seller”, “you” or “your”). By logging in to the seller portal on www.Buylocalonline.co.za, you acknowledge that you have read and agree to be bound by this Agreement, which shall govern your use of the services described herein. You must not use the seller portal if you do not agree to the terms contained in this Agreement.
1.3 Buylocalonline provides a platform for Sellers and customers on www.Buylocalonline.co.za to complete transactions for the Seller. Buylocalonline is not a party to the actual sale transaction between the Seller and a customer.
2.1 “Affiliate”, with respect to any entity, means any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity;
2.2 “Business Day” means any day other than a Saturday, Sunday or public holiday in South Africa;
2.3 “Customer” means any customer or potential customer on the Website;
2.4 “Fulfilment Services” means the fulfilment services relating to the Products;
2.5 “including” or “includes” means “including without limitation” or “includes without limitation”;
2.6 “Listing Information”, in relation to a Product, means the then current Purchase Price and stock-on-hand;
In addition to the definitions contained above, in this Agreement, unless the context indicates otherwise:
2.7 “Loss” means any and all loss, expense or damage that a person (natural or juristic) may suffer or incur (including any third party claims which may be made against it), of whatsoever nature including direct, indirect, consequential or special damages;
2.8 “Order Information” means the order information relating to any Transactions on the Website, including the date of the order, order ID number, Product title, SKU number, quantity sold, Customer name and sales price;
2.9 “Parties” means Buylocalonline and the Seller, and “Party” means any one of them, as the context requires;
2.10 “Pricing Schedule” means the pricing schedule for the Services published on the Website and/or the Seller Portal from time to time;
2.11 “Product” means any product that is made available for listing and offered for sale on the Website and/or is sold by the Seller making use of the Services;
2.12 “Product Information”, with respect to each Product, means the following:
2.12.3 SKU and such other identifying information as Buylocalonline may reasonably request;
2.12.4 categorisation within each Buylocalonline product category and browse structure, as prescribed by Buylocalonline from time to time;
2.12.5 digitised image that accurately depicts only the Product, complies with all Buylocalonline image guidelines;
2.12.6 any text, disclaimers, warnings, notices, labels or other content required by applicable law to be displayed in connection with the offer, merchandising, advertising or sale of a Product;
2.12.7 indication of whether or not the Product is a “grey good” or parallel import;
2.12.10 technical specifications;
2.12.11 any other information reasonably requested by us.
2.13 “Purchase Price” means the total amount payable or paid by a Customer for a Product, including any taxes thereon, but excluding delivery charges;
2.14 “Refund Price”, means the Purchase Price of a Product less the Success Fee that would be applicable to the Product if it had been sold to a customer under a Transaction;
2.15 “Return Policy” means the return policy published on the Website from time to time;
2.16 “Returns Services” means the facilitation of returns and provision of Customer services by Buylocalonline relating to the Products;
2.17 “Sales Proceeds”, for a particular period, means the gross Purchase Prices from all of your Transactions during that period;
2.18 “Sales Services” means the services provided by Buylocalonline which enable the Seller to list and offer Products for sale directly on the Website, including the facilitation of payment by Customers;
2.19 “Seller Bank Account” means a South African bank account in the Seller’s name;
2.20 “Seller Portal” means the online portal and tools made available by Buylocalonline to you;
2.21 “Seller Website” means any website owned or operated by the Seller on which the Seller offers for sale and/or sells its Products;
2.22 “Services” means the Sales Services Fulfilment Services and Returns Services, and “Service” means any one of them as the context requires;
2.23 “Success Fee” is as defined in clause 9.2.1;
2.24 “Taxes” means any and all taxes, duties, levies, fees or charges assessed, incurred or required to be collected or paid for any reason (whether by the Seller, Buylocalonline or any of Buylocalonline’s Affiliates) in connection with any offer or sale of Products by the Seller in connection with the Services, or otherwise in connection with any act or omission of the Seller, your Affiliates or your respective employees, agents, contractors or representatives;
2.25 “Transaction” means an order to purchase any Product placed by a Customer on the Website, for which the Customer has paid;
2.26 “Unsuitable Product” means a Product: (a) that (itself or its packaging) is defective, damaged or not in compliance with applicable laws; (b) of which the Product Information is inaccurate or incomplete; (c) that Buylocalonline knows or has a reasonable suspicion to be a counterfeit good;or; (d) that Buylocalonline deems in its sole discretion to be unsuitable or inappropriate for sale or delivery;
2.27 “Website” means the website operated by Buylocalonline having the URL www.Buylocalonline.co.za as well as related ‘Buylocalonline’ mobi-sites and software applications, and includes any promotional sites that we may make available or use from time to time and on which certain of the Products may be listed for sale; and
2.28 “written” or “in writing” includes electronic mail, and any electronic message sent by way of the Seller Portal.
Registration is complete when the Seller logs in to the Seller Portal for the first time, with Buylocalonline’s approval.
3.1 The registration process for the Services must be initiated directly by the Seller on the Seller Portal, or indirectly at the Seller’s written request to Buylocalonline. Buylocalonline is entitled to decide in its sole discretion whether or not to allow a potential seller to register for the Services.
3.2 If the Seller is a juristic person, any natural person who logs into the Seller Portal for the first time warrants that he/she has the authority to bind the Seller to this Agreement. If the Seller is a natural person, the Seller must be 18 (eighteen) years of age or older and of full legal capacity.
3.3 As part of the application, in order to comply with the Electronic Communications and Transactions Act 2002 (“ECTA”), you must provide us with your legal name, if you are a juristic person (or your real name, if you are a natural person), your trading name, registration number (or identity number), main business, physical address for legal purposes, official phone number and e-mail address. You must also provide all other documentation and information reasonably requested by Buylocalonline for vetting purposes. You hereby authorise us to verify all information that you provide to us, and you undertake to provide written confirmation of such authorisation on written request by Buylocalonline.
3.4 By registering for or using the Services, you authorise Buylocalonline to perform the Services as set out herein (which may include Buylocalonline acting as your agent). As a Seller, you use the Website, the Seller Portal and the Services at your own risk. You are solely responsible for maintaining the security of your login credentials (including your password) to your Seller account on the Seller Portal (your “Buylocalonline Account”). You shall be responsible for, and be bound by, any activity on your Buylocalonline Account (whether authorised by you or not) which is done using your login credentials.
3.5 Where you register multiple Buylocalonline Accounts (whether or not under different trading names) for the same Seller (whether a juristic person or natural person), such accounts shall be treated as one Buylocalonline Account for the purposes of this Agreement.
4 TERM AND TERMINATION
4.1 This Agreement shall commence on the date on which registration for the Services is complete and shall continue indefinitely until terminated by us or the Seller as provided in this Agreement (such period of duration being the “Term”). In its sole discretion, Buylocalonline may terminate or suspend any Service, or this Agreement as a whole, immediately on written notice to the Seller for any reason at any time. Likewise, in its sole discretion, the Seller may terminate this Agreement as a whole, immediately on written notice to Buylocalonline for any reason at any time.
4.2 Following termination of this Agreement:
4.2.1 Buylocalonline shall remit the balance (if positive) on your Buylocalonline Account;
4.2.2 we may in our sole discretion delay the remittance of any positive balance on your Buylocalonline Account for a period of up to 30 days following the date of termination;
4.2.3 rights and obligations that accrued prior to termination (including those relating to outstanding or unfulfilled orders), those relating to dispute resolution, confidentiality and intellectual property at the date of termination, shall survive termination of this Agreement.
4.3 Clauses 4.2.1 to 4.2.3 shall also apply in the case of suspension of the Agreement (with the necessary changes being made).
5.1 Buylocalonline may, in its sole discretion change this Agreement at any time. Changes shall be notified to Sellers via email or posted on the Seller Portal (if no effective date is stated, they will be effective immediately). It is your responsibility to regularly check the Seller Portal and the Website and make sure that you are satisfied with any changes. Should you not be satisfied, you must no longer use the Seller Portal or the Services, and should terminate this Agreement as set out in clause 4.1.
5.2 Any such change will only apply to your use of the Seller Portal and the Services after the effective date of the change. If you use the Seller Portal or any of the Services after such changes have been notified to you or posted on the Seller Portal, you will be deemed to have accepted such changes.
6 LISTING AND SALE
6.1 Product Information and Listing Information
6.1.1 The Seller shall provide, in the format we require, accurate and complete Product Information and Listing Information for each Product and shall promptly update such information on the Seller Portal as necessary, to ensure that it at all times remains accurate and complete. By providing Product Information, you grant Buylocalonline a perpetual, royalty-free, worldwide, transferable licence to use and share such Product Information and Listing Information as we deem fit. You are free to determine which of your products you wish to list for sale on the Website.
6.1.2 You may not provide Product Information or Listing Information for any Unsuitable Products, or otherwise seek to list such Products for sale on the Website, and Buylocalonline is entitled at any time to suspend or remove the listing of any Unsuitable Products from the Website. A list of Unsuitable Products may be included from time to time on the Seller Portal, but Buylocalonline is entitled at any time without prior notice to You to declare any other item as an Unsuitable Product, whether or not it also amends such list.
6.1.3 You may not provide any URL Marks for use on the Website. “URL Marks” means any trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, .co.za, .edu, .net, .org) or any variation thereof (e.g. dot com, dotcom, net, or com).
6.2 Sales Services: After the Seller has provided the Product Information and Listing Information relating to a particular Product in the format required by Buylocalonline (and provided that the relevant Product is not an Unsuitable Product), we shall make that Product available for sale on the Website until (a), the Seller notifies us that the Product is no longer available or (b) we determine that the Product is an Unsuitable Product. We may promote the Products as determined by us in our sole discretion. We shall provide Order Information to the Seller for each Transaction. We shall also collect all Sales Proceeds as the Seller’s payment-processing agent for all Transactions (and shall have exclusive rights to do so), and shall remit them to you in accordance with this Agreement. Buylocalonline is entitled at any time to cancel a Transaction relating to an Unsuitable Product.
6.3 Seller Portal: The Seller may use the Seller Portal to vary and set its Listing Information, to create and update a catalogue of its Products, respond to Product-related queries from Buylocalonline, respond to requests for invoices from Customers and update the Seller’s name and logo appearing on the Website. The Seller undertakes to apply itself to understanding the proper use and function of the Seller Portal, and accordingly undertakes to read and apply the contents of the FAQ and help pages on the Website.
6.4 The Seller shall:
6.4.1 not send any emails to Customers. Where you are required to liaise with a Customer (directly or indirectly) in relation to a Product complaint or query, you shall provide the relevant feedback to the Customer within a reasonable time period. Where Buylocalonline provides any Customer information (such as name, address, telephone number or email address) to the Seller, the Seller shall only use such information for the exact purpose for which it was provided.
6.5 Errors: Where a Product on the Website reflects (a) any incorrect Product Information; or (b) the incorrect Purchase Price, and any Customer has ordered such a Product on the basis of such information:
6.5.1 the Seller shall, if so required by Buylocalonline (notwithstanding Buylocalonline’s online terms and conditions or any representations made by its agents), honour such Transaction (in the case of (a), where reasonably possible), and shall receive the Purchase Price reflected on the Website at the time of the Customer order, as full compensation for such Transaction;
6.5.2 the Seller shall honour the Transaction (in the case of (a), where reasonably possible) (i) by producing the relevant Product within the stated lead-time;
6.5.3 Buylocalonline shall not be liable for any Loss suffered or incurred by the Seller as a result thereof – whether the error arose due to the Seller’s fault, a delay in Buylocalonline updating any information on the Website at the request of the Seller, or any other cause.
7.1 The Seller shall manage its Order Information at least once each Business Day, by retrieving and processing any orders. If the Seller is unable to manage its Order Information on this basis, the Seller must disable its listings on the Website (and notify Buylocalonline thereof), until such time as it is able to manage its Order Information again, when it shall notify Buylocalonline again.
7.2 The Seller shall not cancel any Transaction, except where it does not have stock (in which case, the Seller shall cancel the Transaction as soon as possible after becoming aware that it does not have stock).
7.3 Buylocalonline shall have 5 Business Days from the date of delivery to notify the Seller in writing of any missing, incorrectly delivered, or obviously externally damaged Products and the Seller shall arrange for collection of any such over-delivered or damaged Products.
7.4 Delivery to Customer
7.4.1 For all Transactions, we shall arrange a suitable courier for delivery of any Products. These amounts are handled solely between the Customer and us, and will not be remitted nor charged to the Seller.
8 RETURNS, DISPOSALS AND RECALLS
8.1 Product Warranty: The Seller warrants, in respect of each Product to be listed on the Website, that–
8.1.1 such Product, its packaging, the Product Information and other related content provided by the Seller, complies with all applicable laws from time to time including those relating to the manufacture, advertising, sale, distribution, importation and labelling of the Product;
8.1.2 such Product is not counterfeit, does not contain or bear any false or misleading advertisements or claims that are prohibited under any applicable law;
8.1.3 such Product shall be of the nature, quality, quantity, substance, description and degree reflected in any Product Information provided by the Seller;
8.1.4 such Product shall be free of any defects, fit for the purpose for which it is sold, of appropriate standard and quality; and
8.1.5 such Product shall (if applicable) not expire before 6 months has passed after Buylocalonline’s delivery thereof to the Customer.
8.2 Loss: The Seller hereby indemnifies Buylocalonline and its Affiliates against any Loss suffered or incurred by any of them, arising from or in relation to a breach by the Seller of any of the warranties contained in clause 8.1. Further, the Seller acknowledges that it shall be liable for any Loss (for the avoidance of doubt, which includes damage to property, injury, illness or death of any person, and economic loss that results from any of the aforesaid) suffered or incurred by a Customer, arising from or in relation to a breach by the Seller of any of the warranties contained in clause 8.1.
8.3 Quality Control: You shall at all times be familiar with and comply with all applicable laws relating to the types of Products that you list on the Website, and you shall ensure that you operate suitable quality control procedures in relation to such Products. Where the Seller is in breach of any of its obligations (under this Agreement or otherwise) owed to a Customer or owed to Buylocalonline which directly affect a Customer in relation to a Product, Buylocalonline is entitled in its reasonable discretion to compensate the Customer and to deduct the Purchase Price of the relevant Product from the Seller’s Buylocalonline Account.
8.4 Return Policy:
8.4.1. The Customer has 5 days from delivery of the product to inform Buylocalonline that the product is faulty, wrongly described or did not perform as advertised. In the case of the beforementioned, the Customer will receive a refund.
8.4.2. The Seller shall comply with the Return Policy and any decision made by Buylocalonline regarding its application, and Buylocalonline shall not be liable to the Seller for any Loss arising out of Buylocalonline’s application of the Returns Policy.
8.4.3 Where Buylocalonline determines in our sole discretion that the basis for such return was not caused by us (for example where the Product was defective), the Seller shall bear the costs associated with shipping of the returned product or with providing a repair or replacement.
8.4.4 Without prejudice to the Seller’s obligation to comply with our decision regarding the Return Policy (which may require the Seller to repair the Product or provide a replacement), where we determine in our sole discretion that the basis for such return was caused by us, we shall as the Seller’s sole and exclusive remedy bear the costs associated with the return and with providing a repair, replacement or refund to the relevant Customer.
9 FEES AND OTHER EXPENSES
9.1 Pricing Schedule: The Pricing Schedule sets out the fees payable by the Seller for the Services. Buylocalonline may, in its sole discretion, change the Pricing Schedule at any time, and is accordingly entitled to remove or amend existing fees and to introduce new fees.
9.2 Fee for Sales Services
9.2.1 The Seller shall pay us: (a) a Success Fee per Transaction amounting to 10% of the Total Order cost (excluding shipping costs); and (b) a Banking Transactions Fee amounting to 7% of the Total Order cost (excluding shipping costs).
9.6 Payment: Wherever the Seller is liable to pay or reimburse Buylocalonline for any costs or expenses under this Agreement, Buylocalonline shall be entitled, in its sole discretion:
9.6.1 to set off any amounts payable by the Seller to us against any amounts payable by us to the Seller;
9.6.2 to invoice the Seller, which shall make payment thereof within 10 days of receipt of invoice;
9.6.3 to debit the Seller Bank Account; or
9.6.4 to seek such payment or reimbursement from the Seller by any other lawful means.
9.7 Time period to dispute invoice: In the event that the Seller wishes to dispute any fees or charges invoiced by Buylocalonline under this Agreement, it shall be entitled to raise such a dispute within 30 days of receipt of such invoice. Should the period of 30 days lapse on receipt of invoice, such invoice will be final and binding.
10 SALES PROCEEDS
10.1 Remittance of Sales Proceeds
10.1.1 Should a) the Customer indicate that the Products are satisfactory or b) the 5 days rejection period lapse, we shall remit to the Seller the Sales Proceeds after deductions of the Success Fee
10.1.2 Payments of Sales Proceeds occur every Wednesday (or at our option, more frequently).
10.2 Bank Account
10.2.1 The Seller must furnish Buylocalonline with valid bank details of the Seller Bank Account and shall update such information as necessary to ensure that it remains accurate and complete.
11 INTELLECTUAL PROPERTY
11.1 It is recorded that the Products may bear or contain, and the Seller may otherwise provide Buylocalonline with, certain intellectual property used in relation to the Products (“Seller IP”). It is agreed that Buylocalonline will be entitled to use the Seller IP on the Website and in related marketing material, in order to market the Products on the Seller’s behalf, or other products. Buylocalonline acknowledges that the Seller IP is owned by or licensed to the Seller and that Buylocalonline acquires no right, interest or proprietorship therein by virtue of this Agreement, save as may be expressly provided herein.
11.2 The Seller hereby warrants that (a) it is the registered proprietor or licensee of the Seller IP; (b) it is entitled to enter into this Agreement and to grant Buylocalonline the rights to use such Seller IP in the marketing of Products as contemplated in this Agreement; and (c) no trademark, copyright, design or other intellectual property rights of any third party/ies will be infringed by the marketing, sale or use of the Products. The Seller hereby indemnifies Buylocalonline and its Affiliates against any Loss arising from or in relation to a breach by the Seller of any of the aforesaid warranties.
12 ILLEGAL AND GREY GOODS
12.1 The Seller warrants that: 12.1.1 it is an authorised retailer of the Products within South Africa, and that none of the Products are so-called ‘grey goods’ – failing which, it shall immediately notify Buylocalonline in writing thereof;
12.1.2 it has valid legal title to all Products and is entitled to sell them on the Website (including that the Seller is appropriately licensed or certified where applicable);
12.1.3 none of the Products is counterfeit or stolen. The Seller shall take reasonable care in sourcing its Products to minimise the risk of counterfeit or stolen goods;
12.1.4 no Product has been produced or manufactured, in whole or part, by child labour or by convict or forced labour; and
12.1.5 it shall comply with all Release Date instructions, where a “Release Date” is the date(s), if any, specified by the manufacturer, distributor and/or licensor of a Product as the date before which specified information regarding such Product (e.g. the title of a book) should not be disclosed publicly, or such Product should not be delivered or otherwise made available to Customers.
12.2 The Seller hereby indemnifies Buylocalonline and its Affiliates against any Loss arising from or in relation to any breach by the Seller of any of the warranties contained in clause 12.1.
12.3 If Buylocalonline knows or has a reasonable suspicion that the Seller is not an authorised retailer of the Products (and has failed to notify Buylocalonline thereof), or that any of the Products is a counterfeit or stolen good, or for any other reason, Buylocalonline is entitled to disable the offending Product from the Website, suspend or terminate the Seller’s Buylocalonline Account and/or otherwise act as permitted by this Agreement or applicable law.
13 CANNABIDIOL PRODUCTS
13.1 The Seller must obtain Buylocalonline’s prior written approval should the Seller wish to market and/or sell Products containing Cannabidiol (“CBD“) on the Website.
13.2 In addition to the Product Warranty set out in clause 8.1, the Seller warrants that any Product consisting of preparations containing CBD, will be processed, manufactured, marketed and sold in strict compliance with the Department of Health’s Regulations regarding the Exclusion of certain preparations containing CBD from the operation of certain provisions of the Medicines and Related Substances Act 1965 (Government Notice 756). The Seller hereby indemnifies Buylocalonline against any Loss which arises from or in relation to a breach by the Seller of this clause
14 USE AND DISCLOSURE OF OTHER INFORMATION
14.1 We may use mechanisms that rate, or allow Customers to rate, the Products and/or the Seller’s performance as a seller and Buylocalonline may make these ratings and feedback publicly available.
14.2 If Buylocalonline receives any complaint (whether from a Customer, a regulatory body or other third party) in relation to any of the Seller’s Products, or the Seller itself, Buylocalonline is entitled to share the Seller’s name and contact details with such complainant, and the Seller shall use its best endeavours to resolve the complaint in good faith directly with the complainant.
14.3 In order to cooperate with a request or order from a regulatory body, to protect our systems and Customers, and/or to ensure the integrity and operation of our business and systems, Buylocalonline is entitled in its discretion to access and disclose any further information relating to the Seller, your Transactions and/or the Products as it deems necessary or appropriate.
14.4 If the Seller or any of your Affiliates elects to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Website or Services (including any related Technology), we shall be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
15.1 During the course of the Seller’s relationship with Buylocalonline, confidential and/or proprietary information relating to Buylocalonline’s business practices, personnel, business processes, systems and any other information of a confidential nature which is not generally available to outside parties or in the public domain or which would be understood, exercising reasonable business judgment, to be confidential (“Confidential Information”), may be disclosed to the Seller.
15.2 The Seller agrees that such Confidential Information shall be used only for purposes of fulfilling its obligations under this Agreement and shall not during the period of this Agreement or at any time thereafter be disclosed, either directly or indirectly, to any person whatsoever, subject to clause
15.3. The Seller shall take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
15.3 Notwithstanding clause 15.2 above, the Seller shall be entitled to disclose Confidential Information –
15.3.1 to its employees and/or professional advisors solely to the extent necessary for the purpose of fulfilling its obligations under this Agreement, and provided that, prior to such disclosure, the Seller first ensures that the receiving person is bound by a written confidentiality undertaking similar to that set out in this clause 15; and
15.3.2 if and to the extent that doing so is required in order to satisfy an order of a court of competent jurisdiction or to otherwise comply with the provisions of any law or regulation in force at the time or the requirements of any recognised stock exchange, provided that the Seller (a) first informs Buylocalonline of the requirement to disclose prior to making the disclosure, and (b) discloses only that portion of the Confidential Information which it is legally required to disclose.
15.4 The provisions of this clause 15 will not apply to information which (a) can be shown to be part of the public domain otherwise than as a result of a breach hereof; (b) is lawfully in the possession of the Seller; (c) is lawfully acquired from a third party or (d) is disclosed or released to satisfy an order of a court or to otherwise comply with the provisions of law.
15.5 The Seller may not issue any press release or make any public statement related to the Services, or use Buylocalonline’s name, trademarks or logo (or that of any of its Affiliates), in any way (including in promotional material) without our prior written consent, or misrepresent or embellish the relationship between us in any way.
16 PERSONAL INFORMATION
The Confidential Information that the Seller receives from Buylocalonline may include ‘personal information’ (“PI”) as defined in the Protection of Personal Information Act 2013 (“POPI”), possibly including the names, delivery or email addresses and/or telephone numbers of Customers and/or Buylocalonline’s staff. In this regard the Seller undertakes to only use or ‘process’ (as such term is defined in POPI) each specific piece of PI to the extent necessary for the purposes of performing its express obligations under this Agreement and in accordance with the provisions of POPI. The Seller specifically undertakes that it shall –
16.1 process PI in such manner that is reasonable, adequate, relevant, non-excessive, purpose-specific and non-infringing of the relevant individual’s privacy;
16.2 secure the integrity and confidentiality of PI in its possession or under its control by taking appropriate, reasonable technical and organisation measures to prevent (a) loss of, damage to or unauthorised destruction of PI and (b) unlawful access to or processing of PI;
16.3 take reasonable measures to (a) identify all reasonably foreseeable internal and external risks to such PI; (b) establish and maintain appropriate safeguards against such risks; (c) regularly verify that the safeguards are effectively implemented; and (d) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
16.4 have due regard to generally accepted information security practices and procedures which may apply to it generally or be required in terms of specific industry or professional rules and regulations; and
16.5 if there are reasonable grounds to believe that any PI has been accessed or acquired by an unauthorised person, immediately notify Buylocalonline thereof.
17 ADDITIONAL WARRANTIES AND INDEMNITIES
17.1 In addition to the Seller’s warranties referred to elsewhere in this Agreement, the Seller warrants to that:
17.1.1 the Seller is not a Prohibited Person as set out in clause 3.2;
17.1.2 the Seller shall strictly adhere to all applicable laws in South Africa in the performance of its obligations under this Agreement (including in relation to the operation of its facilities and its labour practices);
17.1.3 if it is a business, it validly exists and is in good standing under the laws of the country in which the business was registered; and
17.1.4 it has all requisite right, power and authority to enter into this Agreement and perform its obligations and grant the rights it grants hereunder,
17.2 The Seller shall use counsel reasonably satisfactory to Buylocalonline, to defend each indemnified claim set out in this Agreement. In the event that Buylocalonline determines that any indemnified claim might adversely affect us, we may take control of the defence at our expense, provided that the Seller shall offer all necessary assistance in connection with such defence. The Seller may not consent to the entry of any judgment or enter into any settlement of an indemnified claim without our prior written consent, which shall not be unreasonably withheld.
19 LIMITATION OF LIABILITY
19.1 Buylocalonline shall not under any circumstances be liable to the Seller for any consequential, incidental, indirect, special or punitive damages (such as those arising from loss of income, loss of goodwill or profits, or business interruption) arising out of this Agreement or otherwise.
19.2 Buylocalonline’s aggregate liability to the Seller arising out of or in connection with this Agreement or the Transactions shall not exceed at any time the total amounts during the prior six month period paid by the Seller to Buylocalonline in connection with the Services.
20 TAX POLICIES
20.1 The Seller shall be solely responsible for the payment of all of the Taxes. If a taxing authority requires us to pay any of the Taxes, the Seller shall promptly reimburse us for the amounts paid.
20.2 All fees payable by the Seller to Buylocalonline under this Agreement exclude any applicable Taxes, and the Seller shall be responsible for paying Buylocalonline all of the Taxes imposed on such fees.
21 RELATIONSHIP OF PARTIES
21.1 You hereby appoint us as your payment-processing agent for the limited purpose of receiving Sales Proceeds on your behalf. Except as provided in the preceding sentence, the Seller and we are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. The Seller shall have no authority to make or accept any offers or representations on our behalf.
21.2 This Agreement shall not create an exclusive relationship between the Seller and us.
21.3 Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the Parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement.
22 USE OF WEBSITE AND SELLER PORTAL
22.1 Notwithstanding any provision of this Agreement, we shall have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Website, Seller Portal and the Sales Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, the Website. Seller Portal and the Sales Service and any element, aspect, portion or feature thereof (including the placement of any Product listings on the Website), from time to time).
22.2 The use of the Website and/or Sales Portal is entirely at your own risk and you assume full responsibility for any risk or loss resulting from use of or reliance on any information on the Website or Sales Portal.
22.3 Whilst Buylocalonline takes reasonable measures to ensure that the content of the Website and Seller Portal is accurate and complete, Buylocalonline makes no representations or warranties, whether express or implied, as to the quality, timeliness, operation, integrity, availability or functionality of the Website or Sales Portal or as to the accuracy, completeness or reliability of any information on the Website or Sales Portal. Such information is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, completeness, or non-infringement, as may be allowed in law. If any such representations or warranties are made by Buylocalonline’s representatives, Buylocalonline shall not be bound thereby.
22.4 Buylocalonline disclaims liability for any damage, loss or expenses, whether direct, indirect or consequential in nature, arising out of or in connection with your access to, use of, or inability to use the Services, the Website, Sales Portal and/or any content therein unless otherwise provided by law.
22.5 In addition to the disclaimers contained elsewhere in these Terms and Conditions, Buylocalonline also makes no warranty or representation, whether express or implied, that the information or files available on the Website or Sales Portal are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of your computer system, computer network, hardware or software in any way. You accept all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device, or your hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of Buylocalonline, its employees, agents or authorised representatives. Buylocalonline thus disclaims all liability for any damage, loss or liability of any nature whatsoever arising out of or in in connection with your access to or use of the Services, Website or Sales Portal.
22.6 We will use reasonable endeavours to maintain the availability of the Website and Seller Portal, except during scheduled maintenance periods, and are entitled to discontinue providing the Website or Seller Portal, or any part thereof with or without notice to you.
22.7 Buylocalonline may in its sole discretion terminate, suspend and modify the Website or Seller Portal, with or without notice to you. Buylocalonline retains the right to immediately halt any Transaction, prevent or restrict access to the Services or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise deemed unsuitable for sale as per Buylocalonline’s discretion.
23 NOTICES AND DOMICILIUM
23.1 For the purpose of serving notices and formal processes arising out of or in connection with this Agreement, its breach or termination, Buylocalonline’s address shall be that referred to in clause 1.1 and the Seller’s address shall be your designated delivery address and nominated email address on the Seller Portal. You may change your designated delivery address and nominated e-mail address by updating your information in the Seller Portal.
23.2 You shall update your contact information on the Seller Portal (including your legal name, nominated email address, delivery address and phone number) as often as necessary to ensure that it is accurate. Buylocalonline is not responsible for any Loss suffered or incurred by you arising out of or in relation to your contact information on the Seller Portal being incorrect or out-of-date.
23.3 Any notice shall (a) if delivered by hand or courier be deemed to have been duly received by the addressee on the date of delivery; and (b) if transmitted by email be deemed to have been received by the addressee one Business Day after despatch.
23.4 The Seller must send all operational notices and other communications relating to Buylocalonline to our Seller Solutions Team by sending an email or using the Contact Us form in the Seller Portal, or to its key account manager (if applicable) by sending an email.
24.1 This Agreement shall be governed and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Website will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either Party against the other, arising from this Agreement.
24.2 In the event of any dispute arising between you and Buylocalonline, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (Western Cape Division, Cape Town), notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
24.3 The Seller may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to, and be enforceable against the Parties and your respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Buylocalonline shall be entitled to cede, delegate, assign, sub-contract, transfer or otherwise dispose of this Agreement without the need for consent from the Seller.
24.4 Our failure to enforce the Seller’s strict performance of any provision of this Agreement shall not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
24.5 The Seller must promptly notify Buylocalonline if:
24.5.1 there is any change in the direct or indirect beneficial ownership or control of the Seller;
24.5.2 it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business; or
24.5.3 it ceases or threatens to cease carrying on its normal line of business;
24.5.4 enters into or attempts to enter into any general compromise or arrangement with its creditors, or
24.5.5 it commits an act of insolvency within the meaning of the Insolvency Act 1936; or
24.5.6 it enters into or attempts to enter into a voluntary winding up otherwise than for the purposes of a solvent reconstruction or amalgamation; or
24.5.7 it becomes the subject of a court order for business rescue proceedings or sequestration, or is provisionally or finally liquidated; or
24.5.8 it becomes the subject of any application, request or proceeding for the appointment of an examiner, administrator, trustee, official assignee or similar officer in respect of his affairs or assets; or has a receiver, liquidator, judicial manager, business rescue practitioner or curator appointed over all or any substantial part of his/its undertaking, assets or revenues, either provisionally or finally.
24.6 Because Buylocalonline is not the Seller’s agent except for the limited purpose of receiving Sales Proceeds on your behalf, nor the Customer’s agent for any purpose, Buylocalonline is entitled to arbitrate disputes between participants related to or arising out of any Transaction if necessary. In such event, Buylocalonline’s decision is final and may not be contested.
24.7 If the CPA applies to a Seller under this Agreement as set out in clause 1.4, nothing in this Agreement is intended to (a) waive or deprive the Seller of a right in terms of the CPA; (b) avoid Buylocalonline’s obligation or duty in terms of the CPA; or (c) authorise Buylocalonline to do anything that is unlawful in terms of the CPA or fail to do anything that is required in terms of the CPA.
24.8 If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement represents the entire agreement between the Parties with respect to the Services and related subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings.