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WELCOME TO OUR SELLERS TERMS & CONDITIONS
PART 1: DEFINITIONS:
Site: means the online marketplace platform provided by us via the www.waldolyticsmarketplace.com.
Registration Form: the form which must be agreed to online when subscribing by the Seller as part of its application to join the Waldolytics Marketplace.
Commission Fee: the fee set out in clause 6.3.
Customer: a person, firm or company who enters into or is invited to enter into any contract with the Seller via the Waldolytics Marketplace.
General Terms & Conditions: the terms and conditions between us and the Customer, as notified to you from time to time.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Force Majeure Event: means any circumstance not within a party’s reasonable control including, without limitation:
- acts of God, flood, drought, earthquake or other natural disaster;
- epidemic or pandemic;
- terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
- nuclear, chemical or biological contamination or sonic boom;
- any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
- collapse of buildings, fire, explosion or accident; and
- interruption or failure of utility service.
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Product: the goods that Sellers wish to market and sell via the Waldolytics Marketplace.
Product Pricing Policy: How sellers’ price their work via the Waldolytics Marketplace. See Obligations.
Buyer: means a person, firm or company who makes a bid for, and/or purchases, any goods or services offered for sale on this Site;
Product Set-up and Listing Requirements: How sellers should upload images and give descriptions and should explain their shipping and returns arrangements. See Obligations
Service: the Waldolytics Marketplace and other related services to be provided by us under this agreement.
Storefront: means the individual Seller’s portal within the Waldolytics Marketplace to market its Products.
VAT: value added tax.
Fees: means any charges which Waldolytics Marketplace charge as per the Billing Statement;
Listings: means the offering for sale and buy now on this Site;
Personal information or Your information: means “Personal information”, “your information” or “information” are used interchangeably in this Agreement and all mean any and all information you provide to us in using this Site including, but not limited to:
- Your registration details including your name, address, telephone and fax numbers;
- Your credit card details or any other financial information;
- Unique identifiers including your company name and VAT number;
- The information that we learn about you as a result of your use of this Site, including without limitation, through the goods and services you post on this Site if you are a Seller and the goods and services you bid for and/or acquire if you are a Customer;
- The information obtained from you in confirmation of your identity, address and contact information for security and verification reasons;
- That information defined as personal information in section 1 of the Protection of Personal Information Act.
“we“, “us“, “our“, “ourselves” and “Waldolytics Marketplace” are used interchangeably in this Agreement and all mean Waldolytics Marketplace;
“you” or “your” means you, whether as a Customer and/or you as a Seller, as the case requires, or otherwise, and your successors and permitted assigns;
A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
PART 2: SELLERS TERMS & CONDITIONS
1. COMMENCEMENT AND DURATION
1.1 We shall provide the Service to the Seller on the terms and conditions of this agreement.
1.2 We shall provide the Service to the Seller after the following events and the Seller accepts that we have the sole discretion as to whether to invite or select prospective Sellers to use the Service:
1.2.1 we have received a completed Registration/Application Form with agreement to the Terms and Conditions and Obligations and other Requirements stipulated from the prospective Seller for example appropriate products commensurate with the Waldolytics Marketplace brand; and
1.2.2 we have notified the prospective Seller of our acceptance of the Products and Storefront setup.
1.2.3 There is no monthly or annual subscription fee.
1.3 This agreement shall continue unless it is terminated by one of the parties giving to the other not less than one months’ notice, unless this agreement is terminated in accordance with clause 11.
2. OUR OBLIGATIONS
2.1 We shall use reasonable endeavours to provide the Service, and to provide the Service with reasonable care and skill.
2.2 We shall provide a dashboard for the Seller to create and update a Storefront.
2.3 We shall use reasonable endeavours to host this Site and remedy any faults in the Service that is within our control as soon as reasonably practicable. The Seller accepts that the Service will not be entirely free of fault at all times and that in some instances the website may need to be shut down for maintenance purposes.
2.4 We shall provide the Seller with access to the Site where the Seller may offer and sell their Products directly to Customers. Thereby:
2.4.1 we shall promote the sale of products on this Site, social media, by newsletter and other standard means in our sole discretion;
2.4.2 any contract for sale of the Products is made directly between the Seller and the Customer and we are not party to any such contract;
2.4.3 we shall facilitate the sale of Products via email;
2.4.4 we shall facilitate payment of the Products in accordance with clause 5;
2.5 We retain the right to change the Service at any time.
3. SELLER’S OBLIGATIONS
3.1 General Obligations – The Seller shall:
3.1.1 warrant that all information set out within the Registration Form is accurate and up to date at all times, with any such changes to be notified to us as soon as possible;
3.1.2 sell the Products to the Customers in accordance with the Customer Terms & Conditions;
3.1.3 not, without our prior written consent, sell Products through any unauthorized Site, large chain/department stores.
3.1.4 co-operate with us in all matters relating to the Service.
3.2 Technical Obligations – The Seller shall:
3.2.1 be responsible for providing and maintaining (at its own cost) access to the World Wide Web and ensure that all computer equipment used by the Seller, including hardware and software, is up-to-date and can access and interoperate with this Site. In particular, the Seller should ensure that it has appropriate anti-Virus software in place;
3.2.2 provide, in a timely manner, such material and other information as we may reasonably require, and ensure that it is accurate in all material respects;
3.2.3 ensure that any information, documentation or photographs provided to us electronically, either via email or the Site is transmitted free from Viruses;
3.2.4 be responsible for the security and proper use of passwords and other security devices used in connection with the Service;
3.2.5 not include on the Website, the Storefront or in any communication with the Customer a link to another website (including the Seller’s website and social media pages), its email address, address or telephone number;
3.2.6 at all times comply with any Security Requirements provided by us to the Seller.
3.3 Storefront Obligations – The Seller shall:
3.3.1 be responsible for creating, managing and displaying their Profile and Products on the Storefront in a professional and appealing manner which is kept up to date;
3.3.2 display for sale a minimum of 5 individual Products on the Storefront at any one time;
3.3.3 at all times comply with any Presentation Guidelines provided by us to the Seller;
3.3.4 ensure that all Seller Information provided in respect of itself or the Products is and remains true, accurate, current and complete;
3.3.6 warrant that none of its Seller Information, Products or use of the website will:
220.127.116.11 be false, inaccurate or misleading;
18.104.22.168 be fraudulent, or involve the sale of counterfeit or stolen items;
22.214.171.124 be defamatory, menacing, offensive, obscene, pornographic, abusive, indecent or in poor taste;
126.96.36.199 be in breach of any applicable law or regulation, including but not limited to breach of copyright, confidence, privacy, e-commerce, distance selling, data protection, export control, tax, consumer protection and advertising;
188.8.131.52 infringe any third-party Intellectual Property Rights or privacy;
184.108.40.206 adversely affect the reputation of our brand.
3.3.7 comply with the Product Information Policy provided by us to the Seller;
3.3.8 comply with the Product Pricing Policy provided by us to the Seller. See the Obligations document
3.3.9 comply with the Product Set-up and Listing Requirements provided by us to the Seller. See the Obligations Document
3.3.10 shall ensure that the goods and/or services offered for sale, and sold, are in compliance with the laws of the Republic of South Africa and especially that of the Consumer Protection Act that became effective 1 April 2011;
3.3.11 shall ensure that the goods and/or services offered are 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.
3.4 Customer Order Obligations – The Seller shall:
3.4.1 agree that following acceptance of an order on this Site, such order is irrevocable and must be concluded by the Seller directly to the Customer;
3.4.2 be bound by the Customer Terms and Conditions in respect of the sale of the Products;
3.4.3 comply with the Customer Order Requirements provided by us to the Seller. See the Obligations document.
3.4.4 comply with the Returns and Refunds Requirements provided by us to the Seller; See the Returns and Refunds Policy.
3.5 You agree that we may deactivate the Seller’s Storefront at any time if, in our sole discretion, we consider that the Seller has not complied with any of our Policies.
4. FEES AND PAYMENT
4.1 In consideration of the provision of the Service by us, the Seller shall pay the Commission Fee as set out in Clauses 2 and 4.3.
4.2 There is no Subscription fee.
4.3 The Commission Fee is set at 6% plus R2.00 of the value of the total amount payable by a Customer in relation to each Product sold through our Website by the Seller including VAT if applicable. The Seller retains the delivery charges applying to the Product
4.4 If the goods are returned to the Seller according to the Refunds and Returns Policy then the we reimburse the customer the full amount. We reserve the right to keep Sellers’ money for a 30 day period for this purpose
4.5 Payments for the Products shall be made directly to us by Customers via Debit card or Credit card or EFT payment. The Seller agrees that the Customer’s obligation to pay the Seller for Products is fulfilled when the Customer validly pays us for the applicable Product.
4.6 The Commission Fee shall be collected directly by us from payments made by the Customer.
4.7 Payments for Products by Customers will be via payment methods used by us from time to time.
4.8 We shall pay the Seller for all transactions that have taken place by a withdraw method from the Seller Dashboard. It is the Seller’s responsibility to withdraw from their balance (what is has been earned minus 5%) The Seller has to request withdrawal which has to be approved by us. The money earned from any transaction has to remain in the balance for a period of 30 days to allow for the possibility of a Return and Refund.
4.9 All payments must be made in South African Rands (“ZAR”).
4.10 The Seller shall provide up-to-date banking details to us if required in order to facilitate payments for sold products and shall be responsible for any banking charges or administrative expenses incurred by us in respect of incorrect or inaccurate information.
4.11 Waldolytics Marketplace reserves the right to charge a R600 administration fee to re-activate restricted, disabled or blacklisted accounts.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Our Intellectual Property Rights
5.1.1 All Intellectual Property Rights in our name, logo, and brand shall be owned by us. Subject to clause 1.2, we license to the Seller the use of our name, logo and branding on promotional material, packaging or elsewhere in accordance with these terms. On the termination of this agreement, this license will automatically terminate.
5.1.2 All Intellectual Property Rights in the Service and in any software or documentation are the property of us or our licensors. Subject to clause 1.2, we grant to the Seller a non-exclusive, non-transferable, revocable and limited license to use any software or documentation for the sole purpose of accessing and using the Service. On the termination of this agreement, this license will automatically terminate.
5.1.3 Any Intellectual Property Rights created by us will remain the property of us.
5.2 Seller’s Intellectual Property Rights
5.2.1 The Seller warrants that:
220.127.116.11 it is the legal owner of all of the Intellectual Property Rights in and relating to the Products (including any photographs, images, logos), and/or that it has a valid license to use any such Intellectual Property Rights;
18.104.22.168 the use by the Seller and/or us of the Intellectual Property Rights in order to sell the Products on this Site will not infringe any third-party Intellectual Property Rights.
5.2.2 The Seller shall at all times during and after the term of this Agreement indemnify us against any and all claims, demands, damages, liabilities, losses, costs and /or expenses arising out of or in relation to any breach of clause 5.1.1 (“Intellectual Property Rights Claim”).
5.2.3 If an Intellectual Property Rights Claim is made, the Seller shall:
22.214.171.124 do all things necessary to make the IPRs non-infringing;
126.96.36.199 notify us in writing of any Intellectual Property Rights Claim.
5.2.4 We may conduct and defend any Intellectual Property Rights Claim and may settle or compromise such claim at our sole discretion. The Seller shall give us such assistance as we shall reasonably require in respect of the conduct of the claim and defense.
5.2.5 The Seller licenses to us access to and use of any content that is placed on the Seller’s Storefront. We may use the images and profile information in publicity and social media.
6. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
6.1 Each party receiving Confidential Information from the other shall keep that information confidential. This agreement is to be considered Confidential Information.
6.2 The obligations of confidentiality shall not apply:
6.2.1 where specific prior written consent of disclosure has been given;
6.2.2 to information in the public domain, other than through a breach of confidentiality;
6.2.3 to information lawfully in the possession of the recipient before the disclosure was make;
6.2.4 where the information is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
6.3 The obligations of confidentiality shall remain in effect for five (5) years after the termination or expiry of this agreement.
7. LIMITATION OF LIABILITY
7.1 Nothing in this agreement limits or excludes our liability for:
7.1.1 death or personal injury caused by its negligence;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 1, we shall not be liable to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
7.2.1 loss of profits;
7.2.2 loss of sales or business;
7.2.3 loss of agreements or contracts;
7.2.4 loss of anticipated savings;
7.2.5 loss of or damage to goodwill;
7.2.6 loss of use or corruption of software, data or information;
7.2.7 any indirect or consequential loss.
7.3 Subject to clause 1 and clause 7.2, our total liability to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to: R2000 per claim.
8. DATA PROTECTION
8.1 The Seller acknowledges and agrees that personal data will be processed by and on behalf of the Supplier in connection with the Service.
8.2 Information and data provided by the Seller may be not be used, disclosed and distributed by us.
9.1 Without affecting any other right or remedy available to it, this agreement shall remain in force until either party notifies the other in writing with at least 30 days’ notice.
9.2 We may immediately suspend or terminate this agreement with immediate effect without liability by giving written notice to the Seller if:
9.2.1 the Seller commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so;
9.2.2 the Seller cannot pay its debts as they fall due or becomes or is threatened to become insolvent, or is the subject of a bankruptcy order, or makes any arrangement or makes a proposal for or enters into any compromise or arrangement with any of its creditors, or goes into voluntary or compulsory liquidation, or an application is made to court, or an order is made, for the appointment of an administrator, or the equivalent of any such event happens to the Seller;
9.2.3 the Seller fails to display/ sell a minimum of 5 individual Products at any time, in accordance with clause [3.3.2].
9.2.4 in our sole discretion, we consider that the Seller’s eligibility or suitability to be listed on the Site changes.
10. CONSEQUENCES OF TERMINATION
10.1 On termination or expiry of this agreement, the Seller shall immediately pay to us any outstanding Fees due and unpaid.
10.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11. FORCE MAJEURE
11.1 If a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11.2 If the Force Majeure Event prevails for a continuous period of more than three (3) months, either party may terminate this agreement by giving 14 days’ written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
15.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. ENTIRE AGREEMENT
16.1 This agreement, and any documents referred to in it, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
16.3 Nothing in this clause shall limit or exclude any liability for fraud.
17. ASSIGNMENT AND OTHER DEALINGS
17.1 This agreement is personal to the Seller and the Seller shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
17.2 We may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
18. THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms. Nothing in this clause excludes our rights to act as payment agent of the Seller.
19.1 A notice given to a party under or in connection with this agreement:
19.1.1 shall be in writing and in English;
19.1.2 shall be sent to the party for the attention of the contact and at the address or fax or email listed in clause 2
19.1.3 is deemed received as set out in clause 3 if prepared and sent in accordance with this clause.
19.2 The parties’ addresses and contacts are as set out in this table:
1st floor, Sala House, 12 Fredman Drive, Sandton, 2196
19.3 This table sets out:
19.3.1 delivery methods for sending a notice to a party under this agreement; and
19.3.2 for each delivery method, the corresponding delivery date and time when delivery of the notice is deemed to have taken place provided that all other requirements in this clause have been satisfied and subject to the provisions in clause 19.4:
Deemed delivery date and time
Delivery by hand.
On signature of a delivery receipt.
Pre-paid first class post or other next working
9.00 am on the second Business Day after
day delivery service providing proof of delivery
posting or at the time recorded by the delivery service
At the time of transmission.
On acknowledgment of receipt of the email
19.4 For the purpose of clause 3 and calculating deemed receipt:
19.4.1 all references to time are to local time in the place of deemed receipt; and
19.4.2 if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00 am on the day when business next starts in the place of receipt.
19.5 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
20.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
20.3 No counterpart shall be effective until each party has executed at least one counterpart.
21. DISPUTE RESOLUTION PROCEDURE
21.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause: The Party should inform the other party the exact reason for the dispute. Each party should try and resolve the dispute by email or if necessary, by phone. Each party should adhere to the agreement. If there is a dispute over the agreement, then resolution between the two parties should be found for the individual case. This may involve discussion and compromise. As a last resort legal advice should be sought with regard to breaches of contract for either party and legal solutions enforced. This may include compensation or disqualification from using the service. Amicable resolutions are favoured.
22. GOVERNING LAW
22.1 This Agreement will be governed by the laws in force in the Republic of South Africa and each party unconditionally submits to the nonexclusive jurisdiction of the court of the Republic of South Africa in relation to any legal action, suit or proceedings arising out of or with respect to this Agreement.
22.2 With reference to clause 22.1, the parties submit to the jurisdiction of the High Court of South Africa, South Gauteng High Court and the parties submit to the jurisdiction of the Magistrate’s Court or the Regional Court irrespective of whether the amount claimed by us exceeds the applicable monetary limit allowed to institute a claim in the Magistrate’s Court or Regional Court.
Each party irrevocably agrees that the courts of Gauteng, the Republic of South Africa shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date of Registration when the Terms and Conditions and Obligations box is checked, the Seller’s Products have been vetted and accepted, and the Seller Dashboard has been issued