1. INTERPRETATION AND PRELIMINARY

Unless a contrary intention clearly appears:

• 1.1. words importing:

  • 1.1.1. any gender include all others;
  • 1.1.2. the singular include the plural and vice versa; and
  • 1.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;

• 1.2. the following terms have the meanings assigned to them in this clause 1.2 and related expressions will have corresponding meanings, namely:

  • 1.2.1. “Account Administrator” means the primary administrative Account User of the Vendor Account;

  • 1.2.2. “Account User” means the Account Administrator and any employee or contractor of the Vendor authorised by the Account Administrator to use the Vendor Account;

  • 1.2.3. “Applicable Laws” in relation to a Party, will include all and any:

    • 1.2.3.1. statutes and subordinate legislation and common law, including without limitation:
      • 1.2.3.1.1. the Protection of Personal Information Act, No. 4 of 2013;
      • 1.2.3.1.2. the Disaster Management Act, No. 57 of 2002; and
    • 1.2.3.2. regulations; and
    • 1.2.3.3. ordinances and by laws; and
    • 1.2.3.4. directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self regulatory or other authority or organisation.
    • 1.2.3.5. other similar provisions, from time to time, compliance with which is mandatory for that Party;

  • 1.2.4. “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;

  • 1.2.5. “Confidential Information” means:

    • 1.2.5.1. any information of whatsoever nature, which has been or may be obtained by a Party from the other Party, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, lists, price lists, studies, findings, any inventions or ideas;
    • 1.2.5.2. analyses, concepts, compilations, studies and other material prepared by or in possession or control of a Party which contain or otherwise reflect or are generated from any such information as is specified in this definition;
    • 1.2.5.3. any dispute arising in terms of these Terms of Service, other than the information in clause 10.4;

  • 1.2.6. “Disclosing Party” means any Party disclosing Confidential Information;

  • 1.2.7. “Force Majeure Event” means an event beyond the reasonable control of the affected Party which was not caused by, and could not have been reasonably planned for, or avoided by, the affected Party, including strikes, lockouts and other industrial disputes, war, riot or civil commotion;

  • 1.2.8. “Parties” means the parties to these Terms of Service, namely the Service Provider and the Vendor;

  • 1.2.9. “Payment Method” means any payment method permitted by the Service Provider to pay the Subscription Fees;

  • 1.2.10. “Personal Information” means information about an identifiable person, business, or other entity that is not de-identified, as defined in the Protection of Personal Information Act, No 4 of 2013;

  • 1.2.11. “Platform” means the product comparison website developed, hosted and operated by the Service Provider through which the Vendor can add their own Product Listings ;

  • 1.2.12. “Prohibited Activities” means any activities as may be determined by the Service Provider in accordance with clause 23 from time to time;

  • 1.2.13. “Receiving Party” means any Party receiving Confidential Information;

  • 1.2.14. “Service Provider” means Handy Cats Proprietary Limited (Registration No. 2017/198724/07), with its full details as set out in ANNEXURE A;

  • 1.2.15. “Service Provider Intellectual Property” means any and all tangible and intangible rights associated with:

    • 1.2.15.1. names, brands, all patents, trademarks, works of authorship or creative works, images, photographs, designs, design rights, drawings, sketches, models, samples, copyright (including all copyright in any logos, devices, designs and rights in and to the software used in relation to the Platform), systems, methodologies, specifications, inventions, formulae, source codes, proprietary material, ideas, concepts, trade secrets, procedures, skills, tools, methods, techniques, rights in databases, which are held, used or accessed by the Service Provider from time to time;
    • 1.2.15.2. any and all data or meta-data generated by the Vendor and/or the Service Provider in relation to their use and provision of the Services;
    • 1.2.15.3. any software, code or programming statements and instructions comprising or forming part of the Site and/or Services, and all related documentation, technical data, instructions, information and functional specifications required for operation;
    • 1.2.15.4. the following domain names:
      • 1.2.15.4.1. www.campare.co.za;
    • 1.2.15.5. the trade secret rights in relation to the Services;
    • 1.2.15.6. the know-how regarding the Services;
    • 1.2.15.7. the tradenames and/or word “campare” or any other abbreviated form or derivative of the foregoing, used by the Service Provider from time to time, in each case, whether registered or unregistered, and including all improvements thereto from time to time;

  • 1.2.16. “Services” means the following services offered by the Service Provider, namely:

    • 1.2.16.1. the provision of the Platform;

  • 1.2.17. “Subscription Fees” means the monthly subscription fee payable by the Vendor to the Service Provider in consideration for the provision of the Services, as set out in ANNEXURE B;

  • 1.2.18. “Site” means the website operated by the Service Provider at the address listed in clause 1.2.15.4.1, or such other address as the Service Provider may specify from time to time;

  • 1.2.19. “Terms of Service” means these terms and conditions relating to the Services, including:

    • 1.2.19.1. the Privacy Policy referenced in clause 12; and
    • 1.2.19.2. all annexures and schedules;

  • 1.2.20. “Product Listing” means each Product listed by the Vendor on the Platform;

  • 1.2.21. “Vendor” means any vendor agreeing to these Terms of Service in order to register a Vendor Account;

  • 1.2.22. “Vendor Account” means an account established by the Vendor in accordance with these Terms of Service, in terms of which the Account Users can manage and access details of all Product Listings;

  • 1.2.23. “Visitor” means a natural person that views the Site;

• 1.3. reference to any legislation is to that legislation as at the date of access and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such legislation. Any reference to a particular section in any legislation is to that section as at the date of access, and as amended or re enacted from time to time and/or an equivalent measure in any legislation, provided that if as a result of such amendment, the specific requirements of a section referred to in these Terms of Service are changed, the relevant provision of these Terms of Service will be read also as if it had been amended as necessary, without the necessity for an actual amendment;

• 1.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, regardless that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of these Terms of Service;

• 1.5. when any number of days is prescribed in these Terms of Service, whether the period is to be calculated forwards or backwards, the ordinary civilian method will apply to the calculation as follows: include the first day and exclude the last day (FILO), unless the last day falls on a day that is not a Business Day, in which case the last day will be the next succeeding Business Day;

• 1.6. if figures are referred to in numerals and in words and if there is any conflict between the two, the words will prevail;

• 1.7. expressions defined in these Terms of Service will bear the same meanings in schedules or annexures to these Terms of Service which do not themselves contain their own conflicting definitions;

• 1.8. if any term is defined within the context of any particular clause in these Terms of Service, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, will bear the meaning ascribed to it for all purposes in terms of these Terms of Service, regardless that the term has not been defined in this clause 1;

• 1.9. provisions of these Terms of Service may survive the expiration or termination of these Terms of Service if that is expressly provided for or if such survival is necessary to achieve the Parties’ express intention;

• 1.10. the rule of construction that a contract will be interpreted against the Party responsible for the drafting or preparation of the contract, will not apply;

• 1.11. any reference in these Terms of Service to a Party will include a reference to that Party’s assigns expressly permitted under these Terms of Service and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;

• 1.12. the words “include”, “including” and “in particular” will be construed as being by way of example or emphasis only and will not be construed, nor will they take effect, as limiting the generality of any preceding word(s); and

• 1.13. any reference in these Terms of Service to any other agreement or document will be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.

2. APPLICATION OF THESE TERMS OF SERVICE

These Terms of Service will be applicable and be binding on the Vendor for so long as the Vendor Account remains active, unless indicated otherwise in these Terms of Service.

3. ELIGIBILITY REGARDING THE SERVICES

• 3.1. To be eligible to use any Service, the Vendor must:

  • 3.1.1. create and maintain the Vendor Account;
  • 3.1.2. provide any information requested by the Service Provider, including any Personal Information or Confidential Information;
  • 3.1.3. upload any documentation requested by the Service Provider; and
  • 3.1.4. complete any identity verification procedures prescribed by the Service Provider, to the satisfaction of the Service Provider.

• 3.2. Upon creation of a Vendor Account as contemplated in clause 3.1.1, a contract will have been formed between the Vendor and the Service Provider on the terms set out in these Terms of Service.

• 3.3. These Terms of Service will be accessible by the Vendor at all times through the Site.

• 3.4. The Service Provider may, in the Service Provider’s sole discretion refuse to allow the registration of any Vendor Account.

• 3.5. Further to clause 3.1.3, the Service Provider may require the Vendor to undergo any further or additional identity verification procedures determined by the Service Provider in its sole discretion from to time to time.

4. PROVISION OF THE SERVICES

• 4.1. The Services are accessible through:

  • 4.1.1. the Site; or
  • 4.1.2. such other means as the Service Provider may make available from time to time.

• 4.2. The Service Provider reserves the right:

  • 4.2.1. to modify or discontinue, temporarily or permanently, all or any part of any Service, with or without notice; and/or
  • 4.2.2. to impose limitations and/or restrictions on any Service at any time in its sole discretion; and/or
  • 4.2.3. to delay or cancel any Product Listing relating to any Service if there is any risk of fraud or illegal activity.

• 4.3. The Vendor acknowledges that the inclusion of any hyperlinks or any advertisement of any third party on the Site or Platform does not imply endorsement by the Service Provider of their products, services, business or security practices or any association with its operators. Further, the Vendor acknowledges and agrees that:

  • 4.3.1. accessing and using any third party websites, applications, products, services, and/or business, is done at the Vendor’s sole and exclusive risk;
  • 4.3.2. the Service Provider has no association with any of the trademarks or brands of the service providers providing the list of available Payment Methods; and
  • 4.3.3. the Service Provider has no association with any of the trademarks or brands of the service providers providing any advertisement.

5. USE OF THE SERVICES BY THE VENDOR

• 5.1. The Vendor undertakes to use the Services solely for its internal business purposes, in accordance with these Terms of Service and the Applicable Laws at all times.

• 5.2. The Vendor agrees that the Vendor will not at any time attempt or actually (whether alone or in conjunction with any third party):

  • 5.2.1. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any part of any Service;
  • 5.2.2. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any security features of any Service;
  • 5.2.3. infect any Service with any software, malware or code that may infect, damage, delay or impede the operation of any Service or which may intercept, alter or interfere with any data generated by or received through any Service;
  • 5.2.4. allow any third party to use the Vendor Account in any way or deal with any Services in any manner other than as permitted by these Terms of Service;
  • 5.2.5. access any account that is not the Vendor Account;
  • 5.2.6. post or upload any offensive, obscene, defamatory, pornographic or otherwise illegal content on the Services (including on any communication functionality provided for in the Services from time to time); and
  • 5.2.7. use the Services for any Prohibited Activities or in contravention of the Applicable Laws.

• 5.3. The Vendor agrees that it will be solely liable for all taxes, penalties, costs, charges or other amounts that they may incur pursuant to their use of the Services.

6. SUBSCRIPTION FEES

• 6.1. In consideration for the provision of the Services, the Vendor will pay the Subscription Fees to the Service Provider, monthly in advance.

• 6.2. Unless agreed otherwise in writing by the Service Provider, payment of the Subscription Fees will be made by the Vendor using the Payment Method, free of set-off, or deduction of any kind.

• 6.3. The Service Provider reserves the right to suspend the Vendor’s access to the Services in the event that the Vendor is in arrears in respect of the Subscription Fees.

• 6.4. Unless otherwise provided, the Subscription Fees do not include any required taxes, which will be levied separately as required. Taxes not included on an invoice will be the responsibility of the Vendor.

7. VENDOR ACCOUNT MANAGEMENT

• 7.1. The Vendor agrees that it is the Vendor’s sole and absolute responsibility to keep up to date, secure and confidential all of the Vendor’s login and user information relating to the Vendor Account.

• 7.2. The Vendor must immediately notify the Service Provider in writing of any security breach in respect of the Vendor Account that comes to the Vendor ‘s attention.

• 7.3. The Vendor is solely and absolutely responsible for any use of and activity on the Vendor Account.

8. LIMITED LICENSE IN RESPECT OF THE SITE AND THE SERVICES

• 8.1. The Service Provider grants the Vendor, the Account Administrator and each Account User a limited, non-exclusive, non-transferable license, subject to these Terms of Service, to access and use the Site and the Services and related content solely for purposes of accessing and using the Services.

• 8.2. Any use of the Site or the Services other than in accordance with clause 8.1 is expressly prohibited and all other right, title, and interest in and to the Site and the Services vests in the Service Provider.

• 8.3. The Vendor agrees to not copy, imitate, use, transmit, distribute, sell, license, reverse-engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any part of the Site and the Services or related content, in whole or in part.

9. SUSPENSION AND CANCELLATION OF THE VENDOR ACCOUNT

• 9.1. The Service Provider may at any time, and in its sole discretion:

  • 9.1.1. suspend, restrict, or cancel the Vendor’s access to any or all of the Services; and/or
  • 9.1.2. suspend or cancel the Vendor Account if:
    • 9.1.2.1. the Service Provider is so required by the Applicable Laws, or pursuant to any valid order issued by a court or government agency; or
    • 9.1.2.2. the Service Provider reasonably suspects the Vendor of using the Account in connection with any Prohibited Activity; or
    • 9.1.2.3. use of the Vendor Account is subject to any pending litigation, investigation, or government proceeding; or
    • 9.1.2.4. the Service Provider determines that the Account may compromise the Service Provider’s compliance obligations in accordance with the Applicable Laws; or
    • 9.1.2.5. third party service providers and/or licensors to the Service Provider are unable to support the Account.

• 9.2. On the cancellation of the Vendor Account, and subject to the Applicable Laws, any Personal Information provided by the Vendor will be dealt with in accordance with the Service Provider’s privacy policy as set out in ANNEXURE C.

• 9.3. The Vendor may cancel the Vendor Account at any time by initiating a cancellation of the Vendor Account using the functionality provided on the Vendor Account.

• 9.4. Cancellation of the Vendor Account will only be effective if:

  • 9.4.1. any outstanding amounts that may be owed to the Service Provider are paid by the Vendor; and
  • 9.4.2. the Vendor expressly authorises the Service Provider to cancel or suspend any pending Product Listings at the time of cancellation.

10. CONFIDENTIALITY

• 10.1. The Receiving Party is obliged to treat all of the Confidential Information as confidential.

• 10.2. The Receiving Party may use the Confidential Information exclusively in relation to exercising its rights or fulfilling its obligations in terms of these Terms of Service.

• 10.3. The Receiving Party will only disclose Confidential Information to its employees and contractors who:

  • 10.3.1. have a need to access such Confidential Information solely for the purpose referred to in clause 10.2; and
  • 10.3.2. have been advised of the obligations of confidentiality and are under obligations of confidentiality substantially similar to those set out in these Terms of Service.

• 10.4. The Receiving Party will have no obligation to retain as confidential any information which:

  • 10.4.1. was legally in its possession or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party;
  • 10.4.2. is, or subsequently becomes, legally and publicly available without breach of these Terms of Service;
  • 10.4.3. is independently developed by the Receiving Party, which independent development can be shown by written evidence; or
  • 10.4.4. is legally obtained by the Receiving Party from a third party source without any obligation of confidentiality.

• 10.5. Subject to the provisions of clause 10.4, the confidentiality obligations of the Receiving Party will be perpetual and will survive the termination or expiry of these Terms of Service.

• 10.6. The Receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides the Disclosing Party with:

  • 10.6.1. prior written notice of such obligation; and
  • 10.6.2. the opportunity to oppose such disclosure or obtain a protective order.

11. FORCE MAJEURE

• 11.1. If either Party is prevented or restricted directly from carrying out all or any of its obligations under these Terms of Service by a Force Majeure Event, this clause 11 will apply.

• 11.2. If either Party is prevented or delayed in the performance of any of its obligations under these Terms of Service by a Force Majeure Event, that Party will within 1 (one) Business Day of that Party becoming aware of the Force Majeure Event notify the other Party specifying the nature and extent of the circumstances giving rise to the Force Majeure Event.

• 11.3. The affected Party will, subject to service of the notice under clause 11.2 to clause 11.5, have no liability in respect of the performance of such of its obligations as are directly prevented by the Force Majeure Event(s) during the continuation of such event(s), and for such time after they cease as is reasonably necessary for that Party to begin re-performing the affected obligation.

• 11.4. The affected Party will use all reasonable endeavours both to notify the other Party of the end of the Force Majeure Event and to recommence its affected operations as soon as reasonably practicable in order for it to perform its obligations under these Terms of Service.

• 11.5. The affected Party will use all reasonable endeavours to bring the Force Majeure Event(s) to a close or to find a solution by which these Terms of Service may be performed despite the continuance of the Force Majeure Event.

• 11.6. The Parties agree that, should the Force Majeure Event last more than 6 (six) weeks, the Party who has not invoked the provisions of this clause 11 to excuse any non-performance of its obligations may terminate these Terms of Service by giving 10 (ten) days’ written notice to the other Party.

12. PRIVACY

The Service Provider’s privacy policy is set out in ANNEXURE C, and sets out the terms on which the Service Provider may collect, process and use Personal Information, as well as the Service Provider’s full cookie policy.

13. INTELLECTUAL PROPERTY RIGHTS

• 13.1. The Vendor acknowledges and agrees that all right, title and interest in, and to, the Service Provider Intellectual Property is proprietary to the Service Provider and will remain vested in the Service Provider at all times.

• 13.2. The Vendor therefore unconditionally and irrevocably agrees that the Vendor will not at any time or under any circumstances acquire any rights of any nature in respect of the Service Provider Intellectual Property.

14. REPRESENTATIONS AND WARRANTIES

• 14.1. The Service Provider makes no representations or warranties, whether express or implied, and assumes no liability or responsibility for the proper performance of the Services.

• 14.2. Accordingly, the Vendor’s use of the Services is at the Vendor’s own risk.

• 14.3. The Services and all the materials, data, information, software, facilities and other content are provided ‘as is’ and ‘as available’ without warranties of any kind, either expressed or implied. Specifically:

  • 14.3.1. the Service Provider does not warrant that the functions in relation to any Service will be available, uninterrupted or error-free;
  • 14.3.2. the Service Provider does not warrant that any defects in relation to any Service will be corrected;
  • 14.3.3. the Service Provider does not warrant that the Services or the servers that make them available are free of viruses or other harmful components;
  • 14.3.4. the Service Provider does not broker Product Listings on behalf of the Vendor or Visitors; and
  • 14.3.5. all Product Listings are executed automatically, and the Vendor is solely responsible for determining the appropriateness of any Product Listing.

• 14.4. The Vendor warrants to and in favour of the Service Provider that:

  • 14.4.1. the Vendor will not use the Services for any Prohibited Activities;
  • 14.4.2. the Vendor has the legal capacity to agree to and be bound by these Terms of Service;
  • 14.4.3. each Account User is 18 years or older, and is formally employed or contracted by the Vendor;
  • 14.4.4. these Terms of Service constitute a contract that is valid and binding on the Vendor and enforceable against the Vendor by the Service Provider; and
  • 14.4.5. the entering into and implementation of these Terms of Service by the Vendor will be in full compliance with the Applicable Laws.

• 14.5. Each of the warranties given by the Vendor will:

  • 14.5.1. be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Terms of Service; and
  • 14.5.2. continue and remain in force irrespective of whether the Vendor Account is active, suspended or cancelled; and
  • 14.5.3. be deemed to be material.

15. INDEMNITY

The Vendor unconditionally and irrevocably indemnifies and holds the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind (including direct, indirect, special or consequential damages) brought by any third party (including any Visitor), and whether in an action based on contract, negligence or any other action, arising out of or in connection with:

• 15.1. any breach of these Terms of Service by the Vendor, including (without limitation) the breach of any warranty given by the Vendor; or

• 15.2. any dispute between the Vendor and any Visitor.

16. LIMITATION OF LIABILITY, SOLE REMEDY

• 16.1. Subject to clause 16.2, to the extent permitted in terms of the Applicable Laws, under no circumstances whatsoever, will the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) be liable in any manner for any costs, claims, damages, awards, penalties, or other amounts (and expressly including indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind) which may be suffered or incurred by the Vendor (or with which the Vendor has been threatened) arising out of, whether directly or indirectly, the Vendor’s use of the Services.

• 16.2. The limitation on the Service Provider’s liability set out in clause 16.1 will not apply in circumstances of fraud or negligence on the part of the Service Provider.

• 16.3. The Vendor agrees that:

  • 16.3.1. the Vendor’s sole and exclusive remedy for any dispute of any nature with the Service Provider (whether in relation to the Vendor’s use of the Services or otherwise) is to stop using the Services and to immediately cancel the Vendor Account;
  • 16.3.2. the Vendor will have no class-action rights or claims of any nature arising out of any dispute of any nature with the Service Provider (whether in relation to the Vendor’s use of the Services or otherwise).

17. NO ASSIGNMENT

The Vendor will not be entitled to cede its rights or delegate its obligations in terms of these Terms of Service without the express prior written consent of the Service Provider.

18. ADDRESS FOR SERVICE

• 18.1. The Parties choose, as their address for service for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses in clause 1.2.

• 18.2. Any notice or communication required or permitted to be given in terms of this Agreement will be valid and effective only if in writing, which will include giving notice by email.

• 18.3. Any Party may by notice to any other Party, change the physical address chosen as its address for service or its postal address or its e-mail address, provided that the change will become effective on the 7th (seventh) Business Day from the receipt of the notice by the addressee.

• 18.4. Any notice to a Party:

  • 18.4.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen in clause 18.1 to which post is delivered will be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
  • 18.4.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen in clause 18.1 will be deemed to have been received on the day of delivery; or
  • 18.4.3. sent by email to its chosen e-mail address stipulated in clause 18.1 will be deemed to have been received on the date of sending (unless the contrary is proved).

• 18.5. Regardless of anything to the contrary set out in this clause, a written notice or communication actually received by a Party will be an adequate written notice or communication to it, regardless of it not being sent to or delivered at its chosen address.

19. RELATIONSHIP BETWEEN THE PARTIES

The Parties agree that:

• 19.1. no Party is a partner or agent of the any other Party;

• 19.2. no Party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, any other Party; and

• 19.3. these Terms of Service will not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon any Party.

20. GOVERNING LAW AND SUBMISSION TO JURISDICTION

• 20.1. These Terms of Service and any matter arising from these Terms of Service will be governed by and interpreted in accordance with the laws of the Republic of South Africa.

• 20.2. The Parties hereby consent and submit to the exclusive jurisdiction of the Western Cape High Court in respect of any litigation arising in terms of these Terms of Service, subject to the provisions of clause 20.2.

21. DISPUTE RESOLUTION

• 21.1. Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to:

  • 21.1.1. the interpretation of;
  • 21.1.2. the carrying into effect of;
  • 21.1.3. any of the Parties’ rights and obligations arising from;
  • 21.1.4. the termination or purported termination of or arising from the termination of; or
  • 21.1.5. the rectification or proposed rectification of, this Agreement, or out of or pursuant to this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) will be submitted to and decided by arbitration.

• 21.2. That arbitration will be held:

  • 21.2.1. with only the Parties and their representatives present;
  • 21.2.2. at Cape Town.

• 21.3. It is the intention that the arbitration will, where possible, be held and concluded in 21 (twenty one) Business Days after it has been demanded. The Parties will use their best endeavours to procure the expeditious completion of the arbitration.

• 21.4. The arbitration will be subject to the arbitration legislation for the time being in force in the Republic of South Africa.

• 21.5. The arbitrator will be an impartial admitted attorney, whether practising or non-practising, of not less than 10 (ten) years’ standing appointed by the Parties or, failing agreement by the Parties within 14 (fourteen) days after the arbitration has been demanded, at the request of any of the Parties will be nominated by the President for the time being of the Cape Law Society (or its successor body in the Western Cape) following which the Parties will immediately appoint such person as the arbitrator. If that person fails or refuses to make the nomination, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.

• 21.6. The Parties will keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.

• 21.7. The arbitrator will be obliged to give his award in writing fully supported by reasons.

• 21.8. The provisions of this clause 21 are severable from the rest of this Agreement and will remain in effect even if this Agreement is terminated for any reason.

• 21.9. The arbitrator will have the power to give default judgment if any Party fails to make submissions on the due date and/or fails to appear at the arbitration.

• 21.10. The arbitrator’s award will be final and binding on the Parties.

• 21.11. The costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the hearing will be borne by the Parties in equal shares and will be recoverable, as costs in the cause under the provisions of any award. The Parties, together with the arbitrator will agree from time to time on the arbitrator’s remuneration, which will be paid by the Parties in equal shares, upon receipt of invoices.

22. WHOLE AGREEMENT, NO AMENDMENT

• 22.1. These Terms of Service constitutes the whole agreement between the Parties relating to the subject matter of these Terms of Service and supersedes any other discussions, agreements and/or understandings regarding the subject matter of these Terms of Service.

• 22.2. No amendment or consensual cancellation of these Terms of Service, no settlement of any disputes arising under these Terms of Service and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of these Terms of Service will be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party(ies) granting such extension, waiver or relaxation).

23. AMENDMENTS

• 23.1. The Service Provider may amend or modify these Terms of Service by posting on the Platform, and the revised Terms of Service will be effective at such time. Specifically, and without limitation, the Service Provider will be entitled at any time:

  • 23.1.1. to amend the eligibility criteria referred to in clause 3.1; or
  • 23.1.2. to update, amend or change any of the available Services.

• 23.2. If the Vendor does not agree with any such modification, the Vendor must cancel the Vendor Account. Any further use of the Services after such modification by the Vendor will constitute full acceptance by the Vendor of these Terms of Service.

24. GENERAL

• 24.1. Any provision in these Terms of Service which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Terms of Service will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms of Service, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.

• 24.2. No part of these Terms of Service will constitute a stipulation in favour of any person who is not a party to these Terms of Service unless the provision in question expressly provides that it does constitute such a stipulation.

ANNEXURE A – SERVICE PROVIDER DETAILS

The following detail is required in terms of section 43 of the Electronic Communications and Transactions Act, No. 25 of 2002:

1. Service Provider full name and legal status:

   • 1.1. Handy Cats Proprietary Limited, a private company incorporated in South Africa under the Companies Act, No. 71 of 2008.

2. Service Provider physical address and telephone number:

   • 2.1. Physical address: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945
   • 2.2. Telephone number: +27 (0)87 057 5725

3. Service Provider web site address and e-mail address:

   • 3.1. Website: www.campare.co.za.
   • 3.2. Email address: [email protected]

4. Membership of any self-regulatory or accreditation bodies to which the Service Provider belongs or subscribes and the contact details of that body:

   • 4.1. N/A

5. Any code of conduct to which the Service Provider subscribes and how that code of conduct may be accessed electronically by the consumer:

   • 5.1. N/A

6. In the case of a legal person, the Service Provider’s registration number, the names of its office bearers and its place of registration:

   • 6.1. Registration number: 2017/198724/07.
   • 6.2. Place of registration: South Africa
   • 6.3. Director: Robert Bernatzeder.

7. The physical address where the Service Provider will receive legal service of documents:

   • 7.1. Address for service: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945

8. A sufficient description of the main characteristics of the goods or services offered by the Service Provider to enable a consumer to make an informed decision on the proposed electronic transaction:

   • 8.1. See clause 1.2.14 of the Terms of Service.

9. The full price of the goods or services, including transport costs, taxes and any other fees or costs:

   • 9.1. See clause 6 of the Terms of Service.

10. The manner of payment:

    • 10.1. See clause 6 of the Terms of Service.

11. Any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers:

    • 11.1. See full Terms of Service.

12. The time within which the goods will be dispatched or delivered or with in which the services will be rendered:

    • 12.1. See clause 2 of the Terms of Service.

13. The manner and period within which consumers can access and maintain a full record of the transaction:

    • 13.1. See clause 2 of the Terms of Service.

14. The return, exchange and refund policy of the Service Provider:

    • 14.1. N/A.

15. Any alternative dispute resolution code to which the Service Provider subscribes and how the wording of that code may be accessed electronically by the consumer;

    • 15.1. See clause 21 of the Terms of Service.

16. The security procedures and privacy policy of the Service Provider in respect of payment, payment information and personal information:

    • 16.1. See the Privacy Policy in ANNEXURE C to the Terms of Service.

17. Where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently:

    • 17.1. See clause 2 of the Terms of Service.

18. The rights of consumers in terms of section 44, where applicable:

    • 18.1. N/A.

ANNEXURE B – SUBSCRIPTION FEES

The Subscription Fees are due monthly in advance and are set out in the bands (“Subscription Fee Band”) described here, according to the number of Product Listings permitted by that Vendor in a month.

Should the Vendor:

• not use the maximum number of Product Listings permitted pursuant to their Subscription Fee Band, the unused Transactions in that month are forfeited by the Vendor at the end of that month;

• use all of their permitted Product Listings in a month according to their Subscription Fee Band, the Vendor must upgrade to the next Subscription Fee Band to be able to continue entering into Transactions for the remainder of that month.

ANNEXURE C – PRIVACY POLICY

Please see the privacy policy here: Privacy Policy

https://campare.co.za (the “Website”) is owned and operated by Handycats (Pty) Ltd, registration number: 2017/198724/07 (hereinafter referred to as “Campare”).

Visitors to the Website (“Users” or “you”) are bound by this User Agreement (“User Agreement”). If you do not agree to this User Agreement, do not continue to use the Website. Your continued use of the Website will constitute acceptance of the User Agreement unmodified by you. By accepting this User Agreement, you are deemed to have read and agreed with all the provisions thereof.

This User Agreement applies to users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA”) and Electronic Communications and Transactions Act 2002 (“ECT Act”).

Nothing in this User Agreement is intended or must be understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either you or Campare in terms of the CPA or ECT Act.

1. The Campare Services

• 1.1. Campare operates the Website through which all Users are able to compare a range of products (“Goods”) offered for sale by certain third parties (“Merchants”) as regards prices, other product specifications and characteristics.

• 1.2. The Website also provides links to the websites of the Merchants and may include advertising relating to Merchants, other third parties, and their products.

• 1.3. Note that the Merchants and products listed on the Website do not necessarily represent all suppliers of the relevant products, or all products available, in the market, and Campare does not guarantee that the prices, or any other information specified on the Website, are accurate or error-free. It is specifically recorded that product pricing and characteristics are supplied to Campare by the Merchants who have agreed to be listed on the Website. Campare also makes no guarantees as to the content or accuracy of any external websites to which you may be able to link from the Website.Campare shall take all reasonable efforts to accurately reflect the description and purchase price of Goods on the Website. However, should there be any errors of whatsoever nature on the Website (which are not due to our gross negligence), we shall not be liable for any loss, claim or expense relating to a transaction based on any error.

2. Not responsible for Merchants

• 2.1. Campare’s role is limited to providing the platform through which you can view and compare the products offered by different Merchants. In some instances you will be able to follow links through to such Merchants’ websites.

• 2.2. Campare is not an agent of any Merchant, does not vouch for, or make any warranties in relation to, any Merchant or its products. Neither Campare nor any of its agents or representatives shall be liable for any damage, loss or liability of whatsoever nature arising in relation to any Merchant.

• 2.3. Without detracting from the generality of the aforegoing, Campare will not be liable in any way whatsoever in relation to any purchases you may make from any Merchant/s directly. In purchasing products from any Merchant directly, you are contracting with the relevant Merchant to purchase such Merchant’s product/s and the Merchant is thus solely responsible for the fulfilment of all aspects of your purchase from it. You acknowledge that you are solely responsible for evaluating the price, quality and legitimacy of any products listed on the Website and Campare does not guarantee that any Merchant or other party involved in transactions arising from listings or advertisements placed on the Website will act in good faith.

• 2.4. Campare provides a platform to facilitate transactions between Merchants and Campare Users. Campare is neither the buyer nor the seller of these Goods. The Sale formed on acceptance of your order for Goods that are for sale by a Merchant is therefore solely between you and such Merchant. Campare is not a party to that sale. The Merchant is solely responsible for fulfilment of the Goods.

• 2.5. As Campare strives to ensure that the information on the Website relating to any Merchant or its products is accurate, up-to-date, and lawful, should you suspect that a Merchant is selling illegal products, conducting fraudulent activity, using bait marketing or otherwise misleading Users in any way, please notify Campare thereof by using the Contact Form. so that Campare can take such measures as it deems appropriate.

3. Disclaimer

• 3.1. Campare makes no representations or warranties of any nature whatsoever in relation to the Website and/or Services, implied or otherwise, including any warranty that the Website or the server that makes the Website available is free from viruses or other harmful components, or that the functions, content and technology available from the Website are uninterrupted and/or error free. Campare may suspend access to the Website without notice at any time and accepts no liability for any consequences of the Website being unavailable for any reason.

• 3.2. Information, ideas and opinions expressed on this Website should not be regarded as professional advice or the official opinion of Campare and you are encouraged to consult professional advice before taking any course of action related to information, ideas or opinions expressed on this Website.

• 3.3. All risk and liability arising from your use of the Website vests with you and neither Campare nor any of its agents or representatives shall be liable for any damage, loss or liability of whatsoever nature arising from the use or inability to use this Website or the services or content provided from and through this Website, including any harm to your computer from viruses, or damages suffered due to the Website being unavailable for any reason. You are encouraged to report any possible malfunctions and errors to us by through the Contact Form.

• 3.4. This Website is supplied on an “as is” basis, has not been compiled or supplied to meet your individual requirements, and Campare is not liable for anything you find on the WebSite or any liability you incur through your use of the Services. It is your sole responsibility to satisfy yourself that the service available from and through this Website will meet your individual requirements and be compatible with your hardware and/or software.

• 3.5. If Campare is found, despite the aforegoing disclaimers, to be liable for any reason, its liability to you or any third party concerned (whether in contract, delict, negligence, strict liability, by statute or otherwise) is limited to ZAR500 (five hundred South African Rand). Also, under no circumstances will Campare be liable for any indirect or special damages, consequential loss, loss of profits or loss of data.

4. Your indemnification of Campare

• 4.1. You hereby indemnify and hold harmless each of Campare, its parent, subsidiaries, affiliates, officers, directors and employees, against any and all loss, expense or damage they may suffer, or third party claims which may be made against them, which arise (directly or indirectly) from or in relation to your conduct on the Website or your failure to comply with this User Agreement (including the Privacy Policy), or your violation of any law or the rights of a third party relating to your use of the Website.

5. Intellectual Property Rights

• 5.1. Any and all copyright subsisting in the Website, including this User Agreement, vests in Campare and all rights not expressly granted are reserved.

• 5.2. All the content, trademarks and data on this Website, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, designs and agreements, are the property of or licensed to Campare and as such are protected from infringement by local and international legislation and treaties. Note that the Website may contain images, names, codes or other content that constitute the trademarks, logos, or copyrighted material owned by Merchants or other third parties and you may not copy or use the same without their permission.

• 5.3. You may only download, view and print content from this Website for private and non-commercial purposes only.

6. Content & Minors

• 6.1. Campare not liable: Campare cannot screen or edit all the content available from the Website and does not accept any liability for illegal, defamatory or obscene content. You are encouraged to inform Campare of any content that may be offensive or illegal. Hyperlinks provided on this Website to other websites are provided as is and Campare does not necessarily agree with, edit or sponsor the content on such web pages.

• 6.2. Minors: There is no age limit on our Users as our Website is not an adult website. However, certain products listed by certain Merchants may be only legally be purchased by persons over the age of 18 years, and Campare will not be liable in any way in relation to minors viewing any of these product listings on the Website, or subsequently purchasing any of these products listed on the Website (either because the Website directly linked to the relevant Merchant site, or because the Merchant’s name or contact details were listed on the Website).

• 6.3. Use of Advertiser content: The Advertiser, in agreeing to this Terms and Conditions, hereby consents to the royalty free use by Campare, of all copyright vesting in and relating to product information that is lawfully and freely available to the public, including information appearing on the Advertiser’s website, including, but not limited to, product descriptions, photographs and illustrations, which may be classified as literary works or artistic works in terms of section1(1) of the Copyright Act 98 of 1978, for the purpose of advertising the Advertiser’s products on Campare’s website, https://campare.co.za.

7. Privacy

• 7.1. Campare respects your privacy, takes reasonable steps to protect your personal information, and will not disclose your personal information to third parties for marketing purposes without your consent. Please read our Privacy Policy as to our respective rights and obligations in this regard. If you are not satisfied with the level of privacy we provide or otherwise disagree with anything in the Privacy Policy, then you are deemed to not accept this User Agreement and you should not register for a User Account or otherwise use the Website.

8. Security

• 8.1. Any person that delivers or attempts to deliver any damaging code to this Website or attempts to gain unauthorised access to any page on this Website shall be prosecuted and civil damages shall be claimed in the event that Campare suffers any damage or loss.

• 8.2. You allow Campare to take all reasonable steps to ensure the integrity and security of the Website and back-office applications.

9. Prohibited Conduct

• 9.1. Hyperlinks, Framing, spiders and crawlers: No person, business or web site may link to any page on this Website, or use any technology to search and gain information from the Website, without the prior written permission of Campare. Such permission could be obtained by contacting Campare through the Contact Form. In addition, no person, business or web site may:
  • 9.1.1. use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index the Website or any Website content;
  • 9.1.2. reformat or frame this site or any of the pages on this Website in any way whatsoever.

10. General

• 10.1. You agree to use the Website in accordance with this User Agreement and all applicable laws, regulations and ordinances. In particular, you undertake not to engage in any of the following prohibited conduct in using the Website:

  • 10.1.1. threatening, stalking, defrauding, inciting, harassing, or advocating the harassment of another person, User or Merchant, or otherwise interfering with another person’s use of the Website;
  • 10.1.2. submitting false, inaccurate or misleading information on the Website or conducting yourself in a false, inaccurate or misleading fashion;
  • 10.1.3. conducting fraudulent activities;
  • 10.1.4. delivering or attempting to deliver any damaging code to this Website or attempting to gain unauthorised access to any page on this Website
  • 10.1.5. tampering, hacking, modifying or otherwise corrupting the security or functionality of the Website;
  • 10.1.6 posting spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
  • 10.1.7. keyword spamming or otherwise attempting to manipulate search results;
  • 10.1.8. promoting bigotry or discrimination;
  • 10.1.9. violating any third-party right, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
  • 10.1.10. being defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
  • 10.1.11. transmitting or posting profanity, adult content or illegal content, such as child pornography;
  • 10.1.12. soliciting personal information from minors or to harm or threaten to cause harm to minors;
  • 10.1.13. modifying, adapting, appropriating, reproducing, distributing, translating, creating derivative works or adaptations of, publicly displaying, selling, trading, or in any way exploiting the Website or Website content, except as expressly authorised by Campare;
  • 10.1.14. reverse engineering any portion of the Website;
  • 10.1.15. removing or modifying any copyright, trademark or other proprietary rights notice on the Website or on any materials printed or copied off of the Website;
  • 10.1.16. recording, processing, or mining information about other Users or Merchants;
  • 10.1.17. accessing, retrieving or indexing the Website to construct or populate a searchable database of business listings or reviews;
  • 10.1.18. taking any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on Campare’s technology infrastructure;
  • 10.1.19. attempting to gain unauthorised access to the Website, computer systems or networks connected to the Website through hacking, password mining or any other means;
  • 10.1.20. using the Website or any Website content to transmit any computer viruses, worms, defects, Trojan horses, time bombs, cancelbots, easter eggs or other computer programming routines or items of a destructive nature in that they may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information;
  • 10.1.21. using any device, software or routine that interferes with the proper working of the Website, or otherwise attempting to interfere with the proper working of the Website;
  • 10.1.22. making excessive traffic demands;
  • 10.1.23. violating the security of any computer network, crack passwords or security encryption codes; disrupt or interfering with the security of, or otherwise causing harm to, the Website or Website content;
  • 10.1.24. removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Website, features that prevent or restrict the use or copying of Website content, or features that enforce limitations on the use of the Website;
  • 10.1.25. doing anything which may render Campare liable to anyone, or cause Campare to lose (in whole or in part) the services of our ISP’s or other suppliers.

• 10.2. You acknowledge that if you use the Website in a manner that violates the aforegoing provisions, Campare may incur liability and/or suffer damages and accordingly in the event of any such violation, your access to the Website will be subject to limitation, suspension or immediate termination; you will be subject to damages and other penalties, including criminal prosecution where applicable; and you will be held liable to Campare for any and all damages suffered by Campare including any attorney’s fees on an attorney and own-client scale) and, without limiting the generality of the aforegoing, you shall reimburse Campare for any and all costs, expenses, and fines levied on it by third parties as a result of your activities.

11. Term and Termination

• 11.1. This User Agreement shall commence from the date on which it is published on the Website and continue indefinitely, as amended by Campare from time to time, for so long as the Website exists and is operational, Campare being entitled to terminate this User Agreement and/or shut down the Website at any time.

12. Changes to this User Agreement

• 12.1. Campare may, in its sole discretion, change this User Agreement or any part thereof at any time with or without notice. It is your responsibility to visit the Website to see whether the User Agreement has been amended and ensure that you are satisfied with the amendments. Should you not be satisfied with the amendments, you must refrain from using in any way, the Website.

13. Governing Law and Jurisdiction

• 13.1. This Website is hosted, controlled and operated from the Republic of South Africa and therefore governed by South African law and, subject to the ‘Disputes’ clause of this User Agreement, you and Campare submit to the non-exclusive jurisdiction of the South African courts.

14. Disputes

• 14.1. Save for urgent or interim relief which may be granted by a competent court, in the event of any dispute of any nature whatsoever arising between you and Campare on any matter provided for in, or arising out of this User Agreement or your use of the Website, then such a dispute shall be submitted to confidential arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa. Arbitration proceedings shall be conducted in Cape Town in English. The expedited arbitration rules may be downloaded from here

• 14.2. Note that Campare will not be involved in any disputes between you and a Merchant. Campare is not your, or any Merchant’s agent and will not act as either of your agent in connection with resolving any disputes between the two of you.

15. Domicile

• 15.1. Campare chooses as its domicilium citandi et executandi (i.e. its address) for all purposes under this User Agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature, the following address: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945, South Africa.

16. Electronic Communications

• 16.1. When you visit the Website or send e-mails to Campare, you consent to receiving communications from Campare electronically and agree that all agreements, notices, disclosures and other communications sent by Campare satisfy any legal requirements, including but not limited to the requirement that such communications should be “in writing”.

17. Information

• 17.1. As required by the Electronic Communications and Transactions Act, Campare’s information is as follows:
  • Full name: Handy Cats (Pty) Ltd, registered in South Africa, registration number 2017/198724/07
  • Main business: Software development and provision of digital marketing services
  • Address: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945, South Africa
  • Office bearers: R A Bernatzeder
  • Website: https://campare.co.za
  • Official email address: [email protected]