Last updated: 16 November 2020
These General Terms and Conditions (“Terms and Conditions“) govern your (“User“) use of the eCreate (Pty) Ltd (“Provider“) website on which this document is located (“Website“) and using all services provided therein (“Services”). By accessing and using the Website or Services, the User agrees to be bound by the Terms and Conditions set out in this legal notice.
1 Eligibility and agreement
1.1 The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms and Conditions. The User therefore represent and warrants that it:
(1) is of legal age to form a binding contract (i.e. at least 18 years old);
(2) has not previously been suspended or removed from using the Website or Services; and
(3) has full power and authority to agree to these Terms and Conditions.
1.2 Where the User is a juristic person (“Entity”), the User represents and warrants that it is acting with all necessary authorization of the Entity.
1.3 The User may not use the Website or Services if the User is located in, or is a citizen or resident of any state, country, territory or other jurisdiction where the User’s use of the Website or Services would be illegal or otherwise violate any applicable law. The User therefore represents and warrants that it is not a citizen or resident of any such jurisdiction and that it will not use the Website or Services while located in any such jurisdiction.
1.4 Where The Provider has determined, in its sole and absolute discretion, to prohibit use of the Website or Services in any particular jurisdiction whether through updating these Terms and Conditions or through the implementation of controls or restrictions to prevent or limit the availability of the Website or the Services in that jurisdiction, the User may not use the Website or Services from that jurisdiction or, where it is a resident or citizen of that jurisdiction, make use of the Website or Service through use of any technology, process or mechanism which would bypass any controls so implemented by the Provider.
1.5 If the User does not agree to be legally bound by these Terms and Conditions, the User must not use the Website or Services. If the User makes use of the Website or Services, it agrees to do so in compliance with these Terms and Conditions in line with any laws and regulations applicable to the User, the Website and/or the Services.
2 Identity verification
2.1 The Provider may, in its sole and absolute discretion, require identity verification and other screening procedures with respect to the User and its use of the Website and/or Services.
2.2 These verification and screening procedures may include, without limitation, checking the information the User provides against any list issued by any governmental or international authority prohibiting or limiting business activities or transactions with any persons.
2.3 The User may be required to provide the Provider with certain personal information, including, but not limited to, its name, residential address, telephone number, email address, date of birth, taxpayer identification number, government identification number, government-issued ID or other photographic proof of the User’s identity, information regarding its business, and information regarding any bank account associated with the User’s use of the Website and/or Services.
2.4 The User hereby authorize the Provider, directly or through a third party, to make any inquiries the Provider considers necessary to verify the User’s identity or protect against fraud, including but not limited to:
(1) query identity information contained in public reports (e.g., name, address, past addresses, or date of birth);
(2) query account information associated with the linked bank account (e.g., name or account balance); and
(3) take action the Provider reasonably deems necessary based on the results of such inquiries and reports.
2.5 The User further authorizes all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests.
2.6 The Provider will have no liability or responsibility for any permanent or temporary inability by the User to access or use any Services, including the User’s inability to interact with service providers through the Website, as a result of any identity verification or other screening procedures.
4 Unacceptable use or conduct.
4.1 The User will not:
(1) violate any law, regulation, contract, intellectual property or other third party right, or commit a delict while using the Website or Services;
(2) use the Website or Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Website or Services, or that could damage, disable, overburden, or impair the functioning of the Website or Services in any manner;
(3) use the Website or Services to pay for, support, or otherwise engage in any illegal gambling activities, fraud, money-laundering, or terrorist activities, or any other illegal activities;
(4) use any robot, spider, crawler, scraper, or other automated means or interface with the use of, access to or availability of the Website or Services or to extract any data therefrom;
(5) attempt to circumvent any content filtering techniques employed by the Provider, or attempt to access any service or area of the Website or Services that the User is not authorized to access;
(6) introduce to the Website or Services any malware, virus, trojan worms, logic bombs, or other harmful material;
(7) develop any third party applications that interact with the Website or Services without the prior written consent, or agreement of the Provider;
(8) provide false, inaccurate, or misleading information;
(9) post content or communications that are, in the Provider’s sole discretion, libellous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
(10) post content containing unsolicited promotions, political campaigning, or commercial messages (spam) or any chain messages or user content designed to deceive or trick the user of the Website or Services;
(11) post content containing private information of any third party including, but not limited to, addresses, phone numbers, email addresses, identification numbers and credit card numbers; or
(12) encourage or induce any third party to engage in any of the activities prohibited under these Terms and Conditions.
4.2 The Provider reserves the right to temporarily or permanently suspend any User’s access to the Website or Services or otherwise restrict any use of the Website or Services relating to any person who acts in contravention of these Terms and Conditions or where the Provider has any reasonable suspicion of such contravention.
4.3 If the User is blocked by the Provider from accessing the Website or Services (including by blockage of the User’s IP address), the User agrees not to implement any measures to circumvent such blocking (e.g., by masking its IP address or using a proxy IP address).
5 Authorized use of the Website and Services.
5.1 The User is permitted to use the Website and the Services, only as authorized by these Terms and Conditions.
5.2 If the User is an Entity, it is responsible for ensuring that only authorized persons use the Website or Services on its behalf, and the User agrees that any person purporting to act in the name of an Entity can be assumed by the Provider to be authorized by such Entity.
5.3 The Provider has no responsibility for any loss that the User suffers as a result of failing to comply with these Terms and Conditions, the User’s failure to follow or implement reasonable security policies or infrastructure or the User’s failure to follow or act on any notices or alerts that the Provider may send to the User.
6 Updating of these Terms and Conditions
6.1 The Provider reserves the right to update, change, modify, add to or remove from these Terms and Conditions or replace these Terms and Conditions in their entirety from time to time. Any changes to these Terms and Conditions will be made available on the Website with an amended “Last updated” date above. Any change to these Terms and Conditions will become effective 7 days after such change being posted on the Website. Despite notice being sent, or not being sent, to the User via the email address it may provide to the Provider, it is the User’s responsibility to periodically check these Terms and Conditions on the Website for changes or updates. The User’s continued use of this Website and/or Services following the posting of changes or updates will be considered notice of the User’s acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.
7 Continuity of Services.
7.1 The Website and Services may evolve over time. This means that the Provider may make changes, replace, or discontinue (temporarily or permanently) any of the Services or even the Website as a whole at any time for any reason with or without notice to the User. In this case, the User may be prevented from accessing or using the Website and/or Services.
8 Copyright and intellectual property rights
8.1 The Provider and any of its contractors and/or licensors (“Owners”) retain all right, title, and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in the Website and Services and all content on the Website and Services, including trademarks, service marks, designs, logos, URLs, trade names, articles and content that are displayed on the Website and Service (“IP”).
8.2 The Owners hereby grant the User a limited, nonexclusive, and non-sublicensable license to access and use the IP for the User’s personal or internal business use. Such license is subject to these Terms and Conditions and does not permit any resale of the IP; the distribution, public performance or public display of any of the IP; modifying or otherwise making any derivative uses of the IP, or any portion thereof; framing or use of framing technologies to enclose the Website or the Services nor any part thereof; or any use of the IP other than for their intended purposes without the express written consent of the Provider.
8.3 The license granted hereby will automatically terminate if the Provider suspends or terminates the User’s access to the Website or Services.
8.4 The User may not use, copy or retransmit anything on the Website or through the Services without the Provider’s written permission.
8.5 The Owners will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas or other information or materials regarding the Provider, its Website or the Services that the User provides, whether by email, posting through the Services or otherwise (“Feedback”). Any Feedback the User submits is non-confidential and will become the sole property of the Provider. The Provider will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to the User.
8.6 The Provider reserve all rights not expressly granted herein.
9 Third party content
9.1 The Provider may provide information about third party products, services, activities or events, or may allow third parties to make their content and information available on or through the Website or Services (“Third Party Content”). The Provider provides Third Party Content as a service to those interested in such content. The User’s dealings or correspondence with third parties and its use of or interaction with any Third Party Content are solely between the User and the third party. The Provider does not control or endorse, and makes no representations or warranties regarding, any Third Party Content, and the User’s access to and use of such Third Party Content is at the User’s own risk.
10 Electronic Communications
10.1 By using the Website or Services or communicating with the Provider by electronic means, the User consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be in writing.
11 Disclaimer of warranties
11.1 THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND.
11.2 The User’s use of the Website and Services is at the User’s sole risk. The Provider, its licensors, service providers or subcontractors (if any) make no representations or warranties about the suitability of the information, software, products and services contained on the Website or in the Services for any purpose or their compliance with any accounting rules, principles or laws, and expressly disclaim any representation or warranty that the Website or Services will be free from errors, viruses or other harmful components, that communications to or from or information used on the Website or Services will be secure and not intercepted, that the Website and other capabilities offered from the Website or Services will be uninterrupted, or that their content will be accurate, complete or timely.
11.3 EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, THE PROVIDER DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE USER ACKNOWLEDGES THAT THE USER HAS NOT ENTERED INTO THIS RELATIONSHIP OR USED THE WEBSITE OR SERVICES IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS.
11.4 Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not be applicable in that jurisdiction.
12 No advice
12.1 The Provider is not acting and cannot act as an advisor, including as to any financial, legal, investment, insurance and/or tax matters. Any information provided by the Provider is for general information only. The User is solely responsible for determining whether any contemplated transaction is appropriate for the User and its risk appetite.
13 Compliance with law; taxes
13.1 The User is responsible for complying with all applicable laws related to its activities and other use of the Website and/or Services, including without limitation any reporting obligations and payment of all applicable taxes.
14.1 The User agrees to indemnify, defend and hold the Provider, its employees, agents, contractors, consultants, subsidiaries, partners, affiliates, and licensors, harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) arising from or in any way related to the User’s use of the Website or Services, the User’s violation of these Terms and Conditions, the User’s violation or contravention of any applicable law or regulation, or the User’s violation of any rights of any other person or entity.
15 LIMITATION OF LIABILITY
15.1 IN NO EVENT WILL THE PROVIDER, ITS EMPLOYEES, AGENTS, CONSULTANTS LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS (IF ANY) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR THE PERFORMANCE OR OPERATION OF THE WEBSITE AND/OR THE SERVICES, THE USER’S ACCESS TO, DISPLAY OF, USE OF THE SERVICES, OR WITH DELAY OR INABILITY TO ACCESS, DISPLAY OR USE THE WEBSITE AND/OR THE SERVICES, ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, LINKED SITES, PRODUCTS OR SERVICES OBTAINED THROUGH THE WEBSITE OR SERVICES, OR THE ACT OR OMISSION OF ANY BUSINESS USING THE PROVIDER’S SERVICES OR OTHER THIRD PARTY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PROVIDER, ITS EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, SERVICE PROVIDERS OR SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE PROVIDER, ITS EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, SERVICE PROVIDERS, OR SUBCONTRACTORS FOR ANY LOSS OR DAMAGE THAT ARISES OUT OF, OR IS CONNECTED WITH, ANY OF THE OCCURRENCES DESCRIBED ABOVE EXCEED THE GREATER OF ZAR100 OR THE SERVICE FEES THAT THE USER PAID TO THE PROVIDER FOR USE OF THE WEBSITE OR SERVICES DURING THE MONTH DURING WHICH THE INCIDENT OCCURRED. THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THESE TERMS AND CONDITIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15.3 THE LIMITATIONS OF LIABILITY PROVIDED IN THESE TERMS AND CONDITIONS INURE TO THE BENEFIT OF THE PROVIDER, ITS EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, SERVICE PROVIDERS AND SUBCONTRACTORS.
15.4 SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO THE USER AND THE PROVIDER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.1 To the fullest extent permitted by applicable law, the User releases the Provider, its employees, agents, consultants, licensors, service providers, or subcontractors from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
17 Choice of law and arbitration
17.1 PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES THE USER TO ARBITRATE DISPUTES WITH THE PROVIDER AND IT LIMITS THE MANNER IN WHICH THE USER CAN SEEK RELIEF.
17.3 ARBITRATION PREVENTS THE USER FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
17.4 The tribunal shall consist of a single arbitrator nominated by the Provider.
17.5 The seat of arbitration shall be Johannesburg, South Africa.
17.6 The language of the arbitration shall be English.
17.7 Unless otherwise ordered by the arbitrator, the parties shall bear the costs of the arbitrator, the arbitration venue and the recording of the proceedings in equal proportions and shall otherwise be responsible for their own costs.
17.8 Any dispute between the parties will be governed by these Terms and Conditions and the laws of England and Wales, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
17.9 WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, THE USER AND PROVIDER WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
17.10 The arbitrator, the Provider, and the User will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
17.11 Any claim arising out of or related to these Terms and Conditions or the Website or Services must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that the User and the Provider will not have the right to assert the claim.
17.12 If any portion of this section is found to be unenforceable or unlawful for any reason:
(1) the unenforceable or unlawful provision shall be severed from these Terms and Conditions;
(2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this section; and
(3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
17.13 Further, if any part of this section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable.
18 Revisions and errors
18.1 The materials appearing on the Provider’s Websites or associated Services could include technical, typographical, or photographic errors. The Provider does not warrant that any of the materials on such Websites or in such Services are accurate, complete, or current. The Provider may make changes to the materials contained on such Website or in such Services at any time without notice. The Provider does not, however, make any commitment to update the materials.
19.1 Unless specified differently in any particular provision, if any of the provisions of these Terms and Conditions are found by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect.
20 No waiver
20.1 No failure on the part of the Provider to exercise or enforce any right or provision of these Terms and Conditions or indulgence in favour of the User will constitute a waiver of that right or provision.
21.1 The Provider may assign these Terms and Conditions to its parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets.
22 Entire agreement
22.1 These Terms and Conditions, together with any other agreements that apply to the User constitute the entire and exclusive agreement between the parties regarding its subject matter, and supersede and replace any previous or contemporaneous written or oral contract, warranty, representation or understanding regarding its subject matter.