Merchant Terms and Conditions

  1. Introduction

    1. www.pricecheck.co.za ("our Website") as well as m.pricecheck.co.za and touch.pricecheck.co.za ("our Mobi Sites") (each hereinafter referred to as "our Site") are price comparison sites owned and operated by PriceCheck (Pty) Ltd, registration number: 2007/013797/07 (hereinafter referred to as "PriceCheck", "us", "our", or "we"). Our Site enables all users thereof ("Users") to search for and compare the products and/or services of third parties who have registered with us for this purpose "you" or "your" as the context may indicate).
    2. This PriceCheck Merchant Agreement, as amended from time to time, (including the Privacy Policy and other policies or documents incorporated herein by reference) ("this Agreement") applies to all the services provided by us to Merchants from time to time (collectively, the "Services"). Before you register to become a Merchant you must read, agree with, and accept all of the terms and conditions contained in this Agreement. If you do not agree with all the provisions of this Agreement, you may not register for a Merchant Account and/or use the Services. By completing the registration process, you are deemed to have read and agreed to all the terms of this Agreement, including the disclaimer provisions in clause 16 below.
  2. Merchant Eligibility

    1. In order to use any of the Services and become a Merchant, you must lawfully market and/or sell your own products and/or services ("Products"), targeting the South African market, via a website and/or mobi-site ("Merchant Site") and/or bricks and mortar store ("Merchant Shop") which you own and operate.
    2. In order to use any of the Services you must register for a Merchant account ("Merchant Account") which enables you to access the Merchant platform within our Website ("Merchant Platform") via which you can access the Services.
    3. Note that we are not obliged to accept your registration application and reserve the right not to enter into this Agreement with you as we may reasonably deem fit. (Reasons for any such refusal could include for example that you have previously been suspended from our Services or you pose an unacceptable level of risk for PriceCheck.)
  3. Commencement & Duration

    1. This Agreement will commence upon our acceptance of your registration application and will endure indefinitely, subject to termination in accordance with the provisions of this Agreement.
    2. You acknowledge that you will remain bound by this Agreement (as may be amended from time to time in terms of clause 10 below) for as long as you use any of the Services. This Agreement will terminate automatically and simultaneously with the termination for any reason of the Services provided to you by us.
    3. The expiration or termination of this Agreement shall not affect such of the provisions of the Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this. In particular, but without limiting the generality of the aforegoing, clauses 11, 15.3, 16, 17 and 18 to 21 will survive any termination of this Agreement.
  4. The Services

    1. Inclusion of your Feed in our Sites: You will supply us with details of all the Products marketed or offered for sale by you on your Merchant Site and/or Merchant Shop via an xml feed having the specification determined by us from time to time ("Feed"). Such Feed must either be dynamically generated (typical of a normal server-side script) or if static, be generated on a daily basis. The Feed will be included in all our Sites, within the existing listing categories on, and existing site structure of, our Sites. We will host and maintain the Feed API at our cost as part of our Site. We specifically disclaim any warranty regarding the rank, location and prominence of any of your Product listings anywhere on any of our Sites. We reserve the right to determine whether and where your Product listings will be displayed in response to any given search, and we do not guarantee any specific placement on our Sites. We reserve the right to remove any Product listing (or any part thereof) at any time, on reasonable grounds, for any breach of this Agreement or infringement of any third party rights.
    2. Links to your Merchant Site: Should a User click on any Product listing within the Feed, the listing will include a hyperlink to the relevant page on your Merchant Site for such Product. From our Website, Users will be redirected to your website and from our Mobi-Site, Users will be redirected to your mobi-site. If you do not have a mobi-site, we will redirect our Mobi Site Users to your normal website, alternatively, you can subscribe to our additional service in terms of which we provide you with a basic 'QikCart' mobi site for this purpose. Our 'QikCart' mobi site service can also be used if you have no Merchant Site at all. For details on this optional service, see clause 18 below. Note that although we are responsible for creating and maintaining such hyperlink, you are responsible for creating and maintaining the contents of the Feed and for ensuring that it is at all times up to date.
    3. User reviews and comments: Registered Users will be able to review your Products and post comments in relation to your Products (in the form of text, photographs and/or otherwise) and you acknowledge that such reviews and comments could be positive or negative, but that such reviews and comments are those of our registered Users, submitted by them directly, and don't reflect our views, and the ratings given to any Merchants or their products are calculated based on rating submissions made by our registered Users and are not determined by us. We will not be liable in any way in relation to such comments and reviews. Should you feel that any comments or reviews are false or unduly prejudicial to you, please contact us, in which case we may, but shall not be obliged to, investigate the matter further and take such action as we may deem fit.
    4. Premium Listings and Ads: You may from time to time, for an additional fee, be able to purchase 'featured offer' advertising space on our Site for one or more of your Products, or to appear as a premium listing in Users' search results.
    5. Reporting: We will provide you with reports on your popular products, and the number of total clicks received (monthly and annually) on your products. These reports can be viewed any time on the Merchant Platform and we will mail you a more detailed report showing views, clicks and product popularity on a regular basis.
  5. Your Feed Content

    1. You must ensure that the content of your Feed is at all times legal, accurate, relevant, comprehensive, and up to date. To this end, you shall also update the content of your Merchant Site on a regular basis to ensure it contains complete and accurate information, including your contact information (such as your full names, registration number, contact numbers and email addresses etc). You may not at any stage impersonate someone else. Products must also at all times be legal.
    2. The Product prices in your Feed must be expressed in ZAR, inclusive of VAT, alternatively, very clearly state that the price is exclusive of VAT.
    3. You acknowledge that you are solely responsible for the content you provide to us and you warrant that the Feed will not contain any material which is unlawful, obscene, abusive, harassing, vulgar, offensive, intimidating, pornographic, defamatory, or which constitutes bait marketing, or which does or reasonably could have a negative impact on our reputation or infringe upon any third parties' rights whatsoever (including but not limited to intellectual property rights, rights to privacy, rights of ownership of names, copyright, brand names and all other rights relevant to competition, and to the use of any domain names protected by law). You further hereby indemnify us and hold us harmless against any and all loss, expense, or damages suffered, or any third party claims made against us arising from or in relation to a breach by you of the aforesaid warranty.
    4. Adult material: There is no age limit on our Users as our Site is not an adult website. You must thus ensure that any Adult Material which may be contained within your Feed, or on your Merchant Site or any other website or webpages accessible via the links in your Product listings, are used responsibly and are not accessible to persons under the age of 18 years. We will not be liable in any way in relation to minors viewing any adult-only Product or subsequently purchasing adult-only Products listed on your Merchant Site or Merchant Shop (either because the Site directly linked to your Merchant Site or because your name or contact details were listed on our Site). However, we reserve the right to take such measures as we consider necessary to ensure that Adult Material is not accessible to persons under the age of 18 years. For purposes of this clause, PriceCheck considers "Adult Material" to include (a) any site where the revenue generated by such site is gained in part or whole from its adult content; (b) photos or videos showing frontal nudity on either men or women for non-scientific or non-artistic purposes; and (c) photos or videos showing graphic violence or death.
    5. Without detracting from the generality of the aforegoing or your obligations under the 'Prohibited Conduct' section below, as a Merchant, anything you include in your Feed or otherwise post/upload to the Site must be strictly relevant to you or your Products. Also, you may not post/publish any pornographic or offensive material, or material which you do not have the right to distribute. By uploading any media/content to the Site (via your Feed or otherwise), you warrant that you own the copyright therein or have the permission of the copyright owner to publish such content on the Site and that such content does not otherwise violate this Agreement.
    6. We have the absolute right to reject any content that is illegal, offensive or otherwise in breach of this Agreement. If you refuse to remove any content deemed objectionable by us, we may terminate the Service without further notification and you shall be liable for any fees and charges up to the date of such termination.
  6. Fees & Other Charges

    1. Fees: There are no upfront fees for registering as a Merchant. We only charge you a pay-per-click fee ("PPC Fee") in respect of each redirection of a User from our Site to your Merchant Site. The minimum PPC Fee is currently R1.30 (excluding VAT). However, because our Merchants compete for clicks and exposure on our Site, we give greater exposure to those Merchants who have elected to pay higher PPC Fees. You are entitled to determine the higher PPC Fee you wish to pay from time to time by giving us prior notice thereof at info@pricecheck.co.za. We are entitled to increase or vary any of our Fees (including the aforesaid minimum PPC Fee) from time to time, provided we notify you thereof via email at least 30 days prior to the fee adjustment being implemented. We also reserve the right to come to other payment arrangements on a case-by-case basis.
    2. Payment: All Fees are payable in advance. Your advance payments may be made in such amounts and at such intervals as you may decide and will be reflected as credits on your account. As Fees become due, they shall be deduced from the balance in your account. Should the Fees payable serve to deplete the balance in your account at any stage, then the Services will be suspended until you make another payment into your account to cover future Fees.
    3. Taxes: Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with the Services. If we have the legal obligation to pay or collect Taxes for which you are responsible the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, we remain solely responsible for taxes assessable against it based on our income, property and employees.
    4. No Set-off or Deductions: You are not entitled to withhold any payment of any Fees due to us by reason of any alleged breach of this Agreement or for any other reason whatsoever. In addition, you may not apply set-off to or demand any discount, rebate or reduction in respect of any Fees owed to us.
    5. A certificate signed by either the General Manager or Financial Manager of PriceCheck, whose appointment, qualification and authority need not be proved, shall be prima facie proof of the amount in Fees due and payable by you at any time.
    6. Payment Defaults: Should you fail to pay any amount to us on the due date for payment therefore, then we may, without prejudice to any of its other rights in law or under the Agreement: (a) charge interest at the rate of 2% above the prime overdraft rate published by our bankers from time to time on the overdue amount, calculated from the due date until the date of payment (both dates inclusive), and capitalized monthly; and/or (b) deactivate your Feed and/or the links from our Site to your Merchant Site (or QikCart mobi site) (c) take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation the use of debt collection mechanisms; and/or (d) recover from you any additional expenditure incurred by us relating to the tracing and/or collection of unpaid amounts, which costs shall be for your account.
    7. Billing Complaints: You may direct any billing or account complaint to us at info@pricecheck.co.za.
  7. Relationship with Users

    1. PriceCheck's role is limited to providing the platform through which you can promote your Products to our Users. Our Service is limited to displaying your Product listings on our Sites (where relevant to a User's search request), and directing Users to your Merchant Site (and/or QikCart mobi site) via the link incorporated within your Product listing. However, once a User has been so redirected to you via the link, it becomes your potential customer, and you are solely responsible for all follow-up action with such person, including responding to his/her queries, or accepting his/her order which may be placed on your Merchant Site.
    2. In order to protect PriceCheck's reputation, you hereby warrant to and in favour of PriceCheck that in the conduct of your business, and in the performance of your obligations under this Agreement, you will at all times comply with the Consumer Protection Act 68 of 2008, Electronic Communications and Transactions Act 25 of 2002, and any other laws which my be applicable ( as may be amended from time to time) and hereby indemnify PriceCheck against any and all loss, damage, or expense suffered by us, or any third party claims which may be made against us, which arise from or in relation to a breach of the aforesaid warranty.
    3. We are not an agent of any User, do not make any warranties in relation to such persons, and neither we nor any of our agents or representatives shall be liable for any damage, loss or liability of whatsoever nature arising in relation to any User. Without detracting from the generality of the aforegoing, we will not be liable in any way whatsoever in relation to any sales you may conclude with any User. In selling any products and/or services to any User, you are contracting with the relevant User and such User is solely responsible for the fulfilment of all aspects of his/her/its purchase from you. We do not guarantee that any User or any other party involved in transactions arising from your listings or advertisements placed on the Site will act in good faith.
    4. Should you suspect that any User is conducting fraudulent activity or otherwise misleading other Users in any way, please notify us thereof at info@pricecheck.co.za so that we can take such measures as we deem appropriate.
  8. Your Information

    1. Your Information: When registering for and maintaining a Merchant Account, you will be required to provide certain personal and other information to us to enable us to provide the Services to you. You are solely responsible for the accuracy of the information you provide to us or other users as aforesaid ("Your Information"). We will not be liable to you in any way whatsoever for any loss, expense or damage suffered by you, or claims made by third parties against you, and you further indemnify us against any loss, expense or damage we may suffer, or claims made by third parties against us, which arise from or in relation to your having submitted inaccurate information to us.
    2. Information required to validate your identity: We use many techniques to identify our Merchants when they register on our Site. You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity and registration. However, because user verification on the internet is difficult, we cannot and does not guarantee any Merchant's or User's identity.
  9. Security & Risks

    1. You are solely responsible for securing all data in your possession and/or under your control. It is your responsibility to, and you agree and warrant that you will, keep your username and password secure and confidential at all times in that you will only use your username and password for your own personal use and will not disclose your username and password to any other persons, or enable any other persons to otherwise access your Merchant Account. If you are a Legal Entity, you must further ensure that the persons authorised by you to access your Merchant Account do so within the scope of their authority and do not disclose your username and password to any unauthorised person or enable any unauthorised person to otherwise access your Merchant Account.
    2. Any person that delivers or attempts to deliver any damaging code to our Site or attempts to gain unauthorised access to any page on our Site shall be prosecuted and civil damages shall be claimed in the event that we suffer any damage or loss.
    3. You allow us to take all reasonable steps to ensure the integrity and security of our Site and back-office applications
  10. Changes to this Agreement and / or the Services

    1. We reserve the right to modify our Site or Services, in part or in whole, temporarily or permanently, or to launch new services or improvements, on prior notice posted on our Site.
    2. This Agreement (including the Privacy Policy and other policies or documents referred to herein) may be changed from time to time upon reasonable notice to you. Upcoming material changes will be posted on the Site 30 days prior to their effective date. If you do not agree with any of the amendments made to this Agreement from time to time, you will be entitled to cancel the Agreement and the Services subscribed for by giving written notice to us to that effect.
  11. Intellectual Property Rights

    1. Our rights to use your Feed content and Merchant Marks
      1. You hereby grant to us, and we accept, on a non-exclusive basis, a royalty free, non-transferable (except as provided herein), world-wide and fully sub-licensible, license to (a) use, reproduce and represent the registered or unregistered trademarks, trade names and/or logos owned by or licensed to you ("Merchant Marks") for the limited purposes of enabling us to exercise our rights or to fulfil our obligations under this Agreement; (b) use, reproduce, distribute, display and transmit the Feed in connection with, across and through PriceCheck property (in South Africa) and to permit users of such PriceCheck property to use the Feed; (c) use, reproduce, distribute, display and transmit the Feed in connection with the marketing and promotion of any respective PriceCheck property; and (d) generally to do all things with the Feed to provide the means and rights of access to the Feed to our Users.
      2. You grant us a royalty-free, perpetual, word-wide, irrevocable, non-exclusive and fully sub-licensable right and license to use, modify, adapt, reproduce, publish, translate, create derivative works from, distribute, perform and display the content of your Feed, in whole or in part. The means that we will be entitled to (inter alia) (a) organize, reproduce, display and otherwise use the content of your Feed as well as adapted and translated versions thereof (alone or in combination with other links and works) whether via the internet, via wired or wireless communication networks, simultaneously or successively and in locations and at times of its choice and to transfer such content on demand, via email, text message and other channels or media, as well as to duplicate the content for the abovementioned purposes; (b) reproduce, transmit, publicly display and/or distribute your Feed content as well as adapted and translated versions thereof via any medium; (c) develop and operate hyperlinks that permit Users to access your Merchant Site; (d) use, reproduce, organize and publicly display your Merchant Marks; (e) edit, adapt, abbreviate or translate in any languages your Feed content, to add new or altered content \ or works and to grant access to this edited content to third parties; (f) to catalogue and archive your Feed content wholly or partly in any technical form whatsoever and to transfer it into electronic databases and/or data networks and to grant third parties access to these databases; (g) exploit advertising in online and offline media, in particular to grant access to the content of your Feed to third parties and to combine it with the content of third parties and to incorporate it in print advertisements, brochures, advertisement films and advertising banners distributed by us or any authorized third party; and (h) if you authorize us to dos, to automatically produce Product lists or, if the Feed contains image URLs, the right to exploit your Merchant Site with web crawlers.
    2. Reservation of Rights
      1. All the content, trademarks and data on our Sites ("Content") are the property of or licensed to us and as such are protected from copying and infringement by local and international legislation and treaties. The Content may not be reproduced or copied by any means, whether electronically or not, without our prior written permission. Note that our Sites may contain images, names, codes or other content that constitute the trademarks, logos, or copyrighted material owned by other Merchants or third parties and you may not copy or use same without their permission.
      2. Any and all intellectual property rights subsisting in our Sites, any Content, the Services, this Agreement or otherwise developed by or on behalf of us subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term ("Intellectual Property Rights"), vests in PriceCheck and all rights not expressly granted are reserved. You acknowledge that you have no claim of any nature in and to the Intellectual Property Rights. You will not at any time during or after termination or cancellation of this Agreement dispute the validity or enforceability of such rights, or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of any of the Intellectual Property Rights and shall not counsel or assist any other person to do so. You may not use or alter any trademarks, trade or business names, designs or logos forming part of the Intellectual Property Rights, including but not limited to trade marks incorporating the terms "PriceCheck" ("our Logos") or do (or fail to do) anything that could adversely affect our rights in our Logos or their value and you agree to fully reimburse us for any loss or damage that we suffer as a result of any use by you of our Logos which is not in accordance with the Agreement.
      3. You may only download, view and print content from our Site for private and non-commercial purposes. To obtain permission for the commercial use of any content on our Site please contact us at http://www.pricecheck.co.za/contact_us/ for assistance.
      4. Except as expressly stated in this Agreement nothing in this Agreement shall grant or be deemed to grant either party any right, title or interest in any intellectual property rights of any kind (including copyright, trademarks, utility marks, domain names, trade and business names, designs and inventions) owned by the other party and except as expressly stated herein nothing in this Agreement shall entitle either party to use the other party's logos or trademarks or any other intellectual property rights in any way whatsoever without the prior written consent of the other party.
    3. Compliance with laws
      1. We cannot screen or edit all the content available from our Sites and do not accept any liability for illegal, defamatory or obscene content on or connected to our Sites, other than loss or damage arising as a result of our gross negligence in respect of screening content on our Sites. Hyperlinks provided on our Sites to other websites or mobi-sites (as the case may be) are provided as is and we do not necessarily agree with, edit or sponsor the content on such other sites. You are encouraged to inform us of any such content that may be offensive or illegal.
      2. You are obliged to comply with all laws applicable to any intellectual property rights (including without limitation trade secrets, copyright, trademarks, registered designs and patents) in respect of any data, files and/or information accessed, retrieved or stored by you through your use of any of the Services.
    4. Improvements
      1. If, while the Agreement is in force, you make any improvement to any aspect of the Intellectual Property Rights ("Improvement"), you will promptly inform us thereof in writing and will assign all rights in such Improvement to us and will assist us to obtain patent, design, copyright and all similar forms of protection for such Improvement at our expense wherever we may choose to obtain such protection. All intellectual property rights in respect of such Improvement will be deemed to be included in the Intellectual Property Rights in terms of the Agreement.
  12. Privacy

    1. We respect your privacy and will not disclose your personal information to third parties for marketing purposes if you have requested us not to do so (which you are able to do at any time). The manner in which we use Your Information is regulated in more detail as described in our Privacy Policy which can be found at http://www.pricecheck.co.za/policy/ ("Privacy Policy"). The Privacy Policy is hereby incorporated by reference into this Agreement. 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 Agreement and you may not register for or otherwise use or access our Services.
  13. Prohibited Content

    1. You agree to use the Services in accordance with the terms of this Agreement and all applicable laws, regulations and ordinances. You will not use our Site, or any of the Services for any other purpose, including unlawful or fraudulent activity. If we have reason to believe that you may be engaging in or have engaged in fraudulent, unlawful or improper activity, including without limitation any violation of any terms and conditions of this Agreement, your access to the Services may be suspended or terminated, as described below.
    2. In particular, you undertake not to engage in any of the following prohibited conduct in using our Site or any of the Services:
      1. Marketing or sale of counterfeit, stolen, or otherwise illegal items;
      2. threatening, stalking, defrauding, inciting, harassing, or advocating the harassment of, another person, User or Merchant, or otherwise interfering with another person's use of our Site or Services;
      3. submitting false, inaccurate or misleading information on the Site or conducting yourself in a false, inaccurate or misleading fashion or conducting fraudulent activities (including but not limited to impersonating a PriceCheck User or representative and/or requesting a PriceCheck User to provide you with their password or other information so as to access their account);
      4. delivering or attempting to deliver any damaging code to the Site or attempting to gain unauthorised access to any page on our Site; tampering, hacking, modifying to attempt to gain unauthorised access or otherwise disrupting, disabling, corrupting, interfering with or otherwise causing harm to the security or functionality of our Site or Services, Merchant Accounts, accounts of Users, computer systems or networks connected to the Site;
      5. posting spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
      6. keyword spamming or otherwise attempting to manipulate search results;
      7. 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;
      8. being defamatory, trade libellous, unlawfully threatening or unlawfully harassing or promoting bigotry or discrimination;
      9. transmitting or posting profanity, adult content or illegal content, such as child pornography;
      10. soliciting personal information from minors or harming or threatening to cause harm to minors;
      11. violating the Agreement or any applicable law (including those governing financial services, consumer protection, unfair competition, anti-discrimination or false advertising);
      12. modifying, adapting, appropriating, reproducing, distributing, translating, creating derivative works or adaptations of, publicly displaying, selling, trading, or in any way exploiting our Site or Site content (other than Your Information), except as expressly authorised by us in the Agreement; reverse engineering any portion of our Site or Services; reformatting or framing any portion of our Site; or removing or modifying any copyright, trademark or other proprietary rights notice on our Site or on any materials printed or copied off our Site;
      13. recording, processing, or mining information about Payers or other Merchants; accessing, retrieving or indexing our Site to construct or populate a searchable database of business listings or reviews; or using any robot, spider, site search or retrieval application, or other automated device, process or means to access, retrieve, scrape, or index our Site or any Site content;
      14. making excessive traffic demands; and/or taking any action (such as stress testing) that exceeds the load advised by PriceCheck from time to time, or that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our technology infrastructure after having received a request from us to reduce the load and you have failed to do so;
      15. using our Site or Services or any Site 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 that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information; using any device, software or routine that interferes with the proper working of our Site or Services, or otherwise attempting to interfere with the proper working of our Site or Services;
      16. removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of our Site, features that prevent or restrict the use or copying of Site content, or features that enforce limitations on the use of our Site;
      17. doing anything which may render us liable to anyone, or cause us to lose (in whole or in part) the services of our internet service providers or other suppliers after having received a request from us not to engage in such activities, or after having received a request from us to remedy such act and you have failed to do so.
    3. You acknowledge that if you use our Site and/or any Services in a manner that violates the aforegoing provisions, we may incur substantial liability and/or suffer significant damages, including (without limitation) fines and other related expenses from its payment processors and service providers and accordingly in the event of any such violation:
      1. your Merchant Account will be subject to limitation, suspension or immediate termination, as stated in 14.1 below;
      2. you will be subject to damages and other penalties, including criminal prosecution where applicable;
      3. you will be held liable to us for any and all damages suffered by us and, without limiting the generality of the aforegoing, you shall reimburse us for any and all costs, expenses, and fines levied on us by third parties such as its payment processors and/or service providers as a result of your activities.
    4. You agree that, if either you or PriceCheck commence litigation or arbitration in connection with clause 13.3 above, the prevailing party is entitled to recover attorneys' fees and any other costs incurred in such proceeding on the attorney and own-client scale in addition to any other relief to which the prevailing party may be entitled.
  14. Breach & Consequences thereof

    1. In the event that you default in any of your payment obligations or otherwise breach any provision of this Agreement and fail to remedy such breach within 7 days of PriceCheck having notified you thereof, without prejudice to any of PriceCheck's other remedies in law or under the Agreement (including the right to claim damages), PriceCheck is then entitled to -
      1. suspend or limit your access to the Services or your Merchant Account until such time as you have remedied your breach, at which stage we reserve the right to charge you a reconnection fee in order to re-connect you to the Services; and/or
      2. terminate the Services(and your access to your Merchant Account) entirely, depending on the nature of the breach in question ; and/or
      3. forthwith claim immediate payment of any and all outstanding amounts due by you to us; and/or
      4. list you with any of the credit bureaus; and/or
      5. appoint tracing agents as may be required; and/or
      6. if we are in possession of any of your property in consequence of our provision to you of the Services, we shall be entitled to retain such property pending your settlement of all amounts owed by you to us, and furthermore, if you fail to pay all amounts then owed to us within 30 (thirty) days of any notice to you in such regard, we are further entitled, to dispose of such property in order to defray any expenses incurred by us and any amounts owed by you to us,

      and in all the above instances, we are entitled to retain all Fees already paid by you and recover all of our costs associated with your breach, including without limitation, default administration charges, collection costs, legal costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction of such judgement or in regards to the enforcement of the Agreement.
  15. Suspension & Termination

    1. Suspension: In addition to suspension for actual un-remedied breaches (as contemplated in 14.1.1 above), we reserve the right to suspend your access to the Services and/or your Merchant Account in the following circumstances:
      1. upon your having committed a breach, pending your remedy thereof;
      2. should we reasonably suspect that any of the content of your Feed (be it Product details or pricing or otherwise) or other information you submit to us is not authentic and/or accurate;
      3. should we reasonably suspect that you have committed any other breach of this Agreement;
      4. should negative User reviews be posted in relation to you or your Products;
      5. should we receive complaints from third parties in respect of your business practices (it being recorded that we are not obliged to verify the foundation for any such complaints prior to suspending your access to Services).
    2. Termination: In addition to termination for breach (in accordance with 14.1.2), we are each entitled to terminate this Agreement on 1 calendar month’s written notice to the other of us.
    3. Consequences of Termination: Where you are in possession of any of our property in consequence of the provision to you of the Service, upon termination of this Agreement for any reason whatsoever, you will immediately return such property to us, and shall not be entitled to retain such property for any reason whatsoever. In particular, but without limiting the generality of the aforegoing, you will remove any reference to PriceCheck, our Logos, the Content and the Services from all your promotional and corporate materials, including all your electronic communications and websites.
  16. Disclaimer

    1. Although we use reasonable care and diligence to ensure that the Services are available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable, we make no representations or warranties, implied or otherwise, that, amongst others, the Services, the content and technology available from our Sites or information provided by us via email or other means will be available, timely, accurate, complete, correct, error-free, virus-free, secure, 100% uninterrupted, up-to-date and/or reliable.
    2. You therefore agree that the Services and our Sites are supplied "as is" and "as available", have not been compiled or supplied to meet your individual requirements and are used at your own discretion and risk. It is your sole responsibility to satisfy yourself prior to accepting this Agreement that the Services will meet your individual requirements and be compatible with your hardware and/or software.
    3. More specifically:
      1. although we will use reasonable endeavours to ensure the security of the Services and our e-commerce network infrastructure, we cannot guarantee such security and we will not be liable in any way whatsoever in respect of any loss or damage of whatever nature suffered by you or any third party due to a breach of such security of the Services and/or our e-commerce network infrastructure other than where due to our gross negligence;
      2. hyperlinks provided on our Site to non-PriceCheck websites or mobi-sites are provided as is and we do not necessarily agree with, edit or sponsor the content on such sites; and
      3. we make no warranties or guarantees regarding the success or increased Product sales you may achieve from subscribing to the Services, including no warranty that any User will click through to your Merchant Site and/or purchase any Products from you.
    4. Nothing in this Agreement will prevent or limit either of your or our liability for fraud or wilful misconduct; death or personal injury arising out of negligence; or gross negligence.
    5. You acknowledge that the allocation of risk and responsibility as set out in the Agreement is reasonable because it accords with our not having developed any of the Services specifically for you; the fact that, while we follow good industry practice, it is not economically possible for us to exhaustively test any software that supports the Services; and the amount of fees, if any, paid by you for the Services.
    6. Limitation of Liability: Notwithstanding our aforesaid disclaimer of liability, should a court nevertheless find us liable to you in relation to the Services for any reason, our maximum aggregate responsibility and liability to you (including for negligence and whether pursuant to one or more claims) in relation to this Agreement will be limited to paying you an amount equal to the total amount of fees you paid to us for such Service in the 12 months prior to the incident for which we are responsible.
    7. Exclusion of Consequential Loss: Under no circumstances whatsoever will we or any of our affiliates, subsidiaries, agents, suppliers and/or subcontractors be liable to you for any indirect loss, or any incidental, special, punitive or consequential loss or damage, or any direct or indirect loss of profits, arising in relation to the Agreement, our Sites and/or the Services. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, and so in such jurisdictions liability is limited to the fullest extent permitted by law.
    8. Uncontrollable Events: Whilst we aim to provide uninterrupted Services, unfortunately we can't guarantee this as interruptions may be caused by factors beyond our reasonable control. Under no circumstances will we be liable for any events beyond our reasonable control. If circumstances happen that are beyond our reasonable control, we will not be liable for any failure to perform our obligations under the Agreement because of those circumstances, and we will be excused from that failure for so long as those circumstances continue. Wherever possible, we will provide advance warning on our Site of any known or planned interruptions and will try to ensure any interruption is kept as brief as possible.
  17. Your indemnification of PriceCheck

    1. You hereby indemnify and hold harmless each of PriceCheck, 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 (including legal fees), which arise (directly or indirectly) from or in relation to (a) any breach of this Agreement (including any documents it incorporates by reference) by you, your affiliates, or any of your employees or agents; (b) any violation of any law or the rights of a third party relating to your use of the Services, by you, your affiliates, or any of your employees or agents; (c) the products and/or services offered or sold by you; and (d) the content of your Feed
  18. Our optional 'QikCart' mobi site service

    1. Description of service: If you no Merchant Site at all to which we can redirect our Site Users, or the only Merchant Site you have is a website and you do not want our Mobi Site Users to be directed thereto, you can elect to subscribe to our QikCart service in terms of which we provide you with a mobile-optimised product site ("QikCart Site") to which we can redirect our Mobi Site Users.
    2. QikCart Site features: The QikCart Site will be located at www.qikcart.co.za, be owned and operated by us, and thus be subject to standardized user terms and conditions and privacy policy which we will determine and amend in our sole discretion from time to time (a copy of which can be found here). However, the QikCart Site is dedicated to you and your products, having the following features:
      1. the display of information relating to the relevant product, as provided by you via your Feed;
      2. the display of your name, address, phone numbers and other contact details, as provided by you to us (via the Admin Panel which you can access when logged into the Merchant Platform);
      3. the display of your business address on a map (which we can do via a mapping functionality based on the address you provided to us);
      4. the inclusion of a message functionality whereby Users are able to send you electronic messages ("QC Messages"), including their email addresses and/or phone numbers so as to enable you to respond to their messages. We emailing those QC Messages and details to you, to the email address you specify for such purpose. In this regard note that although we are responsible for sending you these QC Messages, we are not responsible for ensuring that you receive them, retrieve them, or act upon them, and it is your responsibility to ensure that your mailbox is set up correctly and has sufficient space to receive these QC Message emails from us. Also note that in doing this we are merely providing a communication facilitation service, not a record-keeping service and although we may store certain QC Message data for a period of time for our own internal record-keeping purposes, we are not obliged to do so and need not provide you with copies of any QC Messages you may have missed or lost.
    3. Fees: There are no upfront fees associated with the QikCart Site, but we will charge you a PPC Fee for each redirection of a User from our Site to your QikCart Site, and should that User then click on one or more of the lead options available on your QikCart Site (ie so as to either see your address, or phone number, or to send you a QC Message), we will charge another PPC Fee. The exact PPC Fees applicable will be displayed in the Merchant Admin Panel prior to your signing up for the QikCart service.
    4. Privacy:As explained in the QikCart Site Privacy Policy, the QC Messages and related information we collect from Users on the QikCart Site is merely forwarded by us to you to enable you to make contact with such Users in relation to their queries. You may not disclose any such information to third parties or use such information for any purpose other than to contact those Users in relation to their QC Messages, unless you have obtained that User's prior consent thereto. You shall at all times collect, store and process such information in accordance with all applicable laws and hereby indemnify us against loss, expense or harm we may suffer, or third party claims which may be made against us which arise from or in relation to your having contravened any such applicable laws.
    5. Other terms: For the sake of clarity it is recorded and agreed that all the provisions of this Agreement as they apply to the Services generally, will also apply to this QikCart Site service specifically, mutatis mutandis, including as regards your responsibility for the accuracy of the information you provide to us, advance payment of fees, and our disclaimer of any warranties associated with the service (including that all QC Messages in fact reach you or that the mapping functionality works accurately).
  19. Complaints, Error reporting, & Disputes

    1. Should you have any complaints relating to the Services, our Site, or any other Merchants or Users, or wish to report possible malfunctions and errors, please contact our Customer Relations at info@pricecheck.co.za. We will take all such measures as we deem reasonable or necessary to assess and address your complaint.
    2. Should a dispute of any nature whatsoever arise between you and PriceCheck on any matter provided for in or arising out of the Agreement and such dispute is not resolved through our Customer Relations Department then, save for urgent or interim relief which may be granted by a competent court, such a dispute may 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 http://www.arbitration.co.za/downloads/expedited_rules.
    3. Should a dispute of any nature whatsoever arise between you and another Merchant or User, you acknowledge that we are not and will not be a party to such dispute. We do not act as the agent of any of our Merchants or Users and are not responsible for resolving such disputes. We may however in its sole discretion elect (but shall not be obliged) to assist in the resolution of such dispute.
  20. Addresses for Notices

    1. We each choose as our domiciliumcitandi et executandi (i.e. physical address) for all purposes under the Agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature, the following addresses:
      1. PriceCheck: 3rd floor, Eleven Adderley, 11 Adderley Street, Cape Town, 8001, South Africa, with a copy to legal@mihinternet.com (the delivery of which copy shall be required in order for notice to be validly delivered)
      2. You: the physical address PriceCheck has on record for you as provided by you from time to time.
    2. Where communications are made electronically, where provided for in accordance with the Agreement, such communications shall be deemed to have been received within 48 hours after having been sent, save where the sender knows that delivery thereof has failed.
  21. General

    1. Cession & Transfer of rights: We are entitled to cede or assign any of its rights or obligations under this Agreement to any third party, but for security reasons, you shall not be entitled to cede, assign, transfer or otherwise dispose any of your rights and obligations under this Agreement to any other person, without our prior written consent. More specifically, should you wish to sell or otherwise dispose of the business to which your Merchant Site, Merchant Shop and/or your Feed relates, you and the prospective purchaser must notify us thereof, requesting either that this Agreement be ceded and assigned to such purchaser, or that this Agreement be terminated in accordance with its terms
    2. Electronic Communications: To the fullest extent permitted by applicable law, you consent to receiving the Agreement or any part thereof, and any other agreements, notices or other communications ("Communications") from us regarding your Merchant Account and/or your use of the Services electronically. Electronic Communications may be posted on our Site and/or sent to the e-mail address we have on record for you. Please print a copy of each Communication and retain it for your records. We reserve the right, but assume no obligation to, provide Communications in paper format. You agree that in the event of a dispute between you and PriceCheck or between you and any other Merchant or User, our electronic records of transactions, this Agreement, any identity verification information provided in a paper format and subsequently scanned or otherwise converted into an electronic format, and any other information stored or created electronically shall be admissible in a court of law or in relation to a law enforcement or regulatory investigation or prosecution.
    3. Governing Law & Jurisdiction: Our Sites are hosted, controlled and operated from the Republic of South Africa and therefore it, and the Agreement, are governed by South African law. Subject to the 'Complaints and Disputes' clause of this Agreement, you and PriceCheck submit to the non-exclusive jurisdiction of the South African courts
    4. Non-waiver: If either of us fails or delays the exercise of any rights or remedies under the Agreement, we will not be deemed to have waived (i.e. given up) those rights or remedies in any way.
    5. Severability:If a court or similar body decides that any wording in the Agreement is invalid or unenforceable, that decision will not affect the rest of the Agreement, which will remain binding on both of us. However, if the wording that is invalid or unenforceable can be made valid and enforceable by deleting part of it, we will both treat the wording as if it is deleted, so that the remainder of the wording in question becomes valid and enforceable.
    6. Whole Agreement: The Agreement (including the Privacy Policy and other documents or policies incorporated into these General Terms or the relevant Service Terms) is the entire agreement between you and PriceCheck with respect to your use of the relevant Services, and supersedes all documentation, information and other communications (in each case whether spoken or written) between us with respect to such access and use.
  22. PriceCheck Corporate Information

    1. PriceCheck’s information is as follows:
      Full name: PriceCheck (Pty) Ltd, a company incorporated and registered in South Africa, registration number 2007/013797/07
      Main business: Online price comparison website operator
      Office bearers: G.J. Visser & W.J. Paladino
      Website: http://www.PriceCheck.co.za; m.pricecheck.co.za; & touch.pricecheck.co.za
      Official email address: info@pricecheck.co.za
      Contact telephone number: 0861 pricecheck
      Address for receipt of legal service: 3rd floor, Eleven Adderley, 11 Adderley Street, Cape Town, 8001, South Africa
      PROATIA: The manual published in terms of section 51 of the Promotion of Access to Information Act No 2 of 2000 may be downloaded from http://www.naspers.co.za

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