Version No.2: [Septemer 2018]
Date of Issuance: [September 2018]
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY! PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS.
1. APPLICATION AND ACCEPTANCE OF THE TERMS
1.2 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with goAfrica, or (b) you are not permitted to receive any Services under the applicable laws of the country / region in which you are resident or from which you use the Services.
1.3 You acknowledge and agree that goAfrica may amend any Terms at any time by posting the relevant amended and restated Terms on the Site. By continuing to use the Services or the Site, you agree that the amended Terms will apply to you.
1.4 If goAfrica has posted or provided a translation of the English language version of the Terms, you agree that the translation is provided for convenience only and that the English language version will govern your uses of the Services or the Site.
1.5 You may be required to enter into a separate agreement, whether online or offline, with goAfrica or our affiliate for any Service (“Additional Agreements”). If there is any conflict or inconsistency between the Terms and an Additional Agreement, the Additional Agreement shall take precedence over the Terms only in relation to that Service concerned.
1.6 The Terms may not otherwise be modified except in writing by an authorised officer of goAfrica.
2. PROVISION OF SERVICES
2.1 The goAfrica contracting entity that you are contracting with is goAfrica (UK) Limited, a company incorporated in England with Company number 10854581.
2.2 You must register as a member on the Site to access and use some Services. Further, goAfrica reserves the right, without prior notice, to restrict access to or use of certain Services (or any features within the Services) to paying Users or subject to other conditions that goAfrica may impose in our discretion.
2.3 Services (or any features within the Services) may vary for different regions and countries. No warranty or representation is given that a Service or feature or function thereof or the same type and extent of the Service or features and functions thereof will be available for Users. goAfrica may in our sole discretion limit, deny or create different level of access to and use of any Services (or any features within the Services) with respect to different Users.
2.4 goAfrica may launch, change, upgrade, impose conditions to, suspend, or stop any Services (or any features within the Services) without prior notice except that in case of a fee-based Service, such changes will not substantially adversely affect the paying Users in enjoying that Service.
2.5 Some Services may be provided by goAfrica’s affiliates on behalf of goAfrica.
3. GENERAL USER TERMS
3.1 As a condition of your access to and use of the Site or Services, you agree that you will comply with all applicable laws and regulations when using the Site or Services.
3.2 You agree to use the Site or Services solely for your own private and internal purposes. You agree that (a) you will not copy, reproduce, download, re-publish, sell, distribute or resell any Services or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etc available on or through the Site (the “Site Content”), and (b) you will not copy, reproduce, download, compile or otherwise use any Site Content for the purposes of operating a business that competes with goAfrica, or otherwise commercially exploiting the Site Content. Systematic retrieval of Site Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from goAfrica is prohibited. Use of any content or materials on the Site for any purpose not expressly permitted in the Terms is prohibited.
3.4 goAfrica may allow Users to access to content, products or services offered by third parties through hyperlinks (in the form of word link, banners, channels or otherwise), API or otherwise to such third parties’ web site. You are cautioned to read such web site’ terms and conditions and/or privacy policies before using the Site. You acknowledge that goAfrica has no control over such third parties’ web site, does not monitor such web site, and shall not be responsible or liable to anyone for such web site, or any content, products or services made available on such web site.
3.5 You agree not to undertake any action to undermine the integrity of the computer systems or networks of goAfrica and/or any other User nor to gain unauthorized access to such computer systems or networks.
3.6 You agree not to undertake any action which may undermine the integrity of goAfrica’s feedback system, such as leaving positive feedback for yourself using secondary Member IDs or through third parties or by leaving unsubstantiated negative feedback for another User.
3.7 By posting or displaying any information, content or material (“User Content”) on the Site or providing any User Content to goAfrica or our representative(s), you grant an irrevocable, perpetual, worldwide, royalty-free, and sub-licensable (through multiple tiers) license to goAfrica to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create derivative works, and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner and for any purpose which may be beneficial to the operation of the Site, the provision of any Services and/or the business of the User. You confirm and warrant to goAfrica that you have all the rights, power and authority necessary to grant the above license.
4. GOAFRICA’S SERVICES
The User(s) may also be referred to as a “Member”. A Member may be either a “Supplier” Member, and/or a “Buyer” Member of the Site.
4.1 The supplier agrees to pay goAfrica a fixed percentage commission fees on the gross merchandise value (GMV) from their sales made through the goAfrica platform. Depending on the category it may be appropriate to agree different commission fee percentages for certain items or product categories. The Service will be offered at [3%] of GMV from their sales for an unspecified time period unless terminated in accordance with the terms of this Agreement.
4.2 goAfrica may start charging additional fees for the sale of goods through goAfrica platform at any point. These may include but are not limited to, listing fees, multiple photos fees, and enhanced marketing fees, and supplier subscription. In the event of the introduction of further fees (such as supplier subscription fees), the supplier will be notified prior to their commencement in writing, or via email and they will have the option to opt out.
4.3 goAfrica reserves the right to adjust the percentage commission fees, providing suitable notice is served in advance to the supplier. goAfrica will give the supplier adequate notice of any commission changes, in writing, or via email. This does not cover adjustments that constitute a material change of the contract terms, which would require an additional agreement on the change.
4.4 The Service will have the following core features (which may be added to or modified, or suspended for scheduled or unscheduled maintenance purposes, from time to time at the sole discretion of goAfrica and notified to you)
a) Company Profile – allows each Member to display and edit basic information about its business, such as year and place of establishment, estimated annual sales, number of employees, and products and services offered, etc.
b) Products – allows each Supplier Member to display and edit descriptions, specifications and images of at least 1 product.
c) Unlimited Buyer Trade Lead Posting – allows each Member to post on the Site for public display offers to buy products and services from other users of the Site.
4.5 goAfrica reserves the right to charge for the Service or any feature or functionality of the Service at any time in its sole discretion.
4.6 Benefits, features and functions available to a Member may vary for different countries and regions. No warranty or representation is given that a particular feature or function or the same type and extent of features and functions will be available.
4.7 The availability of any transactional features and functions on the Site to any Member may be conditional on verification of Member’s identity and/or its designated bank account by goAfrica and/or its approved independent third parties.
4.8 Each Member acknowledges that inability to use the Service wholly or partially for whatever reason may have adverse effects on its business. Each Member hereby agrees that in no event shall goAfrica be liable to the Member or any third parties for any inability to use the Service (whether due to disruption, changes to or termination of the Service or otherwise), any delays, inaccuracies, errors or omissions with respect to any communications or transmission or delivery of all or any part thereof, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Service.
5. MEMBERSHIP ACCOUNTS
5.1 User must be registered on the Site to access or use some Services (a registered User is also referred to as a “Member” below). Except with goAfrica’s approval, one User may only register one-member account on the Site. goAfrica may cancel or terminate a User’s member account if goAfrica has reasons to suspect that the User has concurrently registered or controlled two or more-member accounts.
5.2 Upon registration on the Site, goAfrica shall assign an account and issue a member ID and password (the latter shall be chosen by a registered User during registration) to each registered User. An account may have a web-based email account with limited storage space for the Member to send or receive emails.
5.3 A set of Member ID and password is unique to a single account. Each Member shall be solely responsible for maintaining the confidentiality and security of your Member ID and password and for all activities that occur under your account. No Member may share, assign, or permit the use of your Member account, ID or password by another person outside of the Member’s own business entity. Member agrees to notify goAfrica immediately if you become aware of any unauthorised use of your password or your account or any other breach of security of your account.
5.4 Member agrees that all activities that occur under your account (including without limitation, posting any company or product information, clicking to accept any ADDITIONAL AGREEMENTS or rules, subscribing to or making any payment for any services, sending emails using the email account or sending SMS) will be deemed to have been authorised by the Member.
5.5 Member acknowledges that sharing of your account with other persons, or allowing multiple users outside of your business entity to use your account (collectively, “multiple use“), may cause irreparable harm to goAfrica or other Users of the Site. Member shall indemnify goAfrica, our affiliates, directors, employees, agents and representatives against any loss or damages (including but not limited to loss of profits) suffered as a result of the multiple use of your account. Each Member hereby undertakes to notify goAfrica immediately of any unauthorized use of its Account, Member ID or Password or any other breach of security. Member also agrees that in case of the multiple use of your account or Member’s failure to maintain the security of your account, goAfrica shall not be liable for any loss or damages arising from such a breach and shall have the right to suspend or terminate Member’s account without liability to Member.
6. MEMBER OBLIGATIONS
6.1 Each Member represents, warrants and agrees that (a) you have full power and authority to accept the Terms, to grant the license and authorization and to perform the obligations hereunder; (b) you use the Site and Services for business purposes only; and (c) the address you provide when registering is the principal place of business of your business entity. For purposes of this provision, a branch or liaison office will not be considered a separate entity and your principal place of business will be deemed to be that of your head office.
6.2 Member will be required to provide information or material about your entity, business or products/services as part of the registration process on the Site or your use of any Service or the member account. Each Member represents, warrants and agrees that (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of the use of the Site or Service is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
6.4 Each Member represents, warrants and agrees that (a) you shall be solely responsible for obtaining all necessary third party licenses and permissions regarding any User Content material or information that the User submits, posts or displays; (b) any User Content that you submit, post or display does not infringe or violate any of the copyright, patent, trademark, trade name, trade secrets or any other personal or proprietary rights of any third party (“Third Party Rights”); (c) you have the right and authority to sell, trade, distribute or export or offer to sell, trade, distribute or export the products or services described in the User Content and such sale, trade, distribution or export or offer does not violate any Third Party Rights and (d) you and your affiliates are not the subject of any trade restrictions, sanctions or other legal restrictions enacted by any country, international organisation or jurisdiction.
6.5 Each Member further represents, warrants and agrees that the User Content that you submit, post or display shall:
a) be true, accurate, complete and lawful;
b) not be false, misleading or deceptive;
c) not contain information that is defamatory, libellous, unlawfully threatening or unlawfully harassing, obscene, objectionable, offensive, sexually explicit or harmful to minors;
d) not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
e) not violate the Product Listing Policy, other Terms or any applicable Additional Agreements
f) not violate any applicable laws and regulations (including without limitation those governing export control, consumer protection, unfair competition, or false advertising) or promote any activities which may violate any applicable laws and regulations;
g) not contain any link directly or indirectly to any other web Site which includes any content that may violate the Terms.
6.6 Each Member further represents, warrants and agrees that you shall/are:
a) carry on your activities on the Site in compliance with any applicable laws and regulations;
b) conduct your business transactions with other users of the Site in good faith;
c) carry on your activities in accordance with the Terms and any applicable Additional Agreements;
d) not use the Services or Site to defraud any person or entity (including without limitation sale of stolen items, use of stolen credit/debit cards);
e) not impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
f) not engage in spamming or phishing;
g) not engage in any other unlawful activities (including without limitation those which would constitute a criminal offence, give rise to civil liability, etc) or encourage or abet any unlawful activities;
h) not involve attempts to copy, reproduce, exploit or expropriate goAfrica’s various proprietary directories, databases and listings;
i) not involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
j) not involve any scheme to undermine the integrity of the data, systems or networks used by goAfrica and/or any user of the Site or gain unauthorized access to such data, systems or networks;
K) not, and your director(s), officer(s), controlling party/ies, affiliates and legal jurisdiction in which any of the foregoing persons or entities is organized or has operations are not, persons or entities that are subject to any economic or fraud sanctions of any governmental, international or regulatory entities;
l) not engage in any activities that would otherwise create any liability for goAfrica or our affiliates; and;
m) not contain any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law or regulation
6.7 Member may not use the Services and member account to engage in activities which are identical or similar to goAfrica’s e-commerce marketplace business.
6.8 If Member provides a business referee, Member represents, warrants and agrees that you have obtained all necessary consents, approvals and waivers from your business partners and associates to (a) act as your business referee; (b) post and publish their contact details and information, reference letters and comments on their behalf; and (c) that third parties may contact such business referees to support claims or statements made about you. You further warrant and agree that all reference letters and comments are true and accurate, and third parties may contact the business referees without the need to obtain your consent.
6.9 Member agrees to provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for goAfrica’s provision of the Services, evaluating whether Member has breached the Terms and/or handling any complaint against the Member. If Member’s failure to do so results in delay in, or suspension or termination of, the provision of any Service, goAfrica shall not be obliged to extend the relevant service period nor shall be liable for any loss or damages arising from such delay, suspension or termination.
6.10 Member acknowledges and agrees that goAfrica shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or material or information created, obtained or accessible through the Services or Site. goAfrica does not endorse, verify or otherwise certify the contents of any comments or other material or information made by any Member. Each Member is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information
6.11 Member acknowledges and agrees that the Services may only be used by businesses and their representatives for business use and not for individual consumers or for personal use.
6.12 Member acknowledges and agrees that each Member is solely responsible for observing applicable laws and regulations in its respective jurisdictions to ensure that all use of the Site and Services are in compliance with the same.
7. VIOLATIONS BY MEMBERS
7.1 goAfrica reserves the right in our sole discretion to remove, modify or reject any User Content that you submit to, post or display on the Site which we reasonably believe is unlawful, violates the Terms, could subject goAfrica or our affiliates to liability, or is otherwise found inappropriate in goAfrica’s opinion.
7.2 If any Member breaches any Terms, or if goAfrica has reasonable grounds to believe that a Member is in breach of any Terms, goAfrica shall have the right to take such disciplinary actions as it deems appropriate, including without limitation: (i) suspending or terminating the Member’s account and any and all accounts determined to be related to such account by goAfrica in its discretion; (ii) restricting, downgrading, suspending access to current or future use of any Service, or terminating any future subscription of any Service; (iii) removing any product listings or other User Content that the Member has submitted, posted or displayed, or imposing restrictions on the number of product listings or User Content that the Member may post or display; (iv) imposing other restrictions on the Member’s use of any features or functions of any Service as goAfrica may consider appropriate in its sole discretion; and (v) any other corrective actions, discipline or penalties as goAfrica may deem necessary or appropriate in its sole discretion; and (vi) goAfrica has the right to suspend or terminate the Service and all Member Benefits with respect to such Member without any compensation
7.3 Without limiting the generality of the provisions of the Terms, a Member would be considered as being in breach of the Terms in any of the following circumstances:
a) upon complaint or claim from any third party, goAfrica has reasonable grounds to believe that such Member has wilfully or materially failed to perform your contract with such third party including without limitation where the Member has failed to deliver any items ordered by such third party after receipt of the purchase price, or where the items Member has delivered materially fail to meet the terms and descriptions outlined in your contract with such third party,
b) goAfrica has reasonable grounds to suspect that such Member has used a stolen credit card or other false or misleading information in any transaction with a counter party,
c) goAfrica has reasonable grounds to suspect that any information provided by the Member is not current or complete or is untrue, inaccurate, or misleading, or
d) goAfrica believes that the Member’s actions may cause financial loss or legal liability to goAfrica or our affiliates or any other Users.
7.4 goAfrica reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, goAfrica may disclose the Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or because of a subpoena or other legal action. goAfrica shall not be liable for damages or results arising from such disclosure, and Member agrees not to bring any action or claim against goAfrica for such disclosure.
7.5 If a Member is in breach of the Terms, goAfrica also reserves the right to publish the records of such breach on the Site. If such breach involves or is reasonably suspected of involving dishonest or fraudulent activities, goAfrica also reserves the right to disclose the records of such breach to our affiliates. Such GoAfrica affiliates may impose limitation on, suspend or terminate the Member’s use of all or part of the services provided by such affiliates to the Member, take other remedial actions, and publish the records about the Member’s breach of the Terms on the website operated by or controlled by such goAfrica affiliates.
7.6 goAfrica may, at any time and in our reasonable discretion, impose limitations on, suspend or terminate the User’s use of any Service or the Site without being liable to the Member if goAfrica has received notice that the Member is in breach of any agreement or undertaking with any affiliate of goAfrica and such breach involves or is reasonably suspected of involving dishonest or fraudulent activities. goAfrica shall have the right to publish the records of such breach on the Site. goAfrica shall not be required to investigate such breach or request confirmation from the Member.
7.7 Each Member agrees to indemnify goAfrica, our affiliates, directors, employees, agents and representatives and to hold them harmless, from any and all damages, losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from your submission, posting or display of any User Content, from your use of the Site or Services, or from your breach of the Terms.
7.8 Each User further agrees that goAfrica is not responsible, and shall have no liability to you or anyone else for any User Content or other material transmitted over the Site, including fraudulent, untrue, misleading, inaccurate, defamatory, offensive or illicit material and that the risk of damage from such material rests entirely with each Member. goAfrica reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Member, in which event the Member shall cooperate with goAfrica in asserting any available defences.
8A. PART 1: TRANSACTIONS BETWEEN BUYERS AND SUPPLIERS
8.1 Through the Site, goAfrica provides an electronic web-based platform for exchanging information between buyers and suppliers of products and services. goAfrica additionally provides electronic web-based transaction platforms for Members to place, accept, conclude, manage and fulfil orders for the provision of products and services online within the Site. However, for any Services, goAfrica does not represent either the supplier or the buyer in specific transactions whether or not they have been made on the Site. goAfrica does not control and is not liable to or responsible for the quality, safety, lawfulness or availability of the products or services offered for sale on the Site or the ability of the supplier to complete a sale or the ability of buyers to complete a purchase.
8.2 Users are hereby made aware that there may be risks of dealing with people acting under false pretences. goAfrica uses several techniques to verify the accuracy of certain information our Users provide us when they register for Buyer and/or Supplier membership service on the Site. However, because user verification on the Internet is difficult, goAfrica cannot and does not confirm each User’s purported identity (including, without limitation, paying Members). We encourage you to use various means, as well as common sense, to evaluate with whom you are dealing.
8.3 Each User acknowledges that it is fully assuming the risks of conducting any purchase and sale transactions in connection with using the Site or Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or services that are the subject of transactions using the Site. Such risks shall include, but are not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost mis-calculations, breach of warranty, breach of contract and transportation accidents. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Site may violate or may be asserted to violate Third Party Rights, and the risk that User may incur costs of defence or other costs in connection with third parties’ assertion of Third Party Rights, or in connection with any claims by any party that they are entitled to defence or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by Users of the Site because of purchase and sale transactions in connection with using the Site may suffer harms and/or assert claims arising from their use of such products. All of the foregoing risks are hereafter referred to as “Transaction Risks”. Each User agrees that goAfrica shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
8.4 Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the Site or Services, including, without limitation, terms regarding payment, returns, warranties, shipping, insurance, fees, taxes, title, licenses, fines, permits, handling, transportation and storage.
8.5 User agrees to provide all information and materials as may be reasonably required by goAfrica in connection with your transactions conducted on, through or as a result of use of the Site or Services. goAfrica has the right to suspend or terminate any User’s account if the User fails to provide the required information and materials.
8.6 In the event that any User has a dispute with any party to a transaction, such User agrees to release and indemnify goAfrica (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.
8B. PART 2: PAYMENTS FOR TRANSACTIONS BETWEEN BUYERS AND SUPPLIERS
8.7 The Buyer shall pay the full transaction price listed for the web-based Transaction to the Supplier through the goAfrica website unless another option is made available directly by the goAfrica website. When using goAfrica website to submit payment for a web-based Transaction, payments are processed through accounts owned by goAfrica or one of its affiliates and/or a registered third-party service provider acting on goAfrica’s behalf and the relevant funds are received for the Supplier in accordance with the applicable Transaction Services Agreement. The Supplier hereby appoints goAfrica as its agent for the limited purpose of receiving and holdingpayments from Buyers. The Supplier agrees that the Buyer’s full payment of the transaction price listed for the web-based Transaction to goAfrica constitutes final payment to the Supplier extinguishing Buyer’s payment obligation to Supplier as if the Buyer had paid the Supplier directly, even if the payment is not received by Supplier from goAfrica, goAfrica, and not the Buyer, is thereafter solely liable to the Supplier for payment if goAfrica fails to remit payments received from Buyer to the Supplier. The payment must be made in US Dollars or any other currencies as supported by goAfrica website at the time of the transaction. Buyers will receive a receipt upon payment that will indicate that payment has been made on the applicable date.
8.8 Upon receipt of the Buyer’s payment, the goAfrica website will promptly notify the Supplier of the details of the payment.
8.9 goAfrica shall retain the funds received in connection with any web-based Transaction conducted on, or through the goAfrica website until, the first of any of the following events occurs:
(a) the Buyer’s confirmation of a successful completion of the web-based Transaction, in which case all the funds will be transferred to the Supplier;
(b) the Buyer’s failure to confirm receipt of the goods or services within the time limit prescribed by the Supplier and as agreed on the goAfrica website, in which case all the funds will be transferred to Supplier.
(c) cancellation of the web-based Transaction, in which case all the funds will be refunded to Buyer;
(d) the conclusion of any settlement agreement between the Buyer and the Supplier, in which case the funds will be disposed in accordance with such settlement agreement;
(e) a dispute in relation to the services provided by the goAfrica website has been submitted to goAfrica website for goAfrica’s determination and the goAfrica’s determination has become final and binding according to the applicable Transaction Services Agreement, in which case the funds will be disposed in accordance with goAfrica’s determination; and
(f) goAfrica or our affiliates receives any order, ruling, award or judgment from a competent court, arbitration tribunal or authority which directs us to release the funds, in which case the funds will be disposed in accordance with such order, ruling, award or judgment.
If you are a Buyer, you acknowledge and agree that goAfrica is not holding any funds on your behalf, or in any escrow or trust relationship with you.
If you are a Supplier, you acknowledge and agree that you have requested that the settlement of funds to you be delayed as provided in this clause 8.9. Nothing in this clause 8.9 shall Affect the fact that Buyer’s
payment obligation for the web-based Transaction is fully satisfied upon receipt of funds by goAfrica as set forth in clause 8.7.
8.10 When releasing any funds to a User, goAfrica shall have the right to deduct or withhold any financial charges or service fees due and payable to goAfrica (if any) in such amounts as instructed by the goAfrica? pursuant to the agreement between the Supplier and the goAfrica website, or the relevant Transaction Services Agreement (as the case may be).
8.11 Any unclaimed fundswill be held by goAfrica for a period of five years or as otherwise instructed by the goAfrica website, at the expiry of which time, you the Supplier will be deemed to have waived any claim in respect of such funds or, if required by applicable laws, we will transfer the funds (less any fees, if any and to the extent permitted under applicable laws) to the relevant competent authority. You hereby agree that upon expiry of such period or upon such transfer of such funds to the relevant competent authority, goAfrica will be relieved of any further obligation to pay those unclaimed funds to you.
8.12 You[the Supplier] acknowledge and agree that goAfrica may receive interest on any funds held by it in performing the goAfrica website services. Any such interest is for the account of goAfrica, and you will not receive interest or other profits in relation to the goAfrica website services.
9. LIMITATION OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES PROVIDED BY GOAFRICA ON OR THROUGH THE SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND GOAFRICA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, AND UNDERTAKINGS ARE HEREBY EXCLUDED.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, GOAFRICA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF ANY INFORMATION PROVIDED ON OR THROUGH THE SITE; GOAFRICA DOES NOT REPRESENT OR WARRANT THAT THE MANUFACTURE, IMPORTATION, EXPORT, DISTRIBUTION, OFFER, DISPLAY, PURCHASE, SALE AND/OR USE OF PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE SITE DOES NOT VIOLATE ANY THIRD PARTY RIGHTS; AND GOAFRICA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ANY PRODUCT OR SERVICE OFFERED OR DISPLAYED ON THE SITE.
9.3 Any material downloaded or otherwise obtained through the Site is done at each User’s sole discretion and risk and each User is solely responsible for any damage to goAfrica’s computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from goAfrica or through or from the Site shall create any warranty not expressly stated herein.
9.4 The Site may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall goAfrica and our affiliates be held liable for any such services or products.
9.5 Each User hereby agrees to indemnify and save goAfrica, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including legal costs on a full indemnity basis) which may arise from such User’s use of the Site or Services (including but not limited to the display of such User’s information on the Site) or from your breach of any of the terms and conditions of the Terms. Each User hereby further agrees to indemnify and save goAfrica, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from User’s breach of any representations and warranties made by User to goAfrica, including but not limited to those set forth in Section 7 hereunder.
9.6 Each User hereby further agrees to indemnify and save goAfrica, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, because of any claims asserted by Third Party Rights claimants or other third parties relating to products offered or displayed on the Site. Each User hereby further agrees that goAfrica is not responsible and shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. goAfrica reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with goAfrica in asserting any available defences.
9.7 goAfrica shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following.
a) the use or the inability to use the Site or Services;
b) any defect in goods, samples, data, information or services purchased or obtained from a User or any other third party through the Site;
c)violation of Third Party Rights or claims or demands that User’s manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Site may violate or may be asserted to violate Third Party Rights; or claims by any party that they are entitled to defence or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants;
d)unauthorised access by third parties to data or private information of any User;
e)statements or conduct of any User of the Site; or;
f) any matters relating to Services however arising, including negligence.
9.8 Notwithstanding any of the foregoing provisions, the aggregate liability of goAfrica, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each User for all claims arising from the use of the Site or Services during any calendar year shall be limited to the greater of (a) the amount of fees the User has paid to goAfrica during the calendar year (b) the maximum amount permitted in the applicable law. The preceding sentence shall not preclude the requirement by the User to prove actual damages. All claims arising from the use of the Site or Services must be filed within one (1) year from the date the cause of action arose, or such longer period as prescribed under any applicable law governing this Term of Use.
9.9 The limitations and exclusions of liability to you under the Terms #shall apply to the maximum extent permitted by law and shall apply whether or not goAfrica has been advised of or should have been aware of the possibility of any such losses arising.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 goAfrica Group Holdings Pte Ltd. is the sole owner or lawful licensee of all the rights and interests in the Site and the Site Content. The Site and Site Content embody trade secrets and other intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Site and Site Content shall remain with goAfrica, our affiliates or licensors of the Site Content, as the case may be. All rights not otherwise claimed under the Terms or by goAfrica are hereby reserved.
10.2 “GOAFRICA”, “GOAFRICA”, and related icons and logos are registered trademarks or trademarks or service marks of goAfrica (UK) Limited or goAfrica Group Holdings Pte Ltd. are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorised copying, modification, use or publication of these marks is strictly prohibited.
10.3 goAfrica may have independent third parties involved in the provision of the Services (e.g., the authentication and verification service providers). You may not use any trademark, service mark or logo of such independent third parties without prior written approval from such parties.
11. FORCE MAJEURE
11.1 Under no circumstances shall goAfrica be held liable for any delay or failure or disruption of the content or services delivered through the Site resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
12. MEMBER USE OF DISCUSSION BOARDS ON THE SITE
12.1 goAfrica holds the discretion to provide Members with the use of discussion boards on the Site free of charge to promote and encourage open, honest and respectful communication between all our Members. The discussion boards on the Site shall not be used as a marketing platform by Members and Members shall not post any information relating to trade leads, promotion of their products or their company profile.
12.2 Each Member acknowledges that all data, text, software, music, sound, photographs, graphics, video, messages or other materials (“content”), whether publicly posted or privately transmitted through a discussion board on the Site, are the sole responsibility of such Member from whom the content originated. This means that the posting Member, and not goAfrica, is entirely responsible for all content that is uploaded or posted via our discussion boards on the Site. goAfrica does not control the content posted via discussion boards and therefore does not guarantee the accuracy, integrity or quality of such content.
12.3 goAfrica reserves the right to delete or edit any postings in its sole discretion without prior notice. goAfrica may monitor posting activities of any Member who is in breach of this Agreement and may restrict their ability to post messages on the discussion boards on the Site. Under no circumstances will goAfrica be liable in any way for any content, including (without limitation) any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of the discussion boards by such Member. Each Member agrees to evaluate and bear all risks associated with the use of any content including any reliance on its accuracy or completeness. Each Member understands that by using the goAfrica discussion boards on the Site, such Member may be exposed to content that is offensive, indecent or objectionable.
12.4 Without prejudice to each Member’s responsibilities under Clause 6 [Member Responsibility] of this Agreement, each Member agrees not to use the discussion boards on the Site to:
a)upload, post or e-mail any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
b) harm minors in any way;
c)impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity or disguise the origin of any content;
d)“stalk” or otherwise harass another;
e)collect or store personal data about other users;
f)upload, post or e-mail any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
g)upload, post or e-mail any content that infringes any intellectual property rights or other legitimate rights of any party;
h)upload, post or e-mail any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, or any other form of solicitation;
i)upload, post or e-mail any content that contains computer viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
j)upload, post or e-mail any content that contains a complaint regarding goAfrica’s services or refers to such a complaint on the Site or to any other Members; any such complaint must be directed to the customer service e-mail on the Site; or
k)violate any applicable national or internal laws or regulations.
12.5 Each Member acknowledges that goAfrica does not pre-screen content but that goAfrica shall have the right (though not the obligation) in its sole discretion to move, modify or remove any content that is posted or uploaded on the discussion boards on the Site.
12.6 Each Member grants to goAfrica a perpetual, world-wide, royalty-free irrevocable, non-exclusive licence (including the right to sub-license through multiple tiers) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content (in whole or part) such Member uploaded, posted or supplied to goAfrica for posting on the Sites and/or to incorporate such content in other works in any form, media or technology now known or developed.
12.7 Each Member shall indemnify and hold goAfrica and its subsidiaries, affiliates, employees, officers, agents or partners harmless from and against any direct or indirect loss or damage (including consequential loss and loss of profits, goodwill or business opportunities) arising from any third party claim in relation to any content such Member uploaded, posted or e-mailed on or through the discussion boards on the Site, such Member’s use of the discussion boards on the Site, or such Member’s breach of the provisions set out in Clause 12.4.
12.8 On being made aware of any such breaches, goAfrica may ban, delete or prohibit any content that relates to those breaches or that goAfrica in its sole discretion consider to be harmful to the public or the rights of goAfrica or any of its affiliates, licensors, partners or Members.
12.9 goAfrica reserves the right to take whatever action it deems necessary to prevent a Member’s breach of Clause 12.4 including the following:
a) issue a warning letter to the relevant Member (where the breaches are deemed by goAfrica to be minor); or
b) ban the relevant Member from discussion boards on the Site (where the breaches are deemed by goAfrica to be major).
All incidents will be logged and goAfrica’s decision shall be final in all such cases.
12.10 All information and/or other content posted on the Site by the goAfrica service team or by Members or third-party partners is supplied for information purposes only and shall not under any circumstances be construed as legal and/or business advice or a legal opinion. Members are encouraged to seek independent professional advice in such situations.
13. GENERAL PROVISIONS
13.1 Subject to any Additional Agreements, the Terms constitute the entire agreement between you and goAfrica with respect to and govern your use of the Site and Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
13.2 goAfrica and the User are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
13.3 If any provision of the Terms is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
13.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
13.5 goAfrica’s failure to enforce any right or failure to act with respect to any breach a User under the Terms will not constitute a waiver of that right nor a waiver of goAfrica’s right to act with respect to subsequent or similar breaches.
13.6 goAfrica shall have the right to assign the Terms (including all of its rights, titles, benefits, interests, and obligations and duties in the Terms to any person or entity (including any affiliates of goAfrica). The User may not assign, in whole or part, the Terms to any person or entity.
13.7 The Terms shall be governed by the laws of England (ENGLAND) without regard to its conflict of law provisions and the parties to the Terms hereby agree to submit to the exclusive jurisdiction of the courts of England.
13.8 If there is any conflict between the English version and another language version of the Terms, the English version shall prevail.
14.1 All legal notices or demands to or upon goAfrica shall be made in writing and sent to [email protected]personally, by courier, certified mail, or facsimile to the following entity and address: goAfrica (UK) Limited, Hamilton House, Mabledon Place, London, WC1H 9BB, UK. The notices shall be effective when they are received by goAfrica in any of the above-mentioned manner.
14.2 All legal notices or demands to or upon a User shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the User to goAfrica, or by posting such notice or demand on an area of the Site that is publicly accessible without a charge. Notice to a User shall be deemed to be received by such User if and when.
a) goAfrica is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User, or
b) immediately upon goAfrica posting such notice on an area of the Site that is publicly accessible without charge.
14.3 You agree that all agreements, notices, demands, disclosures and other communications that goAfrica sends to you electronically satisfy the legal requirement that such communication should be in writing.