WEBSITE TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS ARE BINDING AND ENFORCEABLE AGAINST ALL PERSONS THAT ACCESS THE JACKCAT WEBSITES OR ANY PART THEREOF IN TERMS OF SECTION 11 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002
1.1 In this agreement:
1.1.1 any reference to the singular includes the plural and vi ce versa;
1.1.2 any reference to natural persons includes legal persons and vice versa;
1.1.3 any reference to gender includes the other genders.
1.2 the clause headings in this agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
1.3 any reference to any legislation is to such legislation as at the signature date as amended or re-enacted from time to time.
1.4 words and expressions defined in any sub-clause shall, for the purpose of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
1.5 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any part, effect shall be given to it as if it were a substantive clause in the body of the agreement, notwithstanding that it is only contained in the interpretation clause.
1.6 if any period is referred to in this agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a business day, in which case the day shall be the next succeeding business day.
2.1 “this agreement” means these terms and conditions;
2.2 “the application” means the process by which the user applies, by completing the membership application form, to become a subscriber by providing the service provider with the user’s personal information;
2.3 “auto parts” means any motor vehicle part which would improve the performance of a motor vehicle and assist a motor vehicle in running properly;
2.4 “completion of the application” means the moment the user selects the “Get Started” submit button on the membership application form and the detail entered is simultaneously accepted by the website;
2.5 the “acceptance date” means the date the 1st (first) subscription fee is paid by the user to the service provider as provided for in 5 below;
2.6 “data messages” means the definition of data messages as set out in the ECT Act;
2.7 “the ECT Act” means the Electronic Communications and Transactions Act 25 of 2002;
2.8 “electronic transactions” means the definition of electronic transactions as set out in the ECT Act;
2.9 “the homepage” means the page which appears when a user enters http://www.jackcat.co.za into an internet browser;
2.10 “hyperlink” means a link on the website to any other page or website;
2.11 “intellectual property” means the service provider’s intellectual property rights in and to the website, the content, the software and databases, text, graphics, images, icons, hyperlinks and systems relating to the website and the online catalogue;
2.12 “the membership application form” is the form which the user must complete if the user wishes to gain access to the online catalogue;
2.13 “the online catalogue” means the data base owned by the service provider which contains information relating to auto parts available within South Africa and accessible to users on the website;
2.14 “the parties” means the user and the service provider;
2.15 “personal information” means all the information that the user enters into the online application or otherwise makes available to the service provider;
2.16 “service” means the service which the service provider provides to the user, being access to the online catalogue;
2.17 “service provider” means:
Registered Name: JackCat cc
Registration No: 2008/113690/23
Registered Address: 3 Carnarvon Road,
2.18 “subscription fee” means R160 payable monthly in advance by the user subject to clause 4.10 below;
2.19 “support desk” means access to an employee of the service provider telephonically who will provide the user with assistance with all matters relating to the website;
2.20 “target sites” means websites to which the user shall be redirected when selecting a hyperlink;
2.21 “third party payment and money transfer merchants” means Paypal, VCS, Moneybookers and or any other related merchants;
2.22 “user” means any person who enters or makes use of the website, notwithstanding the fact that said person only visited the home page of the website;
2.23 “VAT act” means the Value-Added Tax Act 89 of 1991;
2.24 “VAT” means value-added tax as defined by the VAT act;
2.25 “the website” means the jackcat sites located at http://www.jackcat.co.za and includes any part or element thereof including any other third party website hosted by the service provider.
3.1 It is recorded that the user wishes to use the service provider’s online catalogue to search for auto-parts within the Republic of South Africa.
3.2 The user acknowledges that the catalogue contains data and information which is confidential and the proprietary interests of the service provider.
3.3 The service provider wishes to allow the user access to the online catalogue provided the user enters into this subscription agreement with the service provider.
3.4 The user wishes to be granted access to the online catalogue and wishes to enter into this subscription agreement with the service provider.
3.5 The user hereby acknowledges that by using the website and entering into the subscription agreement it is bound by this agreement.
3.6 The parties hereby record the terms of this subscription agreement below.
4.1 The subscription fee shall be paid by the user to the service provider on the completion of the application and thereafter monthly in advance on or before the 1st (first) day of each month.
4.2 The subscription fee shall be paid to the service provider as set out in 5 below.
4.3 On payment of the subscription fee the user shall be allowed access to the online catalogue.
4.4 The service provider shall provide the user with two access codes, being a user name and password, which will enable the user to view the website and the online catalogue data.
4.5 The user shall use only the access codes allocated to him, shall keep the access codes strictly confidential and shall not allow any other person access to the website via his access codes. Where the principal user is an organization subscribing to multiple access facilities, then the user in this instance is any one of the organization’s employees or owners and no person outside of the organization may be allowed to access the online catalogue by any person belonging to such organization.
4.6 In the event that an unauthorised person, i.e. a person not being the authorised user, accesses the website using the user’s access codes, the authorised user and the unauthorised person concerned shall be deemed to be jointly and severally liable for any claim, loss or damage howsoever arising from such unauthorised access.
4.7 A user shall be entitled to access all of the data and information available in the online catalogue including but not limited to interrogation of information on vehicles and parts and the facility to interrogate or print out in text format a previously selected group of parts.
4.8 In the event that a user fails to pay the subscription fee to the service provider on or before the 1st (first) day of every month the user shall automatically be prohibited from accessing the online catalogue.
4.9 All the information provided by the user to the service provider in the application shall remain private and confidential. The service provider undertakes not to disclose any of the user’s information to any third party. In the event that this information is unlawfully accessed by a third party the service provider shall not be liable for any of the consequences thereof.
4.10 The amount of the subscription fee shall increase annually by an amount to be determined by the service provider in its sole discretion, taking into account various factors such as inflation.
4.11 The subscription fee is exclusive of VAT which shall be payable in accordance with the VAT act.
5.1 The user can choose to pay the subscription fee by one of the following methods:
5.1.1 electronic funds transfer into the following bank account:
Account Holder: Jackcat cc
Bank: First National Bank – FNB
Account No: 62245408506; or
5.1.2 credit card specifically but not limited to Mastercard, Visa, Maestro; or
5.1.3 direct debit order.
5.2 The service provider has contracted with third party payment and money transfer merchants who hold all or any credit or debit card details entered by the user in an encrypted format. The service provider cannot at any time and in any manner whatsoever access any credit or debit card details entered by the user whether in an encrypted format or not.
6.1 The service provider allows the user to view and print the content of the online catalogue, provided that such content is for the user’s use only.
6.2 The user shall use the content of the website for the purposes of obtaining information specifically pertaining to the use of motor vehicle spare parts as displayed by the online catalogue.
6.3 The service provider may provide an additional service to the user in the form of a support desk. The provision of a support desk by the service provider is not a term of this agreement and the service provider is under no obligation to ensure that a support desk is available to the user.
7 Intellectual property
It is recorded and agreed that all of the rights in and to the intellectual property vest in the service provider and nothing contained or implied in this agreement shall derogate from such rights in any way.
8 Software and equipment
The user undertakes to acquire and maintain, at his own expense, the computer hardware, software, communication lines and access accounts to access the internet and the website and/or download content from the website.
The service provider makes the following disclosures as required by the the ECT Act:
9.1 the website owner is the service provider;
9.2 the website address is http://www.jackcat.co.za;
9.3 the email address is: email@example.com;
9.4 user’s may lodge complaints concerning the website with the service provider at firstname.lastname@example.org;
9.5 In terms of section 42(1)(d) of the ECT Act, the cooling off provisions as set out in section 44 of the ECT Act do not apply to this website.
The service provider expressly reserves the right, in its sole and absolute discretion to do any of the following, at any time whatsoever without prior notice to the user:
10.1 change the content and/or services available from the website;
10.2 discontinue any aspect or service from the website; and/or
10.3 change the software or hardware required to maintain, access and use the website.
11.1 The service provider shall take all reasonable steps to protect the personal information of users.
11.2 The service provider shall not disclose any personal information from users unless the user consents in writing thereto or the service provider is obliged to do so through due legal process.
12 Links to third party sites
12.1 The website may provide hyperlinks to target sites not controlled by the service provider and such links should not be construed in any way as being an endorsement implied or otherwise by the service provider for the content of the target site.
12.2 The service provider has no control over the content of the target sites and shall not be liable in any manner whatsoever, for the access to, inability to access or content available, or unavailable, on or though such target sites.
13.1 The service provider shall take all reasonable steps to secure the content of the website from unauthorized access and/or disclosure. However the service provider does not warrant that the content of the website shall be entirely secure.
13.2 Any user who commits an offence as set out in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting loss and/or damage suffered and/or incurred by the service provider and its partners and/or affiliates.
14.1 Subject to the provisions of section 43(5) and (6) of the ECT Act, the service provider shall not be liable for any damage, loss or liability of any nature incurred by whomever and howsoever arising from or relating to:
14.1.1 access to the website;
14.1.2 access to the websites linked to the website;
14.1.3 inability to access the website;
14.1.4 content available on the website;
14.1.5 services available on the website;
14.1.6 hard copy printed documents and the use of content from the website;
14.1.7 any other reason not directly related to the service provider’s gross negligence however related to the website and/or this agreement.
14.2 The user shall satisfy himself or herself, prior to entering into this subscription agreement that the content available from and through the website meets the user’s requirements and is compatible with the user’s computer hardware and/or software. The service provider will not be liable for the user’s failure to so satisfy himself and/or the consequences thereof.
14.3 Information, ideas and opinions expressed on the website should not be construed in any way to be professional or other advice or the opinion of the service provider.
14.4 The service provider does not warrant or represent that the content and services available on the website will be true, correct or free from any errors. The service provider shall take all reasonable steps to ensure the quality and accuracy of content available on the website.
14.5 The service provider does not warrant or represent that the website shall be available at all times. User’s acknowledge that the website may be unavailable due to updates or other causes beyond the service provider’s control.
15 Section 21 of the ECT Act
The parties agree that:
15.1 the user shall be bound to these terms and conditions and such agreement is concluded in Cape Town, South Africa at the time the user enters the website for the first time or immediately after the user indicates consent to be bound by these terms and conditions by accepting same as provided for in 2.5 above;
15.2 data messages addressed by the user to the service provider shall be deemed to have been received if and when responded to;
15.3 data messages addressed to the user by the service provider shall be deemed to have been received by the user when the completed data message enters an information system designated or used for that purpose by the addressee and is capable of being retrieved and processed by the addressee;
15.4 data messages addressed by the user to the service provider shall be deemed to have been created and sent by the user from within the geographical boundaries of South Africa;
If a party is in default of any obligation which arises in terms of this agreement (“the defaulting party”) and such defaulting party persists in such failure or default after receipt of a written notice given by the other party (“the aggrieved party”) calling upon the defaulting party to remedy such failure or default within a period of 14 (fourteen) business days from receipt of the notice of such further additional period as the aggrieved party, in its sole discretion may determine, then the aggrieved party may without prejudice to any other rights which it may have in terms hereof or at law:
16.1.2 claim specific performance; or
16.1.3 cancel this agreement, such cancellation to be effective immediately upon receipt by the defaulting party of a written notice to that effect; and/or
16.1.4 claim any monies due and payable in terms of this agreement and to claim damages from the defaulting party.
17. Whole agreement
This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties other than those set out herein shall be binding on the parties.
No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all parties or their duly authorised representatives.
19. Jurisdiction and governing law
19.1 This agreement and any matter arising from it shall be subject to the jurisdiction of the High Court of South Africa, Western Cape High Court, held at Cape Town.
19.2 For the purposes of 19 above the parties hereby submit to the jurisdiction of the Court referred to in 19.1 above.
19.3 The website is controlled and operated from within the geographical boundaries of the Republic of South Africa and therefore this agreement shall be subject to and shall be governed by the laws of the Republic of South Africa.
No latitude, extension of time or other indulgence which, may be given or allowed by either party in respect of the performance of any obligation hereunder or the enforcement of any right arising from this agreement and no single or partial exercise of any right by any party shall under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of, or otherwise affect any of that party’s rights arising from this agreement.
In the event that any term or condition detailed herein is found unreasonable or invalid for any reason whatsoever, such term or condition shall be severable from the remaining terms and conditions, such severability shall not have any effect on the enforcement and application of the remaining terms.
22. Legal Costs
The service provider shall not be liable for any costs incurred by the user to obtain professional advice relating to these terms and conditions.