elite-only (PTY) LTD of website elite-only.club
SHOPPER’S TERMS AND CONDITIONS
By clicking “I agree to the terms and conditions of the elite-only.club Service Agreement” you conclude a binding agreement with elite-only (Pty) Ltd (“elite-only”), and below you will see in detail the terms and conditions which you agree to comply with while using the elite-only service. We know that these things can get long and boring, but it is important to us that you know how we work. Please pay particular attention to the clauses written in bold and underlined.
If there is anything that you are unsure of, please contact us before clicking “I agree”. If there is anything that you don’t agree with please do not click “I agree” and please do not make use of the elite-only platform.
These terms and conditions must be read along with elite-only’s Privacy Policy (https://www.elite-only.club/privacy-policy) and elite-only’s Fee Policy (https://www.elite-only.club/fee-policy), and by clicking “I agree” you warrant that you have read and agree to be bound by the content of both documents. elite-only may, in its sole discretion amend, modify or revise these Terms and Conditions at any time. In the event that elite-only decides to do so, a notification will be sent to your appointed e-mail address. The amendment, modification or revision will be effective from date and time of sending and your continued use of the elite-only’s Platform after such a notification has been sent will indicate to elite-only your acceptance thereof and you will be bound for all legal purposes by such amendments, modifications or revisions.
DEFINITIONS
The following words and phrases used in this agreement will have the meanings or interpretation assigned to them, unless otherwise indicated by the context:
· “Applicable Laws” means in relation to a person, the common law and all and any applicable:
(a) Statutes and subordinate legislation and regulations,
(b) Ordinances, legislations and directives,
(c) Codes of Practice, notices, circulars, judgements and decisions of the relevant authority,
(d) By-laws.
· "Agreement" means these terms and conditions read with the elite-only Privacy Policy and elite-only Fee Policy.
· “Appointed e-mail address” means the e-mail address reflected in your Registration Information, as amended from time to time.
· “Checkout" means:
(a) The user clicking the add to cart button after selecting the product;
(b) The user clicking on proceed to checkout button and either entering the required details or ensuring that the details on the Billing Address are correct;
(c) The user then being redirected to a summary of the transaction;
(d) The user thereafter being directed to the payment gateway;
(e) On completion of payment being directed to user’s Dashboard at which time the checkout will be complete.
· "Dashboard" means a page where you can manage your profile and account.
· “Delivery Period” means two (2) business days from checkout.
· “ECTA” means the Electronic Communications and Transactions Act 25 of 2002.
· "Fees" means any amount which elite-only charges in terms of elite-only’s Fee Policy.
· "Fee Policy" means the document as at www.elite-only.club/fee-policy.
· "Indemnified Party" means elite-only, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of elite-only, and each of their respective officers, employees, contractors, consultants and agents from time to time.
· "Intellectual Property Rights" means industrial and intellectual property whether protected by common law or under statute including (without limitation) copyright and neighbouring rights, all rights in relation to inventions (including registered patents and the benefit of any applications for a patent), registered and unregistered trademarks, registered and unregistered designs including drawings, circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world.
· "Privacy Policy" means the document as at www.elite-only.club/privacy-policy
· "Product” includes and means, but is not limited to: apparel, design, sculptures, music, fashion, video, photography, vouchers, prints, digital media, film, accessories, vouchers, paintings and consulting services.
· "Prohibited Products" are the products listed below which elite-only expressly prohibits Vendors from selling or offering for sale on the elite-only Platform. This includes but is not limited to product which any relevant local, provincial, national or international law or regulation prohibits being offered for sale.
(a) Products which may be hateful or racially, ethnically sexually or otherwise objectionable, or which contain child pornography, or are otherwise pornographic, or may be harmful to minors;
(b) Any products which are not the Vendor’s legal property or which the Vendor does not have the right to sell;
(c) goods that do not exist;
(d) any food not packaged or which does not comply with any laws relating to the sale of food to consumers by commercial merchants;
(e) firearms, explosives, or weapons;
(f) Any product which would cause elite-only to violate a law by advertising, offering or selling same;
(g) Stolen or counterfeit products;
(h) Any products which are dangerous;
(i) Any unregistered or registered securities;
(j) Products that infringe or otherwise violate the rights of others;
(k) Controlled substances.
· "Registration Information”" information provided by you when registering for the elite-only service.
· “elite-only” means a company duly incorporated with limited liability and registered according to the Company Laws of the Republic of South Africa, having its principal place at 4 Zastron Road, Milnerton, Cape Town.
· "elite-only Platform" means the Software as a Service ("SAAS") online system that makes trade between Vendors and Shoppers of product through elite-only possible.
· "elite-only Ratings and Review System” means the combination of ratings and comments provided by the Shoppers in reviewing various Vendors which are reflected below their listings.
· “Shopper” means an active, registered user of the elite-only Service who locates and purchases Product via the elite-only Service;
· "Site" or "Website" means a website by which elite-only offers the elite-only Platform from time to time, currently www.elite-only.club.
· “Store” means the online store created by the Vendor in order to list, promote and sell its Product.
· "Third-Party payment provider" means the third party that processes payments on behalf of elite-only users, being PayU.
· "user" or "users" means any Shopper(s) or Vendor(s), or someone who is otherwise using the Site.
· "VAT" means any value added tax, or other consumption tax, and will be charged at the rate prescribed by the Minister of Finance from time to time.
· "Vendor" means an active, authorised registered user of elite-only who has created a store on the elite-only Platform in order to list, sell and market Product.
· “Vis major” a superior force resulting from natural causes and without the intervention of human beings including, but not limited to hurricanes, tornados, earthquakes, flood.
· "we", "us", "our", "ourselves" and "elite-only" are used interchangeably in these Terms and Conditions and all mean elite-only.club or elite-only (Pty) Ltd as the case may be.
· "you" or "your" means you as a Shopper, and your successors and permitted assigns; and
· "your information" includes name, address, goods purchased and buying behaviour.
1. USER OF THE SITE
1.1 In order to purchase on this Site you will need to register and create a user account (the "Account"). By using the site:
a. You guarantee that your Registration Data is true, up to date, accurate and complete.
b. You will update the Registration Information to keep it accurate and complete. If elite-only suspects that your Registration Data is inaccurate, incomplete or non-current, elite-only has the right to suspend/terminate Your Account and refuse current or future use of the elite-only Platform.
c. You may never use another users Account without permission, and by using another users account you warrant that you have permission to do so;
d. You are solely responsible for your account and all activity on your account
e. You are solely responsible to keep your password secure. elite-only will incur no liability from failure to keep your password and access details secure.
f. You must notify elite-only immediately of any security breaches on your account. You will be liable for any breach to your account. elite-only will not be liable for any losses due to unauthorised access.
g. All Registration Information becomes the property of elite-only.
1.2 elite-only provides a platform for the sale of products and services, excluding prohibited products, and therefore:
a. elite-only does not guarantee or represent that the descriptions of any goods or services placed on this Site by Vendors will be accurate;
b. elite-only does not represent or hold out that we can or could confirm any matters relating to any information supplied to the Third-Party payment provider;
c. elite-only guarantees that the product you purchase will be delivered to your appointed address within two (2) business days of concluding the transaction.
1.3 elite-only undertakes to process all Registration Information in terms of the elite-only Privacy Policy at www.elite-only.club/privacy- policy.
1.4 elite-only shall have the right to rely, without further inquiry, on provision of the user identification(s) and password(s) as sufficient to authenticate use of the elite-only Service.
1.5 elite-only will not be involved in disputes between Shoppers and Vendors resulting from or relating to any transaction concluded on the elite-only Platform, or this Agreement.
1.6 The elite-only Service allows an active, authorized registered user of elite-only (the “Vendor”) to create a shop store on the elite-only Service in order to list, promote, market and sell Product;
1.7 The elite-only Service enables you the Shopper to locate and purchase the product of Vendors from across South Africa; and have the purchased product delivered to the address that you appoint during the checkout process;
1.8 The elite-only Platform is used as follows:
a. You choose your own username and password in order to login to the Platform and purchase Product on the Platform;
b. You are able to manage and update your Registration Information on your Dashboard.
1.9 elite-only may, in elite-only’s sole discretion, change some or all of elite-only’s services and Fees at any time. In the event elite-only introduces new services or Fees, a notification will be sent to your appointed e-mail address and such change or introduction will be effective from date and time of sending and your continued use of the elite-only’s Platform after such a notification has been sent will indicate to elite-only your acceptance thereof.
1.10 A statement will be made available to you on your Dashboard after conclusion of a transaction.
1.11 In order to close your account, you will be required to e-mail elite-only at info@elite-only.club.
1.12 Unless otherwise stated, all prices which appear on the Vendor stores are quoted in South African Rands.
1.13 elite-only may restrict and or terminate services to you at any moment without notice and without needing to furnish any reasons.
1.14 elite-only will not provide any computer equipment, network infrastructure, connections, hardware or software which you may require to access this Site.
2. RIGHTS OF THE SHOPPER IN USING THE elite-only PLATFORM
2.1. Subject to the terms and conditions of this Agreement, elite-only hereby grants you a limited, revocable, non-exclusive, non- transferable, worldwide right to use the elite-only Platform solely for the purposes described in this Agreement.
2.2. A Shopper is afforded the rights granted to a consumer and data subject in terms of the Electronic Communications and Transactions Act 25 of 2002.
2.3. Users may update, alter or edit their personal identification information at any time via the elite-only Dashboard and/or by following the instructions located in the elite-only Privacy Policy and are afforded all the rights granted to a data subject in terms of the Protection of Personal Information Act 4 of 2013.
2.4. elite-only reserves any and all rights not expressly granted to you herein. Except when expressly permitted by elite-only, you undertake not to:
a. modify, copy or make derivative works based on the elite-only Site or Platform;
b. resell, transfer, sell, sublicense, distribute, assign or otherwise commercially exploit the elite-only Site or Platform in any way;
c. reverse engineer, decompile, modify, translate, disassemble the elite-only Site or Platform with the intention of copying, modifying or making derivative works based on the elite-only Platform;
d. lease, rent or otherwise transfer rights to any aspect of the elite-only Site or Platform to a third party; or
e. interfere or modify the functionality or presentation of the elite-only Site or Platform. You further agree that upon termination or expiration of this right, you shall no longer have the right to use the elite-only Platform.
3. VENDOR DUTIES AND WARRANTIES
3.1. The Vendor hereby agrees and warrants to the Shopper and separately to elite-only that:
a. its information:
i. is accurate and not false, misleading, deceptive or fraudulent;
ii. does not breach any Intellectual Property Rights of a third party;
iii. is made in compliance with all applicable laws, government regulations or guidelines;
iv. is not falsified, threatening or offensive or does not otherwise constitute harassment;
v. does not contain confidential information or trade secrets of a third party unless it has obtained the consent of the third party owner;
vi. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
vii. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature; and
viii. does not contain child pornography, bestiality or any other obscene or offensive material.
3.2. The Vendor agrees and warrants to the Shopper and separately to elite-only that it is the legal owner of the Product it is offering for sale on the elite-only Platform and it has the legal capacity to conclude the sale and to pass the title in the goods and services to the successful Shopper.
3.3. The Vendor agrees and warrants to the Shopper and separately to elite-only that it will not hyperlink to or include descriptions of goods and services that you it is not offering for sale on this Site.
3.4. The Vendor agrees and warrants to the Shopper and separately to elite-only that:
a. the Product it offers for sale and sells on the elite-only Platform:
i. is reasonably fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to matters including, without limitation, the description of those goods and their price; and
ii. corresponds with the description that it has posted on its Store; and
iii. are not defective; and
iv. is free of any charge or encumbrance such that the Shopper will be able to enjoy quiet possession of those goods;
b. the services it offers for sale, and sells, on the elite-only Platform:
i. will be rendered with due care and skill; and
ii. any materials supplied in connection with any services will be reasonably fit for the purpose for which they have been supplied; and
iii. if the Shopper has made known the particular purpose for which the services are required or the result the Shopper wishes any services to achieve, then those services and any materials supplied in connection with those services will be reasonably fit for that purpose or are of such nature and quality that they might be reasonably expected to achieve that result.
c. the Product the Vendor offers for sale, and sells on this Site:
i. will be offered for sale, and sold, in compliance with the laws of the Republic of South Africa and especially that of the Consumer Protection Act 68 of 2008 that became effective on 1 April 2011;
ii. is legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods and services is not in contravention of any law.
3.5. In the information provided about the goods or services the Vendor offers for sale, or sells on this Site, the Vendor must set out the following information for sale of those goods or services, including the following:
a. purchase price;
b. returns policy;
c. unless stated to the contrary, any value will refer to South African Rands;
d. and the Vendor agrees that such terms and conditions will include any matters prescribed by us under this Agreement.
4. SHOPPER’S DUTIES AND WARRANTIES
4.1. You agree and warrant to each Vendor and separately to elite-only that:
a. The information provided by you:
i. is accurate and not false, misleading, deceptive or fraudulent;
ii. does not breach any Intellectual Property Rights of a third party;
iii. is made in compliance with all applicable laws, government regulations or guidelines;
iv. is not forged, threatening or offensive or otherwise constitutes harassment;
v. does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;
vi. does not contain any viruses, worms, Trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;
vii. will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature;
viii. you have the legal capacity to purchase any goods or service
4.2. You agree and warrant to each Vendor and separately to elite-only that the purchase of any goods and/or services through the elite-only Platform is entirely at your own risk.
4.3. You agree and warrant to each Vendor and separately to elite-only that that you have read and understand the Vendor’s Refund and Return policy and you agree to be bound by the terms thereof, and that you acknowledge that elite-only bears no onus or liability regarding any dispute relating to the refund of a product or any damages incurred in connection therewith.
4.4. You agree to make all payments through elite-only’s Third-Party payment provider, currently PayU.
5. NATURE OF THE TRANSACTION BETWEEN VENDOR AND SHOPPER
5.1. By placing an order on elite-only, the Shopper enters into a direct transaction and relationship with a Vendor via the elite-only Platform.
5.2. elite-only encourages the parties to conclude the transaction in a fair and equitable manner.
5.3. Upon completion of checkout and clicking of the “pay now” button, payment for the Product is due to elite-only’s account the details of which are as follows:
Bank : Nedbank Current Account
Branch : Paarl Mall
Account number : 1122839081
Branch code : 198765
5.4. elite-only is simply holding the funds for the relevant Vendor of the Product.
5.5. All sales are legally binding between the Vendor and the Shopper.
5.6. elite-only will deliver the product to you the Shopper within the Delivery Period, unless one of the following exceptional circumstances occur:
a. the Shopper fails to provide sufficient details to enable elite-only to complete delivery;
b. there are elements of vis major preventing elite-only from completing its delivery;
c. there is a power outage;
d. the Shopper’s identity cannot be authenticated and verified by the Vendor.
5.7. All services sold via the elite-only Service shall be rendered in accordance with the time schedules and terms set out by the Vendor.
5.8. Should one of the exceptional circumstances in clause 5.6 occur, elite-only endeavours to deliver the product as soon as readily possible after the termination of the exceptional circumstance.
5.9. You are entitled to rate a Vendor using the elite-only Rating and Review System.
5.10. The Vendor agrees that ratings and review scores may be provided about them and their products and services.
5.11. You are only permitted to rate and review a Vendor if there exists a completed transaction between yourself and the specific Vendor.
5.12. You undertake to provide ratings and reviews that are fair and in no way vexatious or malicious. Ratings and reviews cannot be amended or edited once submitted. Caution must be taken when rating or reviewing as these can be utilised for litigation purposes.
5.13. You may not abuse the Ratings and Review system, which includes adjusting ratings and reviews higher or lower by utilising another Shoppers account. Threatening racially offensive, abusive derogatory, discriminatory or profane language is also regarded as abuse of the system.
5.14. elite-only promotes and preserves freedom of expression as envisaged by Section 14 of the Constitution of the Republic of South Africa and will only remove ratings and reviews in exceptional circumstances, however you consent to the removal of any ratings and reviews which contravene the provisions of this clause.
5.15. elite-only will not be held responsible for the ratings and reviews the Vendor is given on this Site.
5.16. In the case of all disputes between a Vendor and Shopper, refer to the Disputes clauses below.
6. COMPLIANCE WITH THIS AGREEMENT
6.1. You agree that you will inform us immediately should you breach any terms of this agreement, or if you notice any conduct of another user which you suspect may breach a term of this agreement. This duty on you will be in place whether or not the breach is ongoing, has been remedied or could occur in the future.
6.2. You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement and we undertake not to limit or prejudice your right privacy, unless:
a. doing so is necessary to comply with an obligation imposed by law or could implicate us in criminal behaviour, a civil wrong, or any other claim by a person for which we may have to pay compensation;
b. when processing your information for the proper performance of a public law duty by a public body;
c. doing so is necessary to carry out the actions for the conclusion or performance of any contract or transaction to which you are a party with elite-only, the Vendor or Deliverer;
d. when your personal information is necessary for pursuing the legitimate interests of elite-only or of a third party to whom the information is supplied.
6.3. If we have any reason to believe or suspect, that you are not, or may be in danger of not, complying with or adhering to any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct within 48 hours, failure whereby elite-only is entitled in its sole discretion to terminate this agreement without any further notice.
6.4. If we have any reason to believe or suspect, that you are not, or may be in danger of not, complying with or adhering to any of the provisions of this Agreement, then we may send you a notification requesting you to rectify your conduct within 48 hours, failure whereby elite-only is entitled to terminate this agreement without any further notice. even though we are not obliged to do so;
6.5. Notwithstanding any rights in this Agreement, elite-only expressly reserves the right to terminate any user account with immediate effect and without any notice in the event the non-compliance with this Agreement threatens to cause serious prejudice to elite-only or its other users.
6.6. If you:
a. infringe or are suspected of infringing the Intellectual Property Rights of any other person;
b. are suspected of engaging, or have been convicted of engaging, in a settlement insurance or escrow investigation or otherwise, in any fraudulent or criminal activity in connection with this Site or any web site; or
c. otherwise breach this Agreement; we may, in our absolute discretion:
i. withhold from you, your use of any or all of the Services, and access to your information;
ii. delete or remove, without incurring any liability to you, any or all of your information and block in-coming and out-going data or message transfers;
iii. restore your access to the elite-only Platform if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and
iv. terminate the Agreement that we have entered into with you, and cancel our obligations to provide the Services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the Services are restored to you.
7. USE OF THIS SITE
7.1. In using this Site, you may not:
a. illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data;
b. alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;
c. impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorised computer functions to our computer systems or those of other users or any other person;
d. offer, sell, export any goods and services if this breaches any applicable laws to you;
e. engage in any practice or conduct that is unlawful under any laws applicable to you;
f. copy, modify, or distribute rights or content from our sites, services or tools or elite-only’s copyrights and trademarks;
g. collect information about users (including email addresses), trades listed or sales activities conducted on elite-only without the express permission of elite-only.
7.2. elite-only are fully committed to providing you with the best possible service, but accept no liability or responsibility for:
a. any interrupted, delayed or failed transmission, storage or delivery of information due to a power failure, vis major, software malfunction or equipment, labour unrest, or any other cause beyond the reasonable control of elite-only; or
b. any inaccurate, incomplete or inadequate information obtained from the Site supplied by you.
c. any direct or indirect loss or damages that may arise from:
i. any of your conduct that may result in a breach of this Agreement;
ii. elite-only denying you access to the website in the case where we believe or have reason to believe that you are conducting activities that are abusive, illegal, or could damage the reputation and or integrity of the website or put elite-only in disrepute;
iii. your reliance on any of the information, tools, content or materials that you obtain from the Site.
iv. any links to other websites from the Site as you agree that it is not within our power to control the content of or the products offered on those other websites.
7.3. In using this Site, elite-only does not and cannot guarantee:
a. the operation of this Site or the information, tools, content, or materials on this Site and you expressly acknowledge that you use this Site entirely at your own risk; and
b. that this Site, the information, tools, content or materials included on this Site, the elite-only servers, or any electronic communications sent by us are free from viruses or other harmful components.
7.4. In using this Site, you agree to the following Copyright provisions:
a. that no part of this Site may be copied or transmitted via any means available to you whether it be now or in the future;
b. that if you copy or transmit portions of this Site elite-only are entitled to claim damages against you, which will include the right to claim special, incidental, consequential or indirect damages. elite-only will also be allowed to claim for loss of profits and loss of business and will be entitled to recover all legal costs on a scale as between attorney and own client incurred in any such legal proceedings;
c. any unauthorised alteration, use or dissemination of the content or information on this Site is prohibited;
d. that nothing on this Site can be regarded or construed as granting any license or right to use any trademark without elite-only's prior written permission and or that of any third party;
e. elite-only cannot be held responsible for any consequences that may result from the unlawful breach of copyright or unlawful dissemination of information by third parties relating to information on this Site.
7.5. elite-only will not be liable for any damages of any kind or form arising from your use of this Site or from any information, tools, content or materials included on or otherwise made available to you through this Site, including, but not limited to, direct, incidental, punitive and or consequential damages.
7.6. In using information about other elite-only users on this Site, you agree:
a. to use user information only in accordance with applicable laws and regulations (including, without limitation, the Protection of Personal Information Act 4 of 2013 and other applicable data protection laws) and only for:
i. elite-only-transaction-related purposes that are not unsolicited commercial communications;
ii. using services offered through elite-only; and
iii. other purposes a user expressly agrees to.
b. to respect other users' privacy and disclose your privacy and security policies to them.
7.7. The information and material contained on this Site has been prepared in accordance with the Applicable Laws of the Republic of South Africa for use in the Republic of South Africa only. It may not comply with the laws of any other country. We make no representation that the information and material contained on this Site complies with the laws of any country other than the Republic of South Africa. If you choose to access this Site from outside the Republic of South Africa, you do so at your own risk and will be responsible for ensuring compliance with the laws of the country in which you are located.
8. LINKING TO THIRD PARTY WEBSITES
8.1. Any links or references to other web sites on this Site are provided for your convenience only and do not, and are not an express or implied endorsement by us, of those web sites, or the products and services contained on those web sites;
8.2. From time to time elite-only may employ the services of third parties to assist with the hosting and management of certain services and aspects of this Platform and Site. elite-only reasonably attempts to ensure that our sub-contractors comply with our Privacy Policy and generally accepted security standards and they will be accountable for any non-compliance;
8.3. Should you have any queries arising from transactions you conclude with such third parties, you will be required to contact them directly.
9. ENTERING INTO THIS AGREEMENT
By entering into this Agreement, you warrant and represent to us:
a. In the event of an natural person, i.e. an individual, that you are eighteen (18) years of age or older and possess full legal capacity and thereby enabling you to enter into this Agreement and perform your obligations under this Agreement; or
b. In the event that you are a juristic entity:
i. that your juristic entity is duly incorporated in terms of the applicable laws governing such registration and incorporation and have been issued with a certificate of commencement of business and possess full legal power to trade and conduct such business; and
ii. you whom register as a user on this Site possess the necessary authorization or legal capacity to act on behalf of your juristic entity and legally bind them to this Agreement in performing your obligations under this Agreement; and
iii. entering into this Agreement and concluding any transactions on the elite-only Platform does not violate your Constitution, Memorandum of Incorporation, Trust Deed or any incorporating documents.
10. SURETYSHIP
10.1. Should you the user enter into this Agreement on behalf of an juristic entity you hereby bind yourself as Surety and Co-Principal Debtor jointly and severally to elite-only for the due and proper fulfilment of all the duties and obligations of the juristic entity its successors-in-title or assigns, arising in terms of this Agreement.
10.2. You agree and declare that:
a. No act of indulgence, relaxation or grace granted by elite-only shall prejudice or affect elite-only’s rights in terms hereof, and if any action by elite-only results in a novation of any debt or liability arising out of or from the debt then you undertake and agree to be similarly bound as Surety and Co-Principal Debtor in favour of elite-only of such novated debt or liability.
b. This Suretyship shall remain in force as a continuing covering security until such time as all the obligations of you to elite-only have been duly and properly fulfilled.
c. You renounce the benefits of excussion, division and cession of action, the full meaning and effect whereof you know and understand.
d. elite-only shall be entitled at its option to institute any legal proceedings which may arise out of or in connection with this Suretyship in any Magistrate's Court having jurisdiction, notwithstanding the fact that the claim or value of the matter in dispute might exceed the jurisdiction of such Magistrate's Court.
e. Without derogating from the generality of any of the provisions of this Suretyship or the ambit of the obligations embraced, my liability shall cover all claims for compensation or damages which elite-only may at any time have as a result of the cancellation, termination or breach of any contract between elite-only and you which takes place pursuant to the provisions of section 37(1) of the Insolvency Act, No. 24 of 1936, as amended, or, where the juristic entity is a close corporation as applied by virtue of the provisions of the Close Corporations Act 69 of 1984, as amended.
f. It is agreed and declared that all admissions and acknowledgments of indebtedness shall be binding on me and that no amendment hereto, shall be valid unless reduced to writing and signed by all parties, including the amendment hereof.
11. TRANSACTIONS IN CASE OF A MINOR OR LEGAL INCAPACITY
11.1. If you are under 18 years of age or not legally permitted to enter into a binding and enforceable agreement, then you may not register as a user or make use of the services of elite-only, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian or spouse.
11.2. If your parent or legal guardian supervises you and gives his/her consent, then such person hereby agrees to be bound and to be liable and responsible for you and for all your duties and obligations in terms of the agreement entered into between yourself and elite-only.
11.3. elite-only strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should elite-only, in our sole discretion find that you have failed for whatsoever reason to comply with the aforementioned provisions or the remaining provisions of these terms and conditions, without prejudice to any other rights that we may have at law.
11.4. To the extent that you utilize this Site or the elite-only Platform, elite-only will be entitled to accept that you were or are supervised by and have obtained the consent of your parent or legal guardian or curator or trustee. The onus to prove otherwise shall rest with you and by clicking “I agree to the terms and conditions of elite-only.club Service Agreement” you provide prima facie evidence or possessing such consent or supervision.
12. PRIVACY STATEMENT
12.1. You hereby agree that the provisions of the privacy policy must be read in conjunction with this Agreement as if specifically incorporated herein.
12.2. elite-only agrees to notify you of:
a. The personal information being processed on behalf of elite-only and the purpose for which it is processed;
b. The third party collecting the information;
c. How the information is used or processed;
d. With whom the information may be shared;
e. What security measures are in place to prevent any loss or misuse of any information held by elite-only;
f. What your options and rights are in our processing of the information.
13. LIMITATION OF LIABILITY AND DISCLAIMER
13.1. Notwithstanding, and in addition to any other provision in this Agreement, you accept and agree that elite-only will not be liable to you or any other person for any damage/s, losses, expenses, or other amounts arising (including where the cause cannot be determined and where it arose directly or indirectly) from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this Site, the Services, or as a consequence of such use, access, reliance, or inability to access, including, but not limited to any loss relating to one or more, or a combination, of the following:
a. a failure, or error in the operation, of all or any part of this Site, our computer systems, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, or the taking offline of any of those computer systems or network resources for any reason;
b. any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person;
c. in relation to purchases or sales on this Site, that were not processed or accepted due to technical difficulties or for any reason whatsoever;
d. whether we or another person could have foreseen such a loss or type of loss, or were negligent or reckless, whether or not the loss was suffered in connection with a business or commercial enterprise, including, but not limited to, any economic or consequential loss or damage, any and all damage to, or loss of, any equipment, property, data, or other information possessed by you or any other person, any loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;
e. . any personal losses or hardship, stress and anxiety, nervous shock, or other personal suffering or condition;
f. any errors or omissions in any documentation or other literature provided by us, any errors or omissions in any data, on this Site, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;
g. any reliance on, the information and material contained on this Site about any goods and services or any other information or material whatsoever, or any information and material contained on, and the privacy of, web sites linked to this Site;
h. any conduct, act or omission, whether negligent, reckless, or otherwise, whether within any actual, ostensible, or apparent authority or not, at all on the part of our employees, agents, or authorised representatives.
i. for anything relating to the elite-only Rating and Review system;
j. any decision relating to the holding of an inquiry into an alleged breach on the part of one or more of the elite-only users.
13.2. To the extent permitted by law, all terms, conditions and warranties or representations, or representation whether express, implied, statutory, common law or otherwise relating to the Services or anything in these terms and conditions, are excluded unless expressly included in this Agreement.
14. INDEMNITY
14.1. While elite-only makes every reasonable effort to ensure that the content and information on the Site is accurate, complete and updated, we do not make any guarantee about the suitability of the products and services on the elite-only Platform nor that the content and information on the elite-only Site or Platform is accurate, complete and updated.
14.2. You agree to fully indemnify elite-only, its directors, and employees, and will not hold us responsible for any claim relating to your use of the elite-only Site or Platform.
14.3. You agree to fully indemnify elite-only, its directors and employees, from any errors or inaccuracies or incomplete information made available by third parties on the Site and agree that, we will not be liable for any loss or damages, including direct, indirect and consequential loss that may arise from any disclosure to or by any third parties.
14.4. You accept that elite-only is not responsible for any mistakes in the performance of any calculators or interactive tools used in the calculations.
14.5. All products and services purchased on the Site are subject to confirmation, and any terms or conditions relating to them, at the time of finalising any transactions.
14.6. You acknowledge that some of the content, information, materials or tools on the Site come from third parties or external sources, and you agree that elite-only is not responsible, and will not be held liable for any information or content received from these external sources.
14.7. Notwithstanding, and in addition to any other provision in this Agreement, you agree to indemnify elite-only and each Indemnified Party against and release them from, any claims, losses, liabilities, suits, demands, proceedings, costs or expenses (including legal costs on a full indemnity basis) directly or indirectly related to, or, arising out of:
a. your use of the Site or Platform;
b. your offering for sale and the sale of, and/or, your purchase of, any goods and services as a result of using the Site of Platform;
c. the reproduction, broadcast, transmission communication or making available of any information or material (including credit card details) by us or any users (other than you) made available by use of the Site or Platform;
d. any alleged breach of a person's rights (including, but not limited to, defamation or misleading or deceptive conduct) by a communication, broadcast or transmission made available by means of the Site or Platform; or
e. any claim by any person arising out of, or in connection with any cessation (temporary or permanent) of the supply of the Site or Platform in accordance with this Agreement.
15. DISPUTES
15.1. You and elite-only must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this Clause 16 before starting any proceedings (except proceedings seeking urgent relief).
15.2. The procedure for resolving a dispute is as follows:
a. first, either you or elite-only may give notice to the other about the nature of the dispute ("Notice") and you and elite-only will seek to negotiate a settlement within 14 working days of receipt of the Notice;
b. second, should the negotiations be unsuccessful and only to the extent that they are, you and elite-only undertake to within a further five (5) days to attempt to reach an agreement on an appropriate mediator to resolve the dispute; and
c. should the parties not be able to agree on a mediator or should the mediation be unsuccessful, the dispute if arbitrable in law will be referred to arbitration in terms of the Rules of the Arbitration Foundation of Southern Africa (“the Foundation”) to be arbitrated by an arbitrator appointed by the Foundation.
15.3. You will be liable for all costs incurred by us in the enforcement of any rights which we have in terms of this Agreement or in the recovery of any monies due to us, including collection charges and costs on an attorney and own client scale and costs of counsel as on brief whether incurred prior to or during the institution of legal proceedings or if judgement has been granted in connection with the satisfaction or enforcement of such judgement against you.
16. DISPUTES BETWEEN USERS OF elite-only:
16.1. elite-only encourages users to report user-to-user disputes to local law enforcement, or a certified mediation or arbitration entity, as applicable.
16.2. elite-only, for the benefit of users, may try to help users resolve disputes.
16.3. elite-only does so in elite-only’s sole discretion, and elite-only has no obligation to resolve disputes between users or between users and outside parties.
16.4. To the extent that elite-only attempts to resolve a dispute, elite-only will do so in good faith based solely on elite-only’s policies.
16.5. elite-only will not make judgments regarding legal issues or claims.
17. GENERAL TERMS AND CONDITIONS
elite-only has an absolute discretion to change, amend, revise or modify the terms of this Agreement at any time. Should elite-only do so, we will e-mail or circulate via any other electronic means details of any such changes, amendments, revisions or modifications on this Site that will be effective at the time and date of sending the notification to your appointed e-mail or other method of electronic circulation. Your continued use of the elite-only Platform after time and date of sending or circulation will indicate to elite-only your acceptance of such change, amendment, revision or modification.
18. SOLE AGREEMENT
18.1. This agreement read with the Privacy Policy and Fee Policy constitutes the sole memorandum of the agreement between the parties relating to the subject matter hereof and no variation of this agreement shall be of any force or effect unless reduced to writing and signed by both parties.
18.2. The parties acknowledge that there are no representations or warranties other than those contained herein.
19. NATURE OF THE RELATIONSHIP OF THE PARTIES
Nothing in this agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute elite-only as an agent or representative of the Shopper or vice versa.
20. FURTHER ASSURANCES
Each party to this agreement undertakes to do everything necessary and to act as may reasonably be expected and required by the other in order to give effect to all transactions concluded in terms of this agreement.
21. NON-WAIVER
No indulgence, extension of time, waiver or relaxation of any of the provisions granted by any of the parties to the other in regard to the enforcement of its rights under this agreement, shall be construed as a waiver of such rights (unless expressed as such in a written document signed by the indulgent party) nor shall it serve to stop the indulgent party from strictly enforcing its rights in the event of a subsequent breach thereof.
22. APPLICABLE LAW
22.1. This Agreement will be governed by the laws in force in the Republic of South Africa and the parties agree to submit to the jurisdiction of any competent court in South Africa in respect of any dispute arising from or connected to the effect, interpretation, enforcement, breach of this Agreement or the respective parties’ rights and obligations hereunder.
22.2. The parties agree to submit to the jurisdiction of the Magistrate’s Court in terms of section 45 of the Magistrates’ Courts Act 32 of 1944, irrespective of whether the amount claimed exceeds the applicable monetary limit allowed to institute a claim in the Magistrate’s Court.
23. APPOINTED ADDRESS FOR SERVICE OF NOTIFICATIONS AND LEGAL DOCUMENTS
23.1. The e-mail address that you used to register and later use to login to the elite-only Platform (your “appointed e-mail address”) will be your appointed e-mail address for all notification purposes of this agreement.
23.2. The Vendor may from time to time change its appointed e-mail address by electronically updating its information on the Dashboard, which change will be effective immediately.
23.3. By entering your physical address in the Registration Information and updating same on your Dashboard from time to time you nominate such address as your domicilium citandi et executandi or the address where you are prepared to receive all notices and legal documents in terms of this agreement.
23.4. A notice given as set out above shall be presumed to have been duly delivered:
a. at the time and on the date which it was sent by elite-only to your appointed e-mail address;
b. In the case of delivery to your physical address:
i. on the date of delivery by hand, telex or telefax;
