Terms and Conditions
eSpree is an online venue which facilitates a community marketplace in which buyers and sellers of independently created products may come together for trade. eSpree brings all forms of independent creativity at your doorstep into your home. eSpree’s passion is to help talented artists come together with buyers in a community driven marketplace with the purpose of selling the products they create. espree.co.za believes strongly in creating a safe, inviting venue which not only defines binding guidelines for trade but also fosters an independent responsible spirit. To that end all Users of the eSpree Service agree to abide by the terms and conditions of this Agreement including the eSpree Responsible Community Guidelines.
eSpree | www.espree.co.za
This Agreement is a binding agreement between you and eSpree. (Hereinafter referred to as “eSpree”).
It further sets out the terms and conditions governing your selling and purchasing goods on this Site, so please read it carefully. If you are uncertain, or you do not agree with the terms and conditions then please do not use the Website or Service.
By using or visiting this Website (together with all services available through the espree.co.za domain name and other sites owned, operated or controlled by eSpree and by using the eSpree Service) You agree, without limitation or qualification, to be bound by, and to comply with:
i) these Terms and Conditions
ii) eSpree’s Privacy Policy at www.espree.co.za/privacy-policy
iii) eSpree’s Fee Policy at www.espree.co.za/terms-and-conditions
These Terms and Conditions apply to all users of the Website and Service. The eSpree Service shall include the services described from time to time on the Website provided that eSpree reserves the right to change, improve and/or update the eSpree Service from time to time in accordance with these Terms and Conditions.
Consumer Rights
Nothing contained in these Terms and Conditions is intended to exclude, restrict, waive or replace any right or remedy afforded to a consumer under the Consumer Protection Act 68 of 2008 (“CPA”), the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”), or any other applicable South African law.
Where any provision of these Terms and Conditions conflicts with a statutory consumer right or remedy that may not lawfully be excluded, restricted or waived, the applicable statutory provision will prevail.
Returns, cancellations, repairs, replacements and refunds will be dealt with in accordance with applicable law and eSpree’s Returns and Refunds Policy.
PART 1: INTERPRETATION AND DEFINITIONS
1. Unless inconsistent with or otherwise indicated by the context:
i) Clause headings in this agreement are for convenience only and shall be ignored in its interpretation
ii) An expression which denotes a natural person shall include a juristic person and vice versa and the singular shall include the plural and vice versa
2. Where used in this agreement the following expressions shall bear the meanings assigned to them hereunder
“Agreement” means these terms and conditions.
“Buyer” an active, registered user or a “Guest User” of the eSpree Service who locates and purchases Product via the eSpree Service.
“Buyer payment options” the payment options eSpree makes available to a buyer now or in the future to pay for purchases on the site.
“Checkout process” shall mean:
i) a user clicking on add to cart button after browsing site
ii) a user being redirected to cart page
iii) if user wishes to purchase from multiple stores, there will be a courier fee for each store
iv) user will click on checkout button and proceed with required fields on page
v) once payment is completed user will be directed to Thank You page and checkout process will be complete
“Classic Membership Plan” means the fee plan as at www.espree.co.za/terms-and-conditions.
“Dashboard” shall mean the feature of the eSpree Service through which You manage Your Content and Account.
“Exempt product” all products sold through the eSpree store.
“Fees” means any charges which eSpree charge in terms of Clause 3 and eSpree Fee Policy.
“Fee Policy” means the policy as at www.espree.co.za/terms-and-conditions.
“Guest user” means a user who uses the site without registering an account.
“eSpree Marketing Materials” means any images, links, documents or other marketing materials pre-approved and provided by eSpree to You via the marketing materials area in the Dashboard that you are authorised to use.
“eSpree Store” means the store created to sell exempt products, and shall be treated as any other seller created store.
“eSpree Rating system” a service that may or may not be running at present, that allows for users to rate sellers.
“Indemnified Party” means eSpree, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of eSpree, 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 trade marks, registered and unregistered designs including drawings, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world.
“Privacy Policy” means the policy as at www.espree.co.za/privacy-policy.
“Premium Membership Plan” means the fee plan as at www.espree.co.za/terms-and-conditions.
“Product” shall mean any goods offered for sale through the Site, including, but not limited to, décor, apparel, accessories, food, vouchers, prints, fine art and digital media.
“Prohibited Products” shall mean products you may not offer for sale, or sell. This includes product you are prohibited from advertising or selling by any applicable local, provincial, national, or international law, including regulations having the force of law, or advertise, offer for sale, or sell any of the following products:
i) firearms, explosives, or weapons
ii) food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants
iii) any non-medical drugs, pharmaceutical drugs and marijuana/ marijuana related products
iv) any products that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature, or are harmful to minors
v) any controlled substances
vi) any products that are counterfeit or stolen
vii) any dangerous products
viii) any Products that do not, in fact, exist
ix) any registered or unregistered securities
x) any products that violate or infringe the rights of other parties
xi) any products that you do not have the legal right to sell
xii) any products where advertising, offering for sale or selling through eSpree or the Service would cause eSpree to violate any law
“Registration Data” means the information about users as requested by various eSpree registration forms.
“Seller” an active, authorized registered user of eSpree who has created a store on the eSpree Service in order to list, promote, market and sell a Product.
“Services” eSpree shall provide You with the “eSpree Service” or the “Service” which is a proprietary Internet-based Software as a Service (“SAAS”) system that facilitates the trade between sellers and buyers of a Product.
“Site” or “Website” means the Internet website by which eSpree offers the Services from time to time, currently www.espree.co.za.
“Third-Party payment provider” means any third party that processes payments on behalf of users, namely, PayFast at present.
“User” or “users” means any Buyer(s) or Seller(s), or someone who is otherwise using the Site.
“Transaction” is created when a Buyer completes eSpree’s checkout process.
User Account The registering of user information through the eSpree Service, in order to either create a store and sell a Product through eSpree or in order to purchase a Product through eSpree.
“VAT” means any value added tax, or other consumption tax.
“Vendor” means a Seller and the terms “Vendor” and “Seller” may be used interchangeably where the context requires.
“We”, “us”, “our”, “ourselves” and “eSpree” are used interchangeably in this Agreement and all mean www.espree.co.za.
“You” or “your” means you, whether as a Buyer and/or you as a Seller, as the case requires, or otherwise, and your successors and permitted assigns.
“Your information” includes all information you provide to us in using this Site, including, without limitation, as applicable:
i) your registration details, including name and address details
ii) your credit card details
iii) the information about any goods that you post on this Site
iv) the information that we learn about you as a result of your use of this Site, including without limitation, through the goods you post on this Site if you are a Seller, and the goods you purchase if you are a Buyer
PART 2: Trading on this Site
1.1 In order to create a store and sell a Product through the eSpree Service you will have to create and register a user account and in order to purchase a Product through the eSpree Service you may have to create and register a user account (the “Account”). At all times You represent and warrant that:
i) your Registration Data is true, accurate, current, and complete (apart from optional items)
ii) You will maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If eSpree suspects that your Registration Data is untrue, inaccurate, not current or incomplete, eSpree has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website or Service
iii) You may never use another’s Account without permission
iv) You are solely responsible for the activity that occurs on Your Account, and You must keep Your Account password secure:
– You must notify eSpree immediately of any breach of security or unauthorized use of Your Account
– You will be liable for any use made of Your Account or password and the losses of eSpree or others due to such unauthorized use
– eSpree will not be liable for Your losses caused by any unauthorized use of Your Account
v) eSpree reserves the right to use and reuse all Registration Data subject to the eSpree Privacy Policy at www.espree.co.za/privacy-policy
vi) eSpree 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 eSpree Service
1.2 Except where eSpree is itself identified as the supplier or seller of a Product, eSpree operates an online marketplace through which independent Sellers may offer Products to Buyers.
i) Sellers are responsible for the accuracy of their Product listings and for complying with their obligations relating to the Products they supply, including fulfilment and delivery obligations.
ii) While eSpree takes reasonable measures to facilitate transactions and maintain the integrity of the marketplace, eSpree cannot guarantee the conduct or performance of every independent Seller or Buyer.
iii) Nothing in this clause excludes, restricts or limits any responsibility or liability that eSpree may have under the CPA, ECTA or other applicable South African law.
1.3 eSpree is not obliged to resolve disputes between Buyers and Sellers, but may assist in accordance with clause 16.4.
1.4 We do not act as agent for either the Seller or the Buyer in either the making of the offer, by the placement of the goods on the site for sale, or the acceptance of such offer.
The eSpree Service
2.1 The eSpree Service allows an active, authorized registered user of eSpree to create a store on the eSpree Service in order to list, promote, market and sell Product (the “Seller”).
i) The eSpree Service enables You the Seller to:
– upload Content
– add, edit and manage Content
– add advertising creative and other marketing messages in Your efforts to sell Your Product
ii) The eSpree Service allows an active, registered user or a “Guest User” of the eSpree Service to locate and purchase Product via the eSpree Service (the “Buyer”)
2.2 We will provide you with the eSpree Service:
i) We will provide you with a username and password in order to login as required
ii) We reserve the right to alter or vary your preferred username and password at any time and will notify you of any such alteration (by email where possible)
2.3 You agree to provide all necessary equipment, network connections and software to access this Site.
2.4 You agree that eSpree may restrict and/or terminate its services to you at any point in time to the extent permitted by applicable law with reasonable grounds such as breach, fraud, security, marketplace integrity, legal compliance.
2.5 eSpree facilitates the communication between Users on the eSpree Service. We accept no responsibility or liability for the content of User to User communications on the Service.
2.6 The eSpree Service is provided subject to these Terms and Conditions. Fees properly charged for Services already rendered by eSpree are ordinarily non-refundable, except where otherwise provided in these Terms, eSpree’s applicable policies, or where a refund or other remedy is required by applicable law.
2.7 Right to Use the eSpree Service:
i) Subject to the terms and conditions of this Agreement, and limited solely to the extent necessary to use the eSpree Service
ii) eSpree hereby grants You a limited, revocable, non-exclusive, non- transferable, worldwide right to use the eSpree solely for the purposes described in this Agreement
iii) All rights not expressly granted to You are reserved by eSpree except as expressly permitted by eSpree, and You shall not:
– license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the eSpree Service in any way
– modify or make derivative works based on the eSpree Service
– reverse engineer, decompile, modify, translate, disassemble or create derivative works based on the eSpree Service;
– rent, lease or otherwise transfer rights to any aspect of the eSpree Service
– take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the eSpree Service. You further agree that upon termination or expiration of this right, You shall no longer have the right to use the eSpree Service.
Fees
3.1 You are responsible for all transaction fees and other fees (the “Fees”) you have agreed to via the eSpree Service.
3.2 eSpree charges You a percentage of the sale price when Your Product sells. When you list a Product for Sale, You have an opportunity to review and accept the Fees You will be charged.
3.3 eSpree’s Fee Policy is subject to change and is outlined below:
– In terms of eSpree’s Fee Policy two plans are offered to you, namely:
i) Classic Membership Plan
ii) Premium Membership Plan
– When you have chosen your Membership Plan:
i) then the seller shall select said Plan and proceed to checkout
ii) Therefore payment shall be made to eSpree in advance
iii) if you are on a Classic or Premium Membership Plan, it will automatically renew at the time of expiry
3.4 As stated fully in our Fee Policy, upon a seller making a sale, commissions and bank fees shall automatically be deducted and payments to seller will then be effected instantly through the Payfast Merchant split payment feature via eSpree.
3.5 Changes to the Fees are effective at the time You accept the Fees or after eSpree provides You with at least fourteen (14) days notice by posting the changes on the Website. Notwithstanding the foregoing, eSpree may choose to temporarily change the Fees for eSpree’s services for promotional events. Such changes are effective when eSpree posts the temporary promotional event on the Website.
3.6 eSpree may, in accordance with these terms, change some or all of eSpree’s services and Fees at any time. In the event eSpree introduces a new service, the Fees for that service are effective at the launch of the service.
3.7 You are responsible for paying all Fees and applicable taxes associated with using the eSpree Service.
3.8 eSpree’s obligations hereunder are conditioned upon Your fulfilment of all payment obligations to eSpree. If you fail to meet your obligations then eSpree shall have the right to suspend delivery of the eSpree Service to You, in whole or in part.
– Any dispute concerning the calculation of Fees should be brought to eSpree’s attention within forty-five (45) days of the relevant statement date and should include sufficient details for eSpree to investigate the dispute.
– Failure to raise a dispute within this period may affect eSpree’s ability to investigate or resolve the matter administratively, but nothing in this clause limits any right or remedy that may not lawfully be excluded or limited under applicable law.
3.9 You may close Your Account by notifying eSpree via the eSpree Service.
3.10 We may choose to alter or remove any Services or withdraw any Services offered and change our fee structure, billing and credit rules from time to time, for promotional events and such changes are effective for the dates specified when we post such a promotion on this Site.
3.11 Unless otherwise stated, all fees are quoted in South African Rand and are inclusive of VAT.
3.12 Users are given the right to sell items on this Site by paying the relevant fees. This does not involve purchasing the rights to the actual web pages, which remain the property of eSpree. We further reserve the right in our sole discretion to place third party advertisements on the pages without your consent or payment to you.
Fees – Billing, and Commission Structures
3.13 The Marketplace Infrastructure Fee – To maintain active seller listings and continuous catalog synchronization on the eSpree platform, the Vendor shall pay a recurring Marketplace Infrastructure Fee of R567.00 (Five Hundred and Sixty-Seven Rand) for Classic Membership or R807.00 (Eight Hundred and Seven Rand) for Premium Membership, billed quarterly upfront every ninety (90) days. This fee acts as a software licensing and service fee for the use of eSpree’s proprietary automated store-synchronization tools.
3.14 Automated Recurring Billing Consent – By completing the initial platform onboarding and checking out using the integrated payment gateway (PayFast), the Vendor explicitly authorizes eSpree to securely tokenize their payment card or account details. The system will automatically execute a recurring deduction of R567.00 (Classic Membership) or R807.00 (Premium Membership) every ninety (90) calendar days from the initial registration date.
3.15 Cancellations, Notice Periods, and Non-Refundability – The quarterly upfront fee is ordinarily non-refundable once processed, except where otherwise required by applicable law or expressly provided in these Terms, as it secures the platform’s cloud server hosting and API data-transfer limits for that specific 90-day window. The Vendor retains the right to cancel their subscription at any time via their dashboard profile. Upon cancellation, the vendor’s catalog will remain active on the marketplace until the final minute of the currently paid 90-day cycle, after which automatic sync updates will disconnect.
3.16 Marketplace Transaction Success Fee (Commission) – In addition to the infrastructure subscription fee, eSpree charges a flat 12% (Twelve Percent) Marketplace Success Fee on the gross retail purchase price of every individual product sold on the Classic Membership Plan and 10% (Ten Percent) Marketplace Success Fee on the gross retail purchase price of every individual product sold on the Premium Membership Plan through the platform. This commission will be handled automatically at the exact moment of user checkout via an integrated split-payment gateway. The balance of the Product purchase value, after deduction of the applicable Marketplace Success Fee and any other agreed charges, is routed to the Vendor.
Seller
4.1 Subject to this Clause 4 and Clause 3, you may post the goods that you wish to offer for sale on the Site.
4.2 You agree that we or our nominated agent may undertake any necessary credit checks on you and/or your credit card where applicable.
4.3 In addition to any other rights we may have under this Agreement, if you fail to comply with Clause 4.2, we may prevent you from using the Services of this site.
4.4 You agree and warrant to the Buyer of those goods and separately to us that:
– your 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 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) does not contain child pornography, bestiality or any other obscene or offensive material
– you are the legal owner of the goods you are offering for sale on this Site and you have the legal capacity to conclude the sale and to pass the title in the goods to the successful Buyer
– you will not hyperlink to or include descriptions of goods that you are not offering for sale on this Site;
4.5 In addition to Clause 4.4, you represent and warrant to us and separately to the successful Buyer that:
– the goods you offer for sale and sell, on this Site:
i) are 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
ii) correspond with the description that you have posted on this Site
iii) will correspond with any samples
iv) are not defective
v) are free of any charge or encumbrance such that the Buyer will be able to enjoy quiet possession of those goods
– the goods you offer for sale, and sell 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.
ii) are legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods is not in contravention of any law
4.6 In the information provided about the goods the Seller offers for sale, or sells on this Site, the Seller must set out the terms and conditions for sale of those goods, including the following:
i) payment terms
ii) terms of delivery
iii) Each Seller must maintain a clear and accurate returns policy, which will be made available to Buyers on the Seller’s shop and/or applicable Product pages. A Seller’s returns policy may provide Buyers with additional or more favourable return, exchange or refund options, but may not exclude, restrict or misrepresent any right or remedy available to a Buyer under the Consumer Protection Act 68 of 2008 (“CPA”), the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”), or other applicable South African law. Where a Buyer has a statutory right to cancel a transaction, return a Product, or request a repair, replacement, refund or other remedy, the Seller must honour that right in accordance with applicable law, irrespective of any more restrictive provision in the Seller’s own returns policy. Where no statutory right of return applies, a Seller’s published returns policy will determine whether a voluntary return, exchange or refund is available and any reasonable conditions applicable to that return. Certain Products, including perishable goods, custom-made or personalised goods, and other Products prescribed by applicable law, may be excluded from particular cancellation or cooling-off rights. Such exclusions do not affect any separate statutory rights or remedies that may apply where a Product is defective, unsafe, incorrectly supplied, misdescribed or otherwise fails to comply with applicable consumer law. The responsibility for reasonable return delivery or courier costs will be determined in accordance with applicable law, the reason for the return and, where the law does not prescribe responsibility for those costs, the Seller’s published returns policy. A Seller must process an approved return, replacement, repair or refund within the period required by applicable law or, where no statutory period applies, within a reasonable period after receiving the returned Product or otherwise confirming the Buyer’s entitlement to the applicable remedy.
iv) Where a Seller’s returns policy is imported, synchronised or otherwise displayed on eSpree from a Seller-controlled source, the Seller remains responsible for the content, accuracy and legal compliance of that policy.
v) Where eSpree reasonably believes that any Product listing, Seller policy or other Seller-supplied content may contravene applicable law or these Terms and Conditions, eSpree may require the Seller to review or correct that content within a reasonable period. Where the Seller fails to do so, or where reasonably necessary to protect consumers or comply with applicable law, eSpree may suspend or remove the affected Product listing or Seller content, or suspend the Seller’s access to the eSpree marketplace, subject to these Terms and applicable law.
vi) taxes, duties and costs (including, without limitation, VAT, or other consumption taxes, customs and other import duties and tariffs) payable by the Buyer
vii) unless stated to the contrary, any value will be construed to refer to South African Rands
viii) and the Seller agrees that such terms and conditions will include any matters prescribed by us under this Agreement
Buyer
5.1 You agree and warrant to each Seller and separately to us that:
i) your information:
– is accurate and not false, misleading, deceptive or fraudulent
– does not breach any Intellectual Property Rights of a third party
– is made in compliance with all applicable laws, government regulations or guidelines
– is not forged, threatening or offensive or otherwise constitutes harassment
– does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner
– 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
will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature
ii) you have the legal capacity to purchase any goods and, will not otherwise be breaching any law in purchasing those goods.
iii) you will not make an offer to purchase any goods on this Site unless you are able, and have sufficient, available capacity to pay for those goods.
iv) Buyers are responsible for reviewing the description, specifications, price and other information relating to a Product before completing a purchase.
Nothing in this clause limits a Buyer’s rights or remedies in respect of defective, unsafe, incorrectly described, unsuitable or non-conforming goods under the CPA or other applicable law.
5.2 You agree that you will utilise the Buyer Payment options made available to you by eSpree namely;
i) the use of the third- party payment provider
ii) credit card payments via a secure payment gateway
Transaction between Seller and Buyer
6.1 In addition to this clause and clause 4 and clause 5, when you place an order on eSpree, you are entering into a direct transaction with an individual Seller (facilitated by the eSpree Service).
6.2 Once the transaction is completed the Buyer must pay the Seller utilizing a Buyer Payment option.
6.3 Once a transaction has been concluded, the sale is binding on the Seller and Buyer, subject to any right of cancellation, return, repair, replacement, refund or other remedy available under these Terms and Conditions, eSpree’s Returns and Refunds Policy, the CPA, ECTA or other applicable South African law.
6.4 The Seller is obligated to ship the order or otherwise complete the Transaction with the Buyer in a prompt manner, unless there is an exceptional circumstance, such as:
i) the Buyer fails to meet the terms of the Seller’s listing, or
ii) the Seller cannot authenticate the Buyer’s identity. The Buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance
6.5 You may rate a seller using the eSpree Rating system:
i) the Seller agrees that feedback, comments and ratings scores may be provided about them
ii) You are only permitted to rate a user who is a Seller if you have interacted (completed a transaction) with that Seller
iii) You are responsible for the rating being fair, reasonable and in no way malicious. Comments and ratings cannot be edited once submitted. Therefore please be cautious when adding your comment, as you are unable to edit it once you have submitted it. You could also be held liable for damage(s) to the Seller if legal proceedings are taken against you for your comment
iv) You may not abuse the rating system. Abuse of the system includes using accounts of your friends or your own secondary accounts to lower the rating of another user or raise your own rating. Threatening, abusive, racially vilifying, discriminatory or profane language is also abuse of the system and is not allowed
v) We would like to promote and preserve free speech and therefore will remove feedback only in exceptional circumstances
vi) eSpree will not be held responsible for the rating the seller is given, and for any comment remaining on the site
6.6 In the case of all disputes between a Seller and Buyer, refer to clause 16.4.
The eSpree Dashboard
7.1 By using the eSpree Service You may make numerous selections about Your Account and the ingestion, presentation, management, marketing, and distribution of your Content via the eSpree Dashboard:
i) You may change Your selections regarding each to the extent permitted by the Dashboard
ii) In all cases, Your last submissions reflected in the eSpree database shall be conclusive in the event of any dispute.
7.2 Users may edit, update or alter their personally identifiable information at any time via the Dashboard and/or by following the instructions located in the eSpree Privacy Policy.
Part 3: General Terms and Conditions
8.1 eSpree may amend these Terms and Conditions from time to time where reasonably necessary, including to reflect changes to the eSpree Service, business operations or applicable law. Material amendments will be published on the Site and will take effect from the date stated in the updated Terms or accompanying notice. Where required by applicable law, reasonable notice of a material amendment will be provided.
8.2 Continued use of the eSpree Service after an amendment has taken effect constitutes acceptance of the amended Terms to the extent permitted by applicable law. No amendment will retrospectively remove or materially reduce a statutory consumer right or remedy relating to a transaction concluded before the amendment took effect.
Compliance with these Terms and Conditions
9.1 You agree to promptly inform us of any breach by you of the terms of this Agreement and of any conduct of another user that you think may be a breach of this Agreement, whether the conduct has ceased, is continuing, or may occur in the future.
9.2 You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement. If we do, then we will respect your confidentiality, unless:
i) doing so would 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
ii) the law compels, requires, or makes it prudent and desirable for us to divulge or disclose the information we hold or know or any documents we possess
iii) we consider it necessary or desirable to make disclosures to preserve or enforce our interests or rights
9.3 If we believe, whether or not we have conducted any monitoring, that you are not, or may be in danger of not, complying with any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct (although we will not be obliged to do so).
9.4 If you:
i) infringe or are suspected of infringing the Intellectual Property Rights of any other person
ii) are suspected of having, or are found by conviction, settlement insurance or escrow investigation or otherwise, to have engaged in any fraudulent or other criminal activity in connection with this Site or any other web site
iii) have an overdue payment on your eSpree Account
iv) otherwise breach this Agreement; we may:
– withhold from you, your use of any or all of the Services, and access to your information
– 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
– restore the Services if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis
– 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
Use of the Site
10.1 In using this Site, you must not:
i) illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data
ii) 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
iii) 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
iv) offer, sell, export any goods if this breaches any law applicable to you
v) engage in any practice or conduct that is unlawful under any laws applicable to you
vi) copy, modify, or distribute rights or content from our sites, services or tools or eSpree’s copyrights and trademarks
vii) harvest or otherwise collect information about users (including email addresses), trades listed or sales activities conducted on eSpree without the express permission of eSpree
10.2 The Site may contain links to websites or services operated by independent third parties. Such links are provided for convenience and do not necessarily constitute an endorsement by eSpree of the third-party website, service, product or content. eSpree does not control independent third-party websites and is not responsible for their content, availability or privacy practices, except to the extent that responsibility cannot lawfully be excluded.
10.3 The information and material contained on this Site has been prepared in accordance with the 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 (including any intellectual property 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.
10.4 Using information about other eSpree users:
– You agree to use user information only in accordance with applicable laws and regulations (including, without limitation, data protection laws) and only for:
i) eSpree-transaction-related purposes that are not unsolicited commercial communications
ii) using services offered through eSpree
iii) other purposes a user expressly agrees to
– You agree to respect other users’ privacy and disclose your privacy and security policies to them. By law, you must give other users a chance to remove themselves from your database and a chance to review the information you have collected about them
Entering into this Agreement
11. You represent and warrant to us:
i) If you are eighteen (18) years of age or older, you represent that you are of full legal capacity to enter into this Agreement and perform your obligations under it. If you are under eighteen (18), you may only register, use the eSpree Service or enter into a transaction with the supervision and consent of your parent or legal guardian, as set out below.
ii) if you are a juristic entity:
– that you are duly incorporated and have been issued with a certificate of commencement of business and have the power to own/sell property
– entering into this Agreement does not violate your Constitution
– you have the power and have taken all corporate and other action required to enter into this Agreement and to authorise entering into this Agreement and performing your obligations under this Agreement
iii) Transactions in case of a minor:
– If you are under 18 years of age or if you are 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 eSpree, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian
– 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 obligations or duties in terms of the agreement entered into between yourself and eSpree
– We strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should eSpree, 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
– To the extent that you utilize our services, we shall deem it that you were / are supervised by and that you have obtained the consent of your parent or legal guardian. The onus to prove that you were not supervised or did obtain the requisite consent shall rest with you
Licence and Use of, your Information
12.1 You hereby grant to us a non-exclusive, irrevocable, worldwide, perpetual, royalty- free right to exercise the Intellectual Property Rights you have in your information, in whatever medium.
12.2 You further hereby grant eSpree the right to use Your trademark, logo and Content (“Your Branding”) in any particular marketing and/or promotional campaign initiated by eSpree in all forms of media both physical and digital.
– You agree to:
i) permit eSpree to utilize Your Branding in marketing materials and on its website
ii) permit eSpree to identify You as a customer
12.3 You are not authorized to use the eSpree trademark or logo (the “eSpree Branding”) in any manner without the express written consent from eSpree- notwithstanding the foregoing, You are authorized to use the eSpree Marketing Materials.
12.4 Subject to Clause 12.1 to Clause 12.3, we agree to use your information only in accordance with the Privacy Statement below and further hereby acknowledge and agree as follows:
i) You shall retain all right, title and interest, including all intellectual property rights, in and to any of your content and your branding you provide to eSpree and any other property, and/or material belonging to you, and nothing in this agreement shall confer any license or right of ownership in such material
ii) eSpree shall retain all right, title, and interest, including all intellectual property rights, in and to any of the eSpree Service, eSpree branding, website, and technology provided by eSpree, and any other property, and/ or material belonging to eSpree, and nothing in this agreement shall confer any license or right of ownership in such material
Privacy Statement to be read in Conjunction with Privacy Policy
This privacy statement discloses the privacy practices for the www.espree.co.za site.
13. We have agreed to notify you:
i) What personally identifiable information of yours or third party personal identification is collected from you via this site
ii) The organization collecting the information
iii) How the information is used
iv) With whom the information may be shared
v) What choices are available to you regarding collection, use and distribution of the information
vi) The kind of security procedures that are in place to protect the loss, misuse or alteration of Information under our control
vii) How you can correct any inaccuracies in the information
Disclaimer and Limitation of Liability
14.1 To the fullest extent permitted by applicable law, eSpree will not be liable for indirect, incidental, special or consequential loss arising solely from:
i) temporary interruption or unavailability of the Site or eSpree Service;
ii) telecommunications, hosting, payment-processing or other independent third-party service failures outside eSpree’s reasonable control;
iii) scheduled or emergency maintenance;
iv) unauthorised access caused by circumstances outside eSpree’s reasonable control where eSpree has taken reasonable measures to safeguard its systems; or
v) circumstances of force majeure or other events reasonably beyond eSpree’s control.
eSpree does not exclude or limit liability for its gross negligence, wilful misconduct or any other liability that may not lawfully be excluded or limited.
Nothing in this clause excludes, restricts or limits any statutory right or remedy available to a consumer under the CPA, ECTA or other applicable South African law.
14.2 To the fullest extent permitted by applicable law, no warranty or representation will be implied into the eSpree Service beyond those expressly contained in these Terms and Conditions. This provision does not exclude, restrict or limit any statutory warranty, guarantee, right or remedy that applies under the CPA, ECTA or other applicable South African law and which may not lawfully be excluded, restricted or limited.
Release and Indemnity
15. To the fullest extent permitted by applicable law, a User indemnifies eSpree against reasonable losses, liabilities, claims and expenses arising directly from:
i) the User’s unlawful use of the Site or Services;
ii) the User’s material breach of these Terms and Conditions;
iii) the User’s infringement of another person’s intellectual property or other legal rights;
iv) fraudulent, unlawful or intentionally misleading information supplied by the User; or
v) in the case of a Seller, the Seller’s unlawful listing, sale or supply of a Product.
This indemnity does not apply to the extent that a claim or loss results from eSpree’s own unlawful conduct, gross negligence or willful misconduct.
Nothing in this clause requires a consumer to indemnify eSpree against liability that may not lawfully be excluded or transferred under the CPA or other applicable law.
Disputes
16.1 eSpree encourages Users to attempt to resolve disputes through the procedure set out in this clause before commencing formal proceedings, where reasonably appropriate. Nothing in this clause prevents a consumer from approaching the National Consumer Commission, a consumer court, an applicable ombud or alternative dispute-resolution body, or any court or other authority where the consumer is entitled to do so under applicable law. Nothing prevents either party from seeking urgent relief where appropriate.
16.2 The procedure for resolving a dispute is as follows:
i) first, either you or eSpree may give notice to the other about the nature of the dispute (” Notice “) and you and eSpree will seek to negotiate a settlement within 14 working days of receipt of the Notice
ii) second, to the extent those negotiations fail, you and eSpree will seek, within a further 5 days, to reach agreement on the appointment of a mediator for resolving the dispute
iii) failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator(s) appointed by the Foundation
16.3 Where eSpree is entitled by law or by order of a competent court or tribunal to recover legal or collection costs from a User, such costs may be recovered to the extent permitted by applicable law or the applicable order. Nothing in this clause entitles eSpree to recover an amount that may not lawfully be imposed upon a consumer.
16.4 User disputes:
i) eSpree encourages users to report user-to-user disputes to local law enforcement, or a certified mediation or arbitration entity, as applicable
ii) eSpree, for the benefit of users, may try to help users resolve disputes
iii) eSpree does so in eSpree’s sole discretion, and eSpree has no obligation to resolve disputes between users or between users and outside parties
iv) To the extent that eSpree attempts to resolve a dispute, eSpree will do so in good faith based solely on eSpree’s policies
v) eSpree will not make judgments regarding legal issues or claims
Monthly Free Shopping Draw
17.1 Qualifying Products purchased through eSpree during an applicable Competition Period may automatically generate entries into the eSpree Monthly Free Shopping Draw at no additional charge.
17.2 No portion of the Product purchase price constitutes a separate entry fee for participation in the Monthly Free Shopping Draw.
17.3 Participation is governed by the separate Monthly Free Shopping Draw Competition Rules, which contain the applicable eligibility requirements, Competition Period, entry conditions, draw procedure, prize provisions and rules concerning cancelled or refunded transactions.
17.4 Participation in the Monthly Free Shopping Draw does not exclude, restrict, waive or replace any statutory consumer right available under applicable South African law.
Entire Agreement
18.1 This Agreement, together with any policies and additional terms expressly incorporated into it, constitutes the agreement between you and eSpree in relation to the matters governed by those documents.
18.2 These Terms and Conditions must be read together with any policies or additional terms expressly incorporated into them, including eSpree’s Privacy Policy, Returns and Refunds Policy and, where applicable, the Monthly Free Shopping Draw Competition Rules. Where specific terms govern a particular service, promotion or transaction, those specific terms will apply to that matter to the extent of any inconsistency with these general Terms. No provision of any eSpree policy or agreement will override a statutory consumer right or remedy that may not lawfully be excluded or limited.
Remedies Cumulative
19. All rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
Relationship of Parties
20. Nothing in this Agreement shall be deemed to constitute any party as the agent, partner or joint venture of another party.
Further Assurances
21. A party shall take all such steps, execute all such documents and do all such acts and things as may be reasonably required by another party to give effect to any of the transactions contemplated by this Agreement.
Non-Waiver
22. Other than as otherwise specified in this Agreement, neither the failure of a party to enforce at any time any of the provisions of this Agreement nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.
Governing Law
23.1 This Agreement will be governed by the laws in force in the Republic of South Africa and each party unconditionally submits to the jurisdiction of the court of the Republic of South Africa in relation to any legal action, suit or proceedings arising out of or with respect to this Agreement.
23.2 With reference to clause 23.1, the parties submit to the jurisdiction of the High Court of South Africa, Cape High Court and the parties submit to the jurisdiction of the Magistrate’s Court or the Regional Court irrespective of whether the amount claimed by us exceeds the applicable monetary limit allowed to institute a claim in the Magistrate’s Court or Regional Court.
Notices
24. You choose your domicilium citandi et executandi (“domicilium”) for the purposes of giving any notice serving any legal process and for any other purpose arising from this Agreement at your addresses, e-mail and fax numbers as set out in your application for registration on this site. Any notice to be served by either party to the other must be in writing and will be sent by hand delivery, post or facsimile, or email to the relevant party to this agreement at its respective address as specified on the application for registration on this Site and, in the case of eSpree, at the aforementioned address and in the case of mail will be deemed to have been served three (3) business days after posting. In the case of a facsimile it will be deemed to have been served on receipt of a successful transmission notice and in the case of email it will be deemed to have been served if no return email stating that the email cannot be delivered is received. If a notice is served by hand and proof thereof is made available, the notice will then be deemed to be delivered on the actual date and time of delivery.