These Terms govern Your use of The Marketplace and The Marketplace Services. The purpose of The Marketplace and The Marketplace Services is to act as a conduit between You and the Distributor and to facilitate efficient and competent business for all parties concerned.
NOW THEREFORE YOU HEREBY:
Acknowledge and agree that any Products purchased by You from a Distributor, through utilizing The Marketplace Services, is manufactured by OEM’s and these transactions are managed within The Marketplace. This document constitutes a legal agreement between You and TMP for any engagement and/or interaction between You and The Marketplace and/or Your use of The Marketplace Services. You acknowledge that You have read, understood, and agree to be bound by the following terms and conditions, and any additional policies and future modifications (collectively, the “Terms”). If at any time You do not agree to these Terms, please immediately terminate Your use of The Marketplace and/or The Marketplace Services.
Capacity: You hereby represent that You are at least 18 years of age and have not been previously suspended or removed from The Marketplace.
Engagement: If You are engaging with The Marketplace and/or making use of the Marketplace Services on behalf of a company, entity, or organization (collectively, a “Subscribing Organization”) then You represent and warrant that You are an authorized representative of that Subscribing Organization with the authority to bind such Subscribing Organization to these Terms, and that You agree to these Terms on behalf of such Subscribing Organization.
Use of The Marketplace Services: Subject to Your ongoing compliance with these Terms, TMP hereby authorizes You to use The Marketplace Services through The Marketplace, in the regular course of Your business in order to resell Products to Customers, and not for distribution, leasing, rental, loaning, sublicensing or otherwise transferring of licenses, where applicable, by You. Such use cannot be transferred to an unauthorised third party. Resale of the Products by You is at all times subject to OEM and/or Distributor terms, conditions and/or specifications.
Reseller Support: Support will be provided to a query raised by You when you email The Marketplace support team on the email address provided on The Marketplace.
Ownership and Proprietary Rights: Your engagement with The Marketplace does not confer to You and/or any third party any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any Intellectual Property Rights vesting in TMP and/or the Distributor and/or the OEM. TMP expressly reserves all of its Intellectual Property Rights, and no licences are granted by implication, estoppel or otherwise to You and/or any third party except as expressly set forth in this Agreement.
Fees: You are legally bound and obliged to pay TMP a Fee for use of all The Marketplace Services. In addition You will be liable to the Distributor for the purchase price in relation to any Products purchased by You. The Fees applicable for The Marketplace Services are subject to change at any time. All Fees are subscription based either through an annual or monthly model, as advised by TMP to You and subject to the Terms contained herein.
Transaction Processing: Transactions in respect of Your purchases of Products, are processed directly and the applicable purchase price is collected directly by the Distributor. Collection of Fees will occur through the applicable payment methodology between You and TMP. Recurring payments for periodic subscriptions are processed on the first day of each calendar month in respect of that month. All subscriptions auto renew either on a monthly or annual basis depending on the subscription model agreed to between You and TMP, subject at all times to the Terms contained herein.
Taxes: You acknowledge and agree that the You are responsible for payment of all applicable sales, use, consumption, VAT, GST and other taxes and all applicable export and import fees, customs duties and similar charges arising from the payment of Fees under these Terms. You will make all payments to the Distributor without reduction for any withholding taxes, which taxes shall be Your sole responsibility.
Privacy: You acknowledge and agree to the use and processing of any personal identifiable information you may provide TMP within the scope of the data practices described in the Privacy and Security Policy available on The Marketplace.
Confidential Information: Subject to the privacy clause above, the Receiving Party agrees that it will not, during or after the course of their relationship and/or the term of this Agreement, disclose the Confidential Information to any third party for any reason or purpose whatsoever without the prior written consent of the Disclosing Party.
Notwithstanding anything to the contrary contained in this Agreement, You and TMP agree that the Confidential Information may be disclosed by the Receiving Party to its professional advisors on a need-to-know basis; provided that the Receiving Party takes whatever steps are necessary to procure that such professional advisors agree to abide by the terms of this Agreement to prevent the unauthorized disclosure of the Confidential Information to third parties. For purposes of this clause, the Receiving Party’s professional advisers and employees, directors or managers shall be deemed to be acting, in the event of a breach, as that Party’s duly authorised agents.
The Receiving Party undertakes not to use the Confidential Information for any purpose other than to provide the Marketplace Services. The Receiving Party furthermore agrees that the unauthorized disclosure of the Confidential Information to a third party may cause irreparable loss, harm and damage to the Disclosing Party. Accordingly, the Receiving Party indemnifies and holds the Disclosing Party harmless against any loss, claim, harm or damage, of whatever nature, suffered or sustained by the Disclosing Party pursuant to a breach by the Receiving Party of this provision of this Agreement.
The obligations of the Receiving Party pursuant to this Agreement shall not apply to any Confidential Information that: is known to, or in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party; is or becomes publicly known, otherwise than as a result of a breach of this Agreement by the Receiving Party; is developed independently of the Disclosing Party by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement; is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall advise the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard and provided further that the Receiving Party will disclose only that portion of the information which it is legally required to disclose and the Receiving Party will use its reasonable endeavors to protect the confidentiality of such information to the greatest extent possible in the circumstances; is disclosed to a third party pursuant to the prior written authorization of the Disclosing Party; is received from a third party in circumstances that do not result in a breach of the provisions of this Agreement.
Warranty Disclaimer: YOU EXPRESSLY AGREE THAT YOUR USE OF THE MARKETPLACE AND THE MARKETPLACE SERVICES IS AT YOUR SOLE RISK. THE MARKETPLACE AND ANY DATA, INFORMATION, THIRD PARTY SOFTWARE, USER SUBMISSIONS, MARKETPLACE SERVICES, PRODUCTS OR REFERENCE SITES, MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MARKETPLACE ARE PROVIDED BY TMP ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. YOU MAY, HOWEVER, HAVE ADDITIONAL WARRANTY RIGHTS DIRECTLY FROM THE APPLICABLE OEM. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO THE APPLICABLE LAWS OF THE REPUBLIC OF SOUTH AFRICA, TMP, AND ITS AFFILIATES, PARTNERS (INCLUDING SYNDICATION PARTNERS), AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. TMP, AND ITS AFFILIATES, PARTNERS (INCLUDING SYNDICATION PARTNERS), AND SUPPLIERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, FEATURES, FUNCTIONS, THE MARKETPLACE SERVICES OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE MARKETPLACE OR ANY REFERENCE MATERIALS WILL BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING, IF ENCOUNTERED, WILL BE CORRECTED. TMP, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS ABOUT THE OEM OR THE OEM’S PRODUCTS. ANY WARRANTY MADE REGARDING ANY OEM’S PRODUCTS IS MADE DIRECTLY BY SUCH OEM. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. THE EXCLUSIONS OF WARRANTIES CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE REPUBLIC OF SOUTH AFRICA.
Limitation of Liability. UNDER NO CIRCUMSTANCES, WILL TMP OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY SERVICE PROVIDERS, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR, INCLUDING BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE AND/OR ACCESS THE MARKETPLACE SERVICES AND/OR THE MARKETPLACE, THE MARKETPLACE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH TMP AND THE MARKETPLACE, EVEN IF TMP AND/OR AN TMP AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE TMP’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAWS OF THE REPUBLIC OF SOUTH AFRICA.
Basis of the Terms: YOU ACKNOWLEDGE AND AGREE THAT TMP HAS OFFERED YOU THE USE OF THE MARKETPLACE AND THE MARKETPLACE SERVICES, AND ENTERED INTO THESE TERMS RELYING UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TMP, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE TERMS AGREED TO BETWEEN YOU AND TMP. TMP WOULD NOT BE ABLE TO PROVIDE THE MARKETPLACE AND THE MARKETPLACE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND WARRANTY DISCLAIMERS.
Waiver and Variation: The failure of TMP to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver or amendment of any of the provisions of these Terms will be effective only if reduced to writing and signed by TMP.
Amendment of Terms: TMP reserves the right, at its discretion, to change, modify, add, amend, or remove portions of these Terms at any time by posting the amended Terms to The Marketplace. Your continued use of The Marketplace and The Marketplace Services after the changes become effective constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or Fees will automatically be effective upon the earlier of (a) Your use of The Marketplace and The Marketplace Services with actual notice of the new terms, or (b) thirty (30) days after they are initially posted on The Marketplace; provided however, that any dispute that arises under this Agreement shall be resolved according to the version of the Terms that were in place at the time the dispute arose.
Availability of Content: TMP may make changes to or discontinue any of The Marketplace Services made available through The Marketplace at any time. In the event that the Products required to be purchased by You is no longer accessible through The Marketplace, You must contact the applicable OEM and/or Distributor directly to ensure continuity of sale of Product/s. In the event that The Marketplace Services are being discontinued, You will only be liable for those Fees in direct relation to The Marketplace Services used by You and/or Your access to The Marketplace. TMP is in no way responsible for the accuracy of the Datafeeds and/or the content displayed on The Marketplace or made available through The Marketplace Services, arising from any circumstances whatsoever.
Account: When You set up a user account on The Marketplace, You will be issued a password. You are solely responsible for maintaining the confidentiality of Your accounts and passwords, and for restricting access to them, and You agree to accept responsibility for all activities that occur under Your accounts or passwords. Information You provide to TMP during registration and at all other times must be true, accurate, current, and complete. You also agree to keep this information accurate and up-to-date at all times. If You have reason to believe that Your account has been compromised, then You agree to immediately notify TMP.
- Dispute Resolution: A dispute in the widest sense in connection with these Terms or which relates in any way to any matter affecting the interests of TMP and You (“the Parties”), in regard to these Terms (“Dispute”), shall be deemed to have arisen when either Party notifies the other Party in writing to that effect.
- Should any Dispute (other than a Dispute in respect of which urgent or interim relief may be obtained from a court of competent jurisdiction) arise, the Parties shall first use reasonable endeavours to resolve such Dispute through good faith negotiations. This entails one of the Party’s inviting the other in writing to meet, either in person or by means of telephone or video conferencing facilities, and to attempt to resolve the Dispute within 10 Business Days from date of written invitation. In the event that such negotiations do not result in a mutually acceptable resolution within 10 Business Days of the commencement thereof, the Dispute shall be handled in accordance with the below.
- Any Dispute shall be referred to arbitration on notice by one Party to the other, and be finally resolved in accordance with the rules of the Arbitration Foundation of the Republic of South Africa. Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules.
- Any arbitration award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction.
- These provisions shall not prevent either Party from approaching any court or other judicial forum in any country having appropriate jurisdiction to obtain timely interim or other relief in cases of urgency.
- The provisions of this clause shall constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.
Term: The Terms contained in this agreement will come into effect and commence upon your engagement with The Marketplace and/or use of The Marketplace Services, and will continue in perpetuity until such engagement terminates in the sole discretion of TMP due to your breach of the Terms of this agreement. Your subscription to The Marketplace and/or The Marketplace Services shall automatically renew on a monthly or annual basis depending on the subscription model chosen by You. You shall be entitled to terminate Your monthly subscription at any time but shall be liable for Fees for the following month in which TMP receives your written notice of termination. You shall be entitled to terminate Your annual subscription at any time but shall be liable for the annual Fees for the applicable year in which TMP receives Your written notice of termination.
Governing Law: this agreement shall be governed by the laws of the Republic of South Africa. Any action instituted in respect to the terms hereof, shall be instituted in Johannesburg, Gauteng, South Africa.
Severability: In the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, and this agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this agreement, and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
Confidential Information: means all information, whether written (including information in an electronic format) oral and whether whole or part, including, without limitation, any technical, commercial or scientific information, Customer information, pricelists, know-how, trade secrets, processes, machinery, designs, drawings, technical specifications, and data in whatever form, disclosed or assessed by You or TMP during the course of its relationship with the other party.
Customer/s: means the individual and/or entity who purchases the Product/s for authorised use as per OEM specifications in the regular course of its business or for personal use and not for resale, distribution, leasing, rental, loaning, sales, sublicensing, distribution or otherwise transfer of the licenses.
Datafeed/s: means the electronic data provided by the Distributor that integrates into the Marketplace Catalogue. This allows for the Marketplace Catalogue to receive updated data streams from the Distributor automatically or on demand. The data is received in a defined file format that The Marketplace Catalogue understands and contains timely information including but not limited to Products, Products description and specifications, Product pricing and Products availability.
Disclosing Party: means the party (either You or TMP) which discloses Confidential Information to the Receiving Party.
Distributor: means an authorised supplier of Products to Resellers for sale in the Territory and provides the Datafeeds.
TMP: means EVAR Technology (Pty) Ltd, Registration number: 2012/040728/07.
Fees: means the fees payable by the Reseller to TMP in exchange for the Marketplace Services.
Marketplace Catalogue: means the catalogue of Products created from DataFeeds and made available to the Reseller for sale to its Customers.
Marketplace Services: means the aggregation of the Distributor’s Datafeeds into the Marketplace Catalogue and provides the Reseller with the following capabilities, which includes but is not limited to:
- Viewing the Marketplace Catalogue (Product pricing, Product availability, Product descriptions and specifications),
- Quoting tool (provide quotations by the Resellers to its Customers),
- Place orders for Products on the Distributor,
- Tracking the order (track fulfilment of the order by Distributor to the Resellers Customers),
- Customisation of Reseller quote template;
OEM: means the original equipment manufacturer that creates and/or develops and/or manufactures and/or owns and/or licences and/or lawfully operates the Products, which are made available for sale on the Marketplace Catalogue as Products. The OEM provides applicable warranties and/or guarantees in respect to such Products.
Products: means including but not limited to IT hardware, software, electronics, stationery and IT services made available by the Distributor for display on the Marketplace Catalogue.
Receiving Party: means the party (either You or TMP) which receives the Confidential Information from the Disclosing Party.
Reseller: means any individual/s or entity that subscribes for the Marketplace Services through The Marketplace. “You” and “Your” in these Terms refers to You as the Reseller as: (i) Your Subscribing Organization, (ii) You, an individual user, and (iii) any other Subscribing Organization personnel accessing and using the Marketplace Services on the Subscribing Organization’s behalf.
The Marketplace: means software that has been developed for the purposes of aggregating Products for the purpose of delivering Marketplace Services to Resellers.
Terms: shall mean this agreement and all terms and conditions contained herein as may be amended from time to time at the sole discretion of TMP.
Territory: means the Republic of South Africa and such other African territories where the Distributor is authorised to distribute the Products.