RESCUEBITE STORE PARTNER TERMS AND CONDITIONS

(“STORE PARTNER TERMS”)

 

THESE STORE PARTNER TERMS ARE EFFECTIVE AS OF: 01 JANUARY 2021

“EFFECTIVE DATE”.

READ THESE STORE PARTNER TERMS CAREFULLY BEFORE ENLISTING AS A STORE PARTNER. YOUR CONTINUED USE OF THE STORE PARTNER TERMS INDICATE THAT YOU HAVE BOTH READ AND ACCEPT THESE STORE PARTNER TERMS. YOU CANNOT PARTICIPATE AS A STORE PARTNER IF YOU DO NOT ACCEPT THESE STORE PARTNER TERMS. ALL SECTIONS OF THE STORE PARTNER TERMS ARE APPLICABLE TO ALL STORE PARTNERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.

 

1.         Introduction

1.1.           The Software Application is made available and owned by Lucid Billing (Pty) Ltd t/a rescueBite (bearing registration number 2020/000141/07) (hereinafter referred to as "rescueBite", the “Software Application”, "we", “our", "us" or “its”). Any reference to "rescueBite", "we", "our", "us" or “its” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub- contractors, service providers and suppliers.

1.2.           The Store Partner Terms, including any document incorporated by reference herein, such as the Privacy Policy (collectively, the "Terms"), apply to the Store Partner making use of the Store Partner Services.

1.3.           Enlisting for the Store Partner Services and/or use of the Software Application after the Effective Date will signify that you have read, understand, accept, and agree to be bound, and are bound, by the Terms, in your individual capacity and/or on behalf of the entity that you represent. Further, you represent and warrant that you are a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).

1.4.           To the extent permitted by applicable law, we may modify the Terms.  In the modification of the Terms we will require acceptance by the Store Partner prior to the Store Partner’s continued use of the Software Application, which consent shall be construed as a Store Partner’s consent to the modified, amended or updated Terms.  A Store Partner’s only remedy, should they not agree to the modifications, is to refuse acceptance of the amended or updated Terms, thereby preventing your use of the Software Application.

1.5.           We do not accept any Store Partners, or representatives of Store Partners, under the age of majority or who otherwise do not have the relevant capacity to be bound by the Store Partner Terms, unless such Store Partner has, through their parent or guardian, consented to the contents hereof. 

2.         Terminology

2.1.           The following terminology applies to these Store Partner Terms:

2.1.1.       Commission” shall mean a percentage of the price of the Products sold by the Store Partner through the Software Application as set out more fully in clause 13.3, which shall be payable by the Store Partner to us;

2.1.2.       Content” shall mean photos, media, menus, Product information and the like uploaded by a Store Partner on the Software Application;

2.1.3.       Customer” shall mean a person or entity who through the use of the Software Application purchases Products from a Store Partner;

2.1.4.       Delivery Person” shall mean a third party appointed by us to deliver Products to a Customer;

2.1.5.       License” shall mean the non-transferable, non-exclusive, limited, and revocable license to access the Software Application as granted by us to the Store Partner as more fully set out in clause 3 below, which Software Application for the avoidance of doubt, shall be construed as our intellectual property;

2.1.6.       Party” or “Parties” shall mean us or the Store Partner, alternatively us and the Store Partner as the context implies;

2.1.7.       Penalty Fees” shall mean those penalty fees for which a Store Partner may be liable, as set out in clause 16.2 and 18.2 below;

2.1.8.       Products” shall mean the goods made available for sale through the Software Applicable by a Store Partner as set out more fully in clause 10 below;

2.1.9.       Software Application” shall mean the Android & iOS mobile  application, with the android Software Application being available for download on the Google Play Store, and the iOS Software Application being available on the Apple App Store, as downloaded by the Store Partner, through which the Store Partner Services are rendered;

2.1.10.    Store Partner” shall mean the company or individual who registers through the Software Application to make use of the Store Partner Services associated therewith;

2.1.11.    Store Partner Services” shall mean the services provided by us to a Store Partner through the Software Application as set out in clause 9 below;

2.1.12.    Storage Facility” shall mean fulfillment centres under our control at which certain Products may be stored on behalf of a Store Partner;

2.1.13.    Storage Fee” shall mean the fee payable in respect of any storage at the Storage Facility, comprising a percentage of the price of the Products sold by the Store Partner as set out more fully in clause 13.4 below;

2.1.14.    Tablet” shall mean a compatible tablet with the Software Application pre-installed, a stand (both marked with our signage) and stickers made available to a Store Partner at the cost (which includes delivery) and on the conditions set out in clause 7 below; and

2.1.15.    Terms” means these Store Partner Terms and the Privacy Policy collectively.

2.2.           Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.

3.         Your agreement to these Store Partner Terms

3.1.           Subject to, and on the basis of a potential Store Partner’s acceptance of these Store Partner Terms, we grant to you a limited, revocable, non-transferable License to access and use the Software Application in accordance with the various policies and agreements which may govern such use and access.

4.         Commencement and Duration

4.1.           Save for what is stated in clause 26 below, the Terms shall apply to a Store Partner from the date that same are accepted until such time as they choose to temporarily or permanently deactivate the Store Partner Services or they are otherwise termination in accordance herewith.

4.2.           A Store Partner may only deactivate the Store Partner Services be it temporarily or permanently if there are no amounts owing by it to us.

4.3.           Further, in the event of the Store Partner Services being:

4.3.1.       temporarily deactivated:

4.3.1.1.         all information provided by the Store Partner to us shall be housed on our servers at a fee to be determined based on the storage capacity required until such time as the Store Partner Services are reactivated. 

4.3.2.       permanently deactivated:

4.3.2.1.         the Store Partner may delete the Software Application from its device, with all information provided by the Store Partner to us being transferred to the Store Partner via email within 31 (thirty one) days of the deactivation of the Store Partner Services.

5.         Vetting Process

5.1.           Only a Store Partner may make use of the Store Partner Services. 

5.2.           In order for us to consider you as a Store Partner, you will be required to submit the following documentation:

5.2.1.       company/CC registration documents in the event of a potential Store Partner being an entity; or 

5.2.2.       an identity document in the event of a potential Store Partner being a natural person; and

5.2.3.       Certificate of Acceptability (only in the event that the Store Partner has one and if required by us).

5.3.           We reserve the right to refuse a potential Store Partner’s registration on the Software Application in our absolute discretion.

5.4.           Once accepted as a Store Partner, the Store Partner undertakes to keep us updated of all changes in information submitted, and ensure that such information is true and correct at all times.

6.         Registration of a Store Partner

6.1.           Once a potential Store Partner passes the vetting process, then the Store Partner shall be entitled, but not obliged to register on the Software Application as a Store Partner by following various prompts found on the Software Application. 

6.2.           During the above process, a Store Partner shall also be required to upload Content to the Software Application.

7.         Access to the Store Partner Services

7.1.           In the event that a Store Partner does not have a device through which to access the Store Partner Services, it may purchase a Tablet from us at a once off cost of R3 500.00 (three thousand five hundred Rand) or such cost to be determined at our sole discretion at the time. 

7.2.            The Tablet shall become the Store Partner’s property and all repair costs, insurance costs, data and other ancillary charges shall be for the Store Partner’s account.

8.         Purpose of the Store Partner Services

8.1.           Our aim in providing Store Partner Services is to: 

8.1.1.       create a market that promotes anti-food waste; and 

8.1.2.       enables businesses within the retail and wholesale industry primarily relating to food items to make same available in order to diminish food wastage, combat hunger and assist in the preservation of the climate.

9.         Store Partner Services

9.1.           Current Store Partner Services include:

9.1.1.       through the Software Services, the ability for a Store Partner to sell to Customers their Products; 

9.1.2.       allowing us to facilitate, manage and pay to the Store Partner such amounts as may be due to the Store Partner in respect of purchases made by a Customer of Products;

9.1.3.       allowing us to appoint a Delivery Person, for collection and delivery of Products to Customers, and to make payment to the Delivery Person on behalf of the Store Partner;

9.1.4.       enabling the Store Partner access to insight and analytical patterns in respect of their Products through the Software Application;

9.1.5.       us running promotions, advertising campaigns and loyalty programs at our sole discretion.

9.1.6.    (if and when available) in the event that the Store Partner’s Products comprising of shelf items or fresh produce, with their location falling outside of a Customer target area, a Storage Facility at which the Products may be stored in order to expedite the delivery of Products to a Customer; and

9.1.7.    (if and when available) allowing for the integration with the Store Partner’s Point of Sale (POS) system or Inventory Management System (IMS) via the Software Application’s API so as to track all Products together with Product shelf life.

10.      Products

10.1.        The Products that a Store Partner shall be entitled to sell through the Software Application shall fall into one or more of the below categories:

10.1.1. Hospitality industry: pre-prepared meals as may be provided by a restaurant, caterer, hotel, bed and breakfast, ghost kitchen; and/or 

10.1.2. Shelf items: being those that one may expect to find at a wholesaler, manufacturer or distributor to supermarkets, superettes, cafés, grocery stores or the like and/or

10.1.3. Fresh produce: that one may expect to have supplied through a fresh produce supplier or farmer.

10.2.        In order to be able to sell any of the above Products through the Software Application, a Store Partner must have already been registered and obtained the necessary licenses together with approval to both sell and deliver surplus and non-surplus Products.

11.      Product Markup

11.1.        No markups shall be added to the cost of the Products as listed by a Store Partner, but rather the Products are to be reduced by at least 50% (fifty percent) of the price recorded on their menu or comparable supply list in respect of Products covered by the hospitality industry.  The only circumstance in which a Store Partner may charge an identical price to that normally charged by it shall be if they are offering a “buy one get one free” special.

11.2.        A Store Partner shall not be entitled to add any Commission on to the cost of the Products thereby passing its expenses on to a Customer.

12.      Product Limitation

12.1.        The following Products may not be sold through the Software Application: 

12.1.1.    Hospitality industry: leftovers from a diner’s plate, spoiled food, food that has passed its expiry date, and kitchen scraps. 

12.1.2.    Shelf items: spoiled food, food that has passed its expiry date, and food that is not safe for human consumption.

12.1.3.    Fresh produce: spoiled food, food that has passed its expiry date, and food that is not safe for human consumption.

12.2.        In addition, a Store Partner may not sell the following Products:

12.2.1.    live animals (including insects, reptiles, birds and sea life);

12.2.2.    fragile items;

12.2.3.    any materials prohibited by national, provincial or local law;

12.2.4.    flammable items; and

12.2.5.    items which may impede delivery due to size, weight or the suitability for delivery.

12.3.        In the event of us not approving any Product for sale by a Store Partner, we reserve the right to request the Store Partner to remove such Product, and if necessary suspend the Store Partner’s access to the Store Partner Services, or deactivate same at our sole discretion.

12.4.        The Store Partner further shall not:

12.4.1.    engage in any form of unethical behavior; and

12.4.2.    act in any manner which may be construed as not being compliant with the Terms.

12.5.        Any failure by the Store Partner to act in accordance with the terms contained in this clause 12 may be construed as a breach of the Store Partner Terms, leading to the suspension or termination thereof, at our discretion.

13.      Payment for Store Partner Services

13.1.        The Store Partner Services are provided to the Store Partner in consideration for which a Commission shall be paid as per clause 13.3 below.

13.2.        All payments made by a Customer in respect of Products purchased from the Store Partner through the Software Application shall be facilitated through us.

13.3.        Unless otherwise agreed, we shall be entitled to a 15% (fifteen per cent) Commission on the value of all Product sales generated through the Software Application. 

13.4.        Apart from the Commission referred to in clause 13.3 above, and should a Store Partner avail itself of the use of the Storage Facility offered in clause 9.1.6 above (once available), an additional 10% (ten percent) Storage Fee may be charged against the amount paid by a Customer in respect of Products held at the Storage Facility.

14.      Payment to a Store Partner

14.1.        We shall make payment to the Store Partner of all amounts due to it less the Commission, any Penalty Fees, Storage Costs and refunds each Monday (unless the Monday is a public or religious holiday, in which case the next business day) in respect of the accumulated sales for such Store Partner calculated from Tuesday to Sunday, by way of EFT, and into the bank account nominated by the Store Partner when registering for the Store Partner Services.  The onus of ensuring that bank account details are current and correct shall rest with the Store Partner and we shall not be liable for, or attempt to reverse any transactions made into an incorrect bank account.

14.2.        Immediate clearance shall not be applied to any payments made, and the Store Partner understands that its access to funds paid to it by us shall be subject to the funds clearance procedure in place in respect of both our and their banking institution. 

14.3.        In the event that a Store Partner requires us to make payment to it each day (exclusive of public holidays, religious holidays and weekends), then a 3% (three percent) transaction charge shall be levied against all payments.

14.4.        In holding funds on behalf of, and paying the Store Partner, we are not assuming the role of a bank, a registered financial institution, or portraying that we are in the business of providing money or financial services.  We merely hold these funds in our capacity as an agent for the Store Partner.

15.      Obligations of the Store Partner

15.1.        Each Store Partner shall bear the responsibility of ensuring that all undertakings made by it to a Customer are met timeously and in full.  This shall include but not be limited to the correctness of the Product and the condition of the Product.  Any arrangements relating to the swap out of a Product or refund in respect of a Product shall be negotiated between the Store Partner and the Customer, with us only being obliged to attend to the refund if the Store Partner has not already received payment thereof by us in the manner set out in clause 14 above.

15.2.        Although we shall at no time be seen to be a party to any contract between Customer and Store Partner, in the event of a Store Partner not delivering the correct Product, a complete Product or an unspoiled Product, we may, if requested by the Store Partner (and at our own discretion), attempt to mediate or appoint a mediator to resolve any issues or queries that may arise between a Store Partner and Customer, Store Partner and Delivery Person, or any combination of the three at our discretion.

15.3.        We shall not however at any time, be held liable, or be seen to be a party to any contract between Customer and Store Partner, Store Partner and Delivery Person, or any combination of the three not honouring any of their undertakings timeously, correctly, in full or at all.

16.      Replacements, refunds, incorrect orders

16.1.        A Customer may be entitled to a replacement of the Product or a refund in respect of the Product under the following circumstances:

16.1.1.    spoiled Products (as applicable to the hospitality industry): in the event that upon receipt of the Product by a Customer, a complaint is lodged based on the food being spoiled, the Customer and the Store Partner shall agree as to whether that Product should be replaced by the same or a similar Product of the same value, at the sole cost of the Store Partner, or whether the Customer shall be reimbursed for same.

16.1.2.    spoiled Products (as applicable to shelf items or fresh produce): the Customer shall have 7 (seven) days from date of delivery of the Product to return same to the Store Partner and show to the Store Partner the order number received through the Software Application.  The Store Partner shall have the right to inspect the Products and make an election as to whether the Customer is entitled to a replacement Product or a refund.  When making this decision various factors shall be taken into account such as what the freshness or shelf life of the Products were or might have been on date of delivery as against the date that same were brought to the Store Partner by the Customer.

16.1.3.    Incorrect Product delivery: should it transpire that a Customer received an incorrect Product, and a complaint in respect of same is lodged, the Customer and the Store Partner shall in consultation with each other reach a decision as to whether the Customer is to be refunded, or whether the incorrect Product should be swapped out for the correct one.

16.1.4.    Incomplete Product delivery: if a Customer receives an incomplete Product and requires a replacement Product or a refund, an investigation shall first be launched with the Delivery Partner in order to identify whether the error was on the part of the Store Partner or the Delivery Partner.  In the event that the error falls to the Store Partner, then the Customer and the Store Partner shall in consultation with each other reach a decision as to whether the Customer is to be refunded, or whether the balance of the Product should be delivered to the Customer.

16.2.        In the event of any of the above, we shall be entitled to levy Penalty Fees against the Store Partner, which shall be made up as to:

16.2.1.    the bank costs incurred by us in attending to the refund (in the event of a refund being agreed to); alternatively 

16.2.2.    delivery fees in the event of a replacement Product being delivered to the Customer.

16.3.        These Penalty Fees shall be set off against the next Commission payment made to the Store Partner.  In the event that the Penalty Fees exceed the Commission, then the remaining balance due to us shall be set off against each following Commission payment until such time as the full Penalty Fees have been received.

17.      Cancellation by a Customer

17.1.        A Customer may only cancel the delivery of a Product through the Software Application:

17.1.1.    in the event of a delay of a minimum of 1 (one) hour, calculated from the estimated delivery time as reflected on the Software Application when the Product was purchased, and on the proviso that the Product has not yet been collected by the Delivery Person; or 

17.1.2.    at any time prior to the Store Partner confirming that the purchase of the Product has been accepted in which case the Customer shall be entitled to a full refund of the price paid by it in respect of the Product. 

18.      Store Partner Etiquette

18.1.        A Store Partner shall in all dealings with the:

18.1.1.    Delivery Person:

18.1.1.1.   treat him/her with respect; 

18.1.2.    Customer:

18.1.2.1.   keep him/her updated as to any delays that may be occasioned in the delivery of the Product, through the Software Application together with the reason for the delay; 

18.1.2.2.   advise him/her through the Software Application should it be necessary to cancel delivery of the Product, together with the reason for cancellation. 

18.2.        Should it come to our attention that a Store Partner habitually fails to treat the Delivery Person with respect and/or keep the Customer updated as set out above, we may levy an additional 10% (ten percent) Penalty Fee against the cost of the Product which made up the transaction.

19.      Customer feedback

19.1.        Once a Customer has received the Product (or not received the Product) as the case may be, the Customer shall be able to, through the Software Application post a comment relating to the service and/or Product received.  We do not monitor these comments on a continuous basis and cannot guarantee that same are accurate, relevant or non-offensive. 

19.2.        Further, all our rights are reserved to share such comments as we wish for advertising purposes, without credit being provided to the Store Partner to whom the comment was addressed.

20.      Limitation of liability and indemnity

20.1.        The Software Application shall be used entirely at the Store Partner’s own risk.

20.2.        The Store Partner hereby indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that we may suffer or incur as a result of or in connection with the Store Partner’s use of or conduct in connection with the Store Partner Services or the Software Application, including any breach by the Store Partner of the Terms or any applicable law or licensing requirements.

20.3.        To the maximum extent permitted by law, we exclude all implied representations and warranties which, but for the Store Partner Terms and the Terms, might apply in relation to the Store Partner’s use of the Software Application.

20.4.        To the extent that our liability cannot be excluded by law, its maximum liability, whether in contract, equity, statute or delict (including negligence), to the Store Partner will be limited to the minimum amount imposed by such law.

20.5.        Notwithstanding anything to the contrary in Store Partner Terms and the Terms, in no circumstances will we be liable for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising for any reason whatsoever, whether in delict, contract or otherwise.

20.6.        We shall not be liable for delays, interruptions, service failures or other problems that may be caused as a result of the use of the internet and electronic devices and communications outside of its reasonable control.   

20.7.        Without limiting the generality of the foregoing, we make no warranty that the Software Application will meet the Store Partner’s requirements, or that the Store Partner Services will be uninterrupted, timely, secure, error free or that defects in respect of the Store Partner Services will be corrected, nor that it will be virus free. 

20.8.        The Store Partner accepts that access to the Store Partner Services and where applicable, the payments to a Store Partner may be restricted on occasion due to necessary updates and maintenance being carried out on the Software Application. 

20.9.        Except for any express warranties in the Store Partner Terms, the Store Partner Services are provided on an “as is” basis and used at the Store Partner’s own risk.

20.10.      We make no other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement.

21.      Restrictions

21.1.        A Store Partner may not:

21.1.1.    publish or mirror any of this Software Application’s material in any media whatsoever; 

21.1.2.    use the Software Application for any objectionable or unlawful purpose, including the posting of any threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or spam material;

21.1.3.    take any action that imposes an unreasonable or disproportionately large load on the Software Application infrastructure, including spam or other unsolicited mass e-mailing or messaging techniques; 

21.1.4.    use the Software Application in any manner would result in another Store Partner breaching any applicable legislation or licensing obligations (including with respect to privacy) or any obligations a Store Partner may owe to third parties; 

21.1.5.    mislead or deceive others through any act or omission or make a false representation about a Store Partner’s identity, including the impersonation of a real or fictitious person or using an alternative identity or pseudonym;

21.1.6.    conduct any activity which compromises or breaches another party's patent rights, trademark, copyright or other intellectual property rights;

21.1.7.    copy, collect or save information about other Store Partners or third party that uses the Software Application; 

21.1.8.    introduce any virus, worm, trojan horse, malicious code or other program which may damage computers or other computer-based equipment to the Software Application or to other Store Partners or third party using the Software Application; 

21.1.9.    stalk or harass anyone; 

21.1.10.  attempt to disrupt or interfere with the Store Partner Services as delivered through the Software Application;

21.1.11.  use the details of other Store Partners for anything other than the use expressly permitted by those Store Partners; 

21.1.12.  download, access, use, harvest or download in bulk Store Partner details; 

21.1.13.  remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Software Application;

21.1.14.  use this Software Application contrary to applicable laws and regulations, or in any way may cause harm to the Software Application or to any person or business entity;

21.1.15.  use this Software Application to engage in any advertising or marketing other than in a manner expressly permitted in respect of the Store Partner Services;

21.1.16.  crawl, spider or scrape the content of the Software Application, except to the extent required by recognised search engines (e.g. Google) for the purposes of indexing this Software Application; or

21.1.17.  provide unauthorised interfaces to the Software Application.

21.2.        The Store Partner understands and agrees that it is solely responsible for compliance with any and all laws, rules, regulations and taxation obligations that may apply to its use of the Store Partner Services. 

21.3.        Certain areas of the Software Application are restricted from being accessed by a Store Partner, and we may further restrict access by a Store Partner to any areas of this Software Application at any time, in our absolute discretion.

22.      Confidentiality

22.1.        Confidential information means any documents or information created, received or obtained from us, together with information relating to us as well as non-public information pertaining to our business (including, without limitation pricing information, any related entities, the identity of Store Partners, and any content marked confidential or reasonably construed as being confidential due to its nature) (“Confidential Information”) which must remain strictly confidential.

22.2.        A Store Partner may not disclose, solicit, make available or misappropriate any Confidential Information, trade secrets or other proprietary information that belongs to any third party without that party’s prior written permission, or in violation of any express or implied duty or contractual right.

22.3.        Where a Store Partner is legally required to disclose the Confidential Information, it shall inform the third party who disclosed the Confidential Information of the requirement as soon as reasonably practicable and liaise with that party prior to disclosing any of that party’s Confidential Information.

22.4.        The Store Partner shall notify us immediately upon becoming aware of a suspected or actual breach of this obligation.

22.5.        We will not disclose or make available to any third party, directly or indirectly, any Store Partner’s Confidential Information, except where we have the Store Partner’s permission, where the Confidential Information is already in the public domain (through no breach of the Terms), in furtherance of the Store Partner’s use of the Store Partner Services, to enforce all or any of the Terms or if legally compelled to do so.

23.      Copyrights

23.1.        The contents of the Software Application belong to us. Furthermore, the compilation (meaning the collection, arrangement, and assembly) of all content on the Software Application is ours unless credit is attributed to the author thereof, and is, likewise, protected by South African and international copyright laws.

23.2.        Except as stated herein, none of the contents of the Software Application may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission or the copyright owner, and further, should such consent be provided, we reserve our rights to withdraw such consent at any stage, in our sole and absolute discretion.

23.3.        The Store Partner is expressly prohibited to include any hyperlink to any other website or application in any information uploaded to the Software Application by it.

23.4.        We do not permit copyright infringing activities or infringement of intellectual property rights on the Software Application, and may at our sole discretion, remove any infringing content should same infringe on another's intellectual property rights or its own.

23.5.        All trademarks and copyrights, together with any other intellectual property rights, in and to any of the content of the Software Application, where not evidently that of the Store Partner or a third party, are our exclusive property.

24.      Content

24.1.        The Store Partner warrants that:

24.1.1.    all rights in and to any Content uploaded by it (including, without limitation, all rights to the reproduction and display of such Content) are obtained by the Store Partner or, alternatively, all necessary rights in and to such Content providing the rights in and to such Content have been obtained;

24.1.2.    all necessary license fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of the Content have been paid prior to it being uploaded to the Software Application;

24.1.3.    Content does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;

24.1.4.    it is entitled, in the event of the Content being the property of a third party, to receive any payment generated from sales as a result of the uploading of the Content;

24.1.5.    the Content does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than a Store Partner’s own);

24.1.6.    the Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;

24.1.7.    the Content does not contain any information that may be considered confidential, proprietary, or personal insofar as it relates to a third party;

24.1.8.    the Content shall at all times be in adherence to the Food and Safety Standards currently in place, and clearly set out the nutritional value and calorie count in respect of Products together with allergen information as well as alcohol content (should the Product contain alcohol); and

24.1.9.    ensure that the Content is kept up to date and accurate, with Products being available for purchase as and when required. 

24.2.        By submitting the Content, the Store Partner grants us an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty free license (sub-licensable through multiple tiers) to publish feedback, comments and ratings in respect of the Products sold through the Software Application and use such feedback in blogs, features, social media posts, highlights as well as for advertising and promotional purposes.

24.3.        We shall not be held liable or responsible for any loss, theft, damage or misuse of the Store Partner’s copyright material in respect of the Content.

25.      Non-exclusivity of Store Partner Services

25.1.        It is recorded that we shall provide the Store Partner Services to more than one Store Partner, and as such, no single Store Partner shall have any right or entitlement to any exclusivity to the Store Partner Services or the Products sold by it.

25.2.        We have no control of the prices of the Products, and cannot guarantee that one Store Partner will not advertise the same Product at a higher or lower price as that of another.

26.      Breach

26.1.        If either Party commits a breach of these Store Partner Terms and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel the Store Partner Terms and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.

27.      Mediation and Arbitration

27.1.        Any dispute which arises between the us and a Store Partner in respect of the Store Partner Terms shall require the Parties to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.

27.2.        If the dispute cannot be resolved in accordance with the foregoing, the dispute shall be finally resolved in accordance with the rules of Arbitration Foundation of South Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA.

27.3.        Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

27.4.        The arbitration referred to in clause 27.2 shall be held –

27.4.1.    at Gauteng or other venue agreed by the parties in writing;

27.4.2.    in English; and

27.4.3.    immediately and with a view to its being completed within 21 (twenty‑one) days after it is demanded. 

27.5.        The Parties irrevocably agree that the decision in arbitration proceedings:

27.5.1.    shall be final and binding upon them; 

27.5.2.    shall be carried into effect; 

27.5.3.    may be made an order of any court of competent jurisdiction.

28.      Informal dispute resolution process between Store Partners

28.1.        A Store Partner acknowledges that by making use of the Store Partner Services it agrees to engage in an informal dispute resolution process as contained in this clause 28 insofar as a dispute may arise between it and a Customer, in accordance with the terms set forth herein, and in an attempt to resolve any dispute as cost effectively and as speedily as possible.

28.2.        The Store Partner wishing to raise a dispute (“the Complainant”) must communicate this dispute to us through direct email communication in the form of a written complaint (“the Dispute Notice”). The Dispute Notice shall provide a brief description of the nature of the complaint and should include all information necessary to enable us to investigate the complaint.

28.3.        The other party to the shall then be invited to respond to the Dispute Notice with a brief description of his/her/its version of the complaint. We will then assess the merits of the complaint and informally resolve the complaint within 60 (sixty) days from the date of delivery of such Dispute Notice to us.

28.4.        Our decision regarding the resolution of the complaint will be final and binding on both Parties and both Parties agree to abide by same 

29.      Notices and domicilium

29.1.        We, and the Store Partner choose as our respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of the Store Partner Terms, the following: 

Lucid Billing (Pty) Ltd t/a rescueBite

Forest Hill City

6922 Forest Beech Street

Centurion

0157

support@rescuebite.com.

Store Partner: The address as provided when registering on the Software Application. 

29.2.        Both we and the Store Partner may change our domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (seven) days after receipt of notice of change of domicilium.

29.3.        All notices to be given in terms of the Store Partner Terms will:

29.3.1.    be given in writing;

29.3.2.    be delivered or sent by email; and 

29.3.3.    be presumed to have been received on the date of delivery. 

29.4.        Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.

30.      Variation

30.1.        No contract varying, adding to, deleting from or cancelling the Store Partner Terms, and no waiver of any right under these Store Partner Terms, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.

31.      Survival

31.1.        Clauses which out of necessity or by implication herein survive termination of these Store Partner Terms, shall remain in full and effect despite the termination hereof.

32.      Application of the Electronic Communications and Transactions Act 25 of 2002 ("ECT ACT")

32.1.        Data Messages (as defined in the ECT Act) will be deemed to have been received by us if and when we respond to the Data Messages. 

32.2.        Data Messages sent by us to a Store Partner will be deemed to have been received by the Store Partner, as the case may be, in terms of the provisions specified in section 23(b) of the ECT Act.

32.3.        Store Partners acknowledge that electronic signatures, encryption and/or authentication are not required for valid electronic communications between us and them.

33.      General

33.1.        The Store Partner Terms, in conjunction with the Terms constitute the entire between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein, are binding on the Parties.

33.2.        Our failure to enforce any provision of the Store Partner Terms or the Terms shall not constitute a waiver of such provision.  Further, any consent to depart from the Store Partner Terms or the Terms shall be ineffective unless it is confirmed in writing and signed by us.

33.3.        Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with Store Partner Terms or the Terms is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.

33.4.        The rights, powers and remedies provided to us in the Store Partner Terms and the Terms are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of the Store Partner Terms or the Terms.

33.5.        The Store Partner Terms together with the Terms constitute the entire agreement in as far as the provision of the Store Partner Services are concerned. The Store Partner acknowledges and agrees that it has not relied on any representations by us except those contained in the Store Partner Terms or the Terms.

33.6.        The laws of the Republic of South Africa shall apply to these Store Partner Terms and the Terms.

33.7.        Any claims, legal proceeding or litigation arising in connection with the Store Partner Terms and the Terms shall be subject solely to the jurisdiction of the courts of the Republic of South Africa.

33.8.        We may assign or novate any of our rights or obligations under these Store Partner Terms or the Terms without a Store Partner’s consent. A Store Partner may not assign or novate any of his/her/its rights.

33.9.        If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect.

34.      Preparation

34.1.        These Store Partner Terms have been custom created for Lucid Billing (Pty) Ltd t/a rescueBite by the good folks at Legal Legends www.legallegends.co.za.