COMMERCIAL TERMS

Last updated: 21May 2018

1. Summary of these Commercial Terms

In these Commercial Terms, we set out the following important things:

1.1 the rights and responsibilities applying to you (as a user) and to us;

1.2 the Services that we provide;

1.3 privacy aspects;

1.4. legal recourse;

1.5 limitation of liabilities;

1.6 considerations regarding minors; and

1.7 our company information.

2. Interpretation

2.1 These are the “Commercial Terms” that regulate your use of our Services, and our relationship with you. They create a legally binding contract between us, as soon as they apply, as set out in clause 3.

2.2 Our “Services” are those that are available on www.1tick.co.za (“Website“). Our Services may also be available through future channels to which these Commercial Terms will also apply.

2.3 Whenever we use “quotation marks” we do so to define a word or phrase to keep this document as short and clear as possible.

3. When do these Commercial Terms apply?

  • These Commercial Terms will apply the instant you become a customer of ours, or a user of our Services. Examples of when that may be include:

3.1.1 the moment you agree to them by registering on the Website;

3.1.2 by clicking the tick box on the Website, accepting these Commercial Terms; or

3.1.3 by using any of our Services.

3.2 To make use of our Services you need to agree to these Commercial Terms. We reserve the right to refuse any request for our Services without notice or reason.

4. Other applicable terms

Remember, even if you don’t use any of the Services on our Website, you will be bound to our browser terms and privacy policy, both of which are clearly available on the Website. Therefore, these Commercial Terms apply separately. If there is a conflict between any of the browser terms, privacy policy and Commercial Terms, these Commercial Terms will take precedence.

5. Changes to these Commercial Terms

  • We can:

5.1.1 change or add to any of these Commercial Terms;

5.1.2 change, cancel the Services or offer new Services to you from time to time,

5.2 at our discretion, and we will notify you of any changes when you next access the Website. For continued use of the Services, you may be requested from time to time to accept new or amended versions of these Terms, which will appear as a pop-up, requesting your acceptance thereof.

5.3 We will give you 5 (five) days’ notice of a change. Should you disagree with the changes made, you can discontinue using our Services.

5.4 If you disagree with any changes, but you have already started to use our Services, then we can collectively agree, formally in writing,that the previous Commercial Terms will apply until our commercial relationship is terminated. Otherwise, the new, changed Commercial Terms will apply from the day they take effect.

6. Duration of these Commercial Terms

Simply, these Commercial Terms apply for as long as you use our Services.

7. Termination

7.1 At any time, and without cause, we may cancel or terminate your access to our Website and/or our Services in our sole discretion, without any liability.

7.2 Cancellation of your access to the Website and/or App may be a result of you disobeying the acceptable use policy as set out in clause 14.

7.3 You may request that your account / subscription with us be cancelled. However, you might not receive a refund of any amounts paid if you cancel your use of the Services. If you cancel your use of the Services you will still be liable to pay our fees and these Commercial Terms will continue to apply to your use or purchase of our Services, even though you may have subsequently cancelled your account / subscription.

7.4 Importantly, all our rights in respect of the confidentiality undertakings and our limitation of liability as set out below will survive the termination of these Commercial Terms.

8. Our Services

8.1 Essentially, we are offering online services allowing you to have your customers complete and sign binding waiver and indemnity forms electronically and store such documents digitally, allowing for easy future access and paperless transacting.

8.2 Our Services are made available in different packages. Each package provides for a different amount of waiver and indemnity forms to be used by you and stored on our platform. The details of the various packages can be found at http://1tick.co.za.

8.3 You accept liability for the use of the waiver and indemnity as soon as you agree to this agreement through choosing to use our standard waiver and indemnity or by uploading your own waiver and indemnity form.

9. What we don’t do

  • We will not:

9.1.1 allow you to add clauses to the standard waiver and indemnity form;

9.1.2 edit the standard waiver and indemnity form;

9.1.3 enter into an agreement to provide Services with unassisted minors or entities that are not lawfully incorporated;

9.1.4 be responsible for your use of the waiver and indemnity form and related services provided by us.

  • You are responsible for:

9.2.1 ensuring that the details supplied to us for your business and event(s) are accurate and are updated where necessary from time to time;

9.2.2 the accuracy of the waiver and indemnity form if you choose to use your own waiver and indemnity form instead of our standard waiver and indemnity form;

9.2.3 ensuring that you use the Services correctly; and

9.2.4 ensuring that you subscribe to the correct package and changing the package to which you subscribe where necessary.

  • We will not be liable for any claims whatsoever arising from:

9.3.1 your clients still having a valid claim against you in spite of them having signed the waiver and indemnity form, whether it be our standard waiver and indemnity form or your own waiver and indemnity form.

9.3.2 anyone using your details to create events if you choose not to create an account prior to making use of our Services.

9.4 BEWARE! You use our Services entirely at your own risk.

9.5 It is entirely your responsibility to seek legal advice on the legal effect of the Services provided by us to you.The provision by us of the waiver and indemnity form does not constitute legal advice and nothing in this document should be construed as constituting legal advice.

10. The fees

10.1 The fees applicable to your use of the Services is based on the package to which you subscribe. Each package provides for a maximum number of waiver and indemnity forms to be completed and stored digitally. The details of each package can be found at http://1tick.co.za.

10.2 If you change the package to which you subscribe, such change will take place from the 1st(first) of the next calendar month and you will be billed accordingly from such month.

10.3 Remember, our fees can change, and we can add fees, at our discretion. However, changes to the fees will not affect you until you agree to those changes.

11. Payment

11.1 Billing details: billing details will be required before you can use our Services. You promise that the information you provide is true and accurate, and that you are authorised to use those billing details to make the payment of our fees. You will only be authorised to use the Services once your payment details have been validated and/or your first payment to us has been made successfully;

11.2 Additional charges: if you cancel a payment by giving instruction to your bank to return your funds, and they do so, you will be liable to us for any penalty which we incur to that bank, credit card issuer or other payment processor;

11.3 Foreign currency: if our fees are described in a different currency to that which you use, you accept all the risk for currency fluctuations and you undertake to pay us our fees in full in our currency. You similarly undertake to pay any levy that may arise because of our currencies differing;

11.4 Late payment: if you fail to make any payment when payment is due, we reserve the right to suspend your use of our Website and/or Services; and

11.5 Penalty interest: we also reserve the right to claim overdue penalty interest from you until you make payment, which will be charged at the prime rate of interest described by our bankers over the time period for which you are in default.

11.6 Change in subscription fees: where you change the package to which you subscribe during a calendar month, the change in the package and pricing will become effective at the start of the next calendar month. However, if you require your package to be upgraded with immediate effect, you will be liable for the change in price during that calendar month, resulting in each package being charged for pro ratafor the period of the month for which you used each package.

12. Subscription

  • You will be responsible for the payment of:

12.1.1 value added tax (“VAT“), as all fees are calculated exclusive of VAT; and

12.1.2 data charges, where applicable.

12.2 All fees shall be paid through a third party payment processor, PayFast, by way of electronic funds transfer, card payment or by way of monthly debit order, free of any deduction or set-off into the bank account as set out in our invoice.

12.3 Your subscription to the Services will be on a month-to-month basis, in perpetuity until the Services are cancelled. You may terminate your subscription at any time by giving us 30 (thirty) days’ written notice to such effect. Our rights to terminate your subscription are set out in these Commercial Terms.

12.4 The monthly subscription fee for use of the Services shall be for an amount as described on the Website – however, fees will generally be calculated based on the package you subscribe to. The monthly subscription fee may change from time to time, subject to us giving you 30 (thirty) days’ notice of such change.

12.5 No proportionate refunds will be given for Services paid for in advance, unless agreed to otherwise by us.

12.6 If you subscribe to a monthly subscription for the Services, your subscription will automatically renew on a monthly basis, after your initial subscription period has expired until you terminate your subscription.

12.7 Should you wish to upgrade the package to which you have subscribed with immediate effect, as opposed to at the start of the following calendar month, you will be required to contact us with such a request in order for the change to be implemented immediately. Any downgrades in packages will only take effect at the start of the next calendar month and will not be implemented during a calendar month.

13. Login details, usernames and passwords

13.1 Our Website makes use of login functionality requiring you to create an account, using either your email address, username and password (“Access Credentials“).

13.2 You are solely responsible for the safekeeping of these Access Credentials.

13.3 This means that should anyone enter your Access Credentials (whether that be you, your employees, your spouse, etc.), we assume that the person using the Services is you or has permission to use your account.

13.4 It is in your interest to familiarise yourself with our security requirements, guidelines and procedures communicated by us from time to time, and follow these carefully.

13.5 Inform us immediately if there has been, or if you suspect, any breach of security or confidentiality.

13.6 Where you are a business, you and your employees have the same responsibilities and we have the same rights – though we expect that you will be somewhat more diligent than these bare minimum rules.

14. Acceptable use policy

14.1 Not all devices may support the use of our Services. It is your responsibility to keep your device(s) updated and/or in a condition for them to support the use of our Services, including internet access capabilities.

14.2 The use of our Services may be restricted to certain geographical areas. It is your responsibility to determine whether your location is supported by our Services before incurring any liability to us as we will not be liable for any loss that you may incur because of our Services not being supported in your location.

  • You must respect our Website and intellectual property in the best of good faith, and use it only as we intend it to be used. Any use by you of our Website and/or Services which violates this undertaking can result in us terminating your use of our Website and/or Services. We will be the sole judge of what constitutes a violation of your undertaking to use our Website in the best of good faith, but these will likely be good grounds:

14.3.1 copying or distributing any of the content;

14.3.2 providing any untrue or incorrect information to our Website and/or our Services;

14.3.3 changing, modifying, copying, decompiling, circumventing, disabling, tampering with or any part of our Website and/or Services, including their security features or reverse engineering our Website and/or our Services;

14.3.4 infecting our Website with any software, malware or code that may infect, damage, delay or impede the operation of our Website or which may intercept, alter or interfere with any data generated by or received through our Website and/or the Services;

14.3.5 using malicious search technology, including, but not limited to, spiders and crawlers;

14.3.6 deep linking to any pages of our Website and/or Services in a way to suggest that you are the owner of any intellectual property in our Website and/or Services, except in so far as you are permitted to link to the webpage containing your waiver and indemnity form;

14.3.7 using the interactive sections of our Website and/or Services to post any material which, in our discretion, is false, defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violates any laws; or

14.3.8 allowing any third party to use your Access Credentials in any manner other than as permitted by these Commercial Terms.

15. Consent required for minors

15.1 We assume that by you being granted Access Credentials you are 18 (eighteen) years or older or have had a parent or guardian give consent on your behalf to use our Website and/or Services.

15.2 We accept no responsibility for invalid consent being provided by the users of our Website and/or Services.

16. Privacy policy

16.1 Please note that this clause 16applies in addition to the general privacy policy available on the Website.

16.2 We are committed to taking steps to protect your privacy when you use our Website and Services. We implement business practices that comply with all relevant legislation, including the Protection of Personal Information Act, 4 of 2013 (“POPI“).

16.3 When we refer to “Personal Information” or “Information“, we mean Personal Information as defined in POPI. It includes, for example, your full name, surname, email address, identity number, contact details, and location.

16.4 We also implement appropriate technical and other security measures to protect the integrity and confidentiality of your Personal Information. We protect and manage Information that we hold about you by using electronic and computer safeguards such as firewalls, data encryption, and physical and electronic access control to our buildings. We only authorise access to Information to those employees who require it to fulfil their designated responsibilities.

16.5 We may transfer your Information to foreign countries mainly for retention purposes or if our service providers are cross border or use systems cross border. If you continue to use our Website and/or Services, you expressly agree that we may transfer your Information cross border for these purposes. We will only share Information cross border with recipients who have similar data protection laws, such as POPI, or who have entered into agreements with us agreeing that the POPI principles apply to them.

16.6 We may track your use of our Website and/or Services for a number of purposes. Information obtained about you in this regard will not be shared or used in violation of these Commercial Terms or any applicable laws. Should you wish to have any Information about you in this regard depersonalised, you have the right to request us to do so, however, this may result in you not receiving the full benefit of our Website and/or Services.

16.7 We will provide you with Access Credentials in accordance with clause 13. It is however your responsibility to keep your Access Credentials secure. Your Access Credentials will receive the same security measures as all other Information held by us.

16.8 Any Personal Information that we may have of yours will only be published in so far as is required by the Services and in accordance with the requirements of the laws of South Africa.

16.9 We will keep your Personal Information confidential and only share it with others in terms of these Commercial Terms, where you consent to it, or if the law requires us to share it. We have trusted relationships with carefully selected third parties who perform services for us. All these service providers have a contract with us in terms whereof they have a legal obligation to secure your Personal Information and to use it only in a way that we permit.

  • If you believe we are using your Information unlawfully, please contact us at info@1tick.co.za. If you have no success in this regard, you may lodge a complaint to the Information Regulator:

16.10.1 Website: http://www.justice.gov.za/inforeg/index.html.

16.10.2 Address: SALU Building, 316 Thabo Sehume Street, Pretoria.

16.10.3 Contact number: 012 406 4818.

16.10.4 Fax number: 086 500 3351.

16.10.5 Email: inforeg@justice.gov.za.

17. Deemed rules for sending and receiving electronic messages

We will primarily use email and electronic notices on the Website as our main communication tool for all communications relating to our Services, or these Commercial Terms. This may include the use of SMS (short message services), registered mail or telephone.

18. Third party sites

18.1 Wemay provide certain hyperlinks to third party websites or apps only for yourconvenience,and the inclusion of any hyperlinks or any advertisement of any third party on ourWebsite does not implyendorsement by us of their websites or apps, theirproducts, business or security practices or any association with its operators.

18.2 If you access and use any third party websites, apps, products, services, and/or business, you do that solely at your own risk.

 

19. Intellectual property rights

19.1 You acknowledge and agree that all right, title and interest in, and to, any 1tick.co.za or other intellectual property (including but not limited to any copyright, trademark, design, logo, process, practice, or methodology which forms part of, or is displayed or used on the Website or the Services including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software) is proprietary to 1tick.co.za or the respective owner(s)’ property and will remain our or the owner’s property at all times.

19.2 You therefore agree that you will not at any time or under any circumstances acquire any rights of any nature in respect of such intellectual property by using the Services.

 

20. Warranties and representations

20.1 We give no guarantee of any kind concerning the content or quality of our Services. We do not give any warranty (express or implied) or make any representation that our Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose.

20.2 We make no representations to you, either express or implied, and we will have no liability or responsibility for the proper performance of the Website and/or Services and/or the information, images or audio contained on the Website. Our Services are used at your own risk.

  • You warrant to and in favour of us that:

20.3.1 you have the legal capacity to agree to and be bound by these Commercial Terms; and/or

20.3.2 you are 18 (eighteen) years or older; and

20.3.3 these Commercial Terms constitute a contract valid and binding on you and enforceable against you.

 

  • Each of the warranties given by you will:

20.4.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in these Commercial Terms;

20.4.2 continue and remain in force irrespective of whether your account is active, suspended or cancelled; and

20.4.3 be deemed to be material.

 

21. Severability

If any part of these Commercial Terms becomes illegal, invalid or unenforceable in any jurisdiction affected by these Commercial Terms, then those illegal, invalid or unenforceable provisions will be severed from these Commercial Terms (they will be treated as if they don’t exist), and the remaining provisions of these Commercial Terms will continue as valid and enforceable.

22. Confidentiality

You can understand how sensitive our business model is to information being leaked. So, you agree:

22.1 to keep all information gained from using our Website and/or our Services (“Confidential Information“) confidential; and

22.2 not to disclose the Confidential Information to any one, and to keep it confidential.

 

23. Non-circumvention

You may not circumvent our Website to avoid paying our fees or to evade paying our commission. We have the discretion to remove you from the Website should we find that you have circumvented our Website.

24. Limited liabilities

To be clear:

  • we will not be liable to you for any loss caused using our Website and/or Services or your liability to any third party arising from those subjects. This includes:

24.1.1 liability incurred by you as a result of one of your customers successfully suing you for harm or loss suffered by them despite the waiver and indemnity form provided by us.

24.1.2 any interruption, malfunction, downtime, off-line situation or other failure of the Website, system, databases or any of its components;

24.1.3 any loss or damage regarding your data or other data directly or indirectly caused by malfunction of the Website; and

24.1.4 any third party systems whatsoever, power failures, unlawful access to or theft of data, computer viruses or destructive code on the Website or third party systems or programming defects;

24.2 we will not be liable if any material available for downloading from the Website is not free from infection, viruses and/or other code that has contaminating or destructive properties;

24.3 our Website may include inaccuracies or typo’s – in such instances we can’t be held liable and can’t be forced to comply with offers that are genuinely (and/or negligently) erroneous;

24.4 we are not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt. Security measures have been implemented to ensure the safety and integrity of our Services. However, despite this, information that is transmitted over the internet may be susceptible to unlawful access and monitoring; and

24.5 finally, our limited liability applies to all and any kind of loss which we can possibly contract out of under law, including direct, indirect, consequential, special or other kinds of losses or claims which you may suffer.

 

25. Indemnity

You shall indemnify, defend and hold 1tick.co.za (including its shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time), its affiliates and their employees and suppliers harmless from any and all third party claims, any, actions, suits, proceedings, penalties, judgments, disbursements, fines, costs, expenses, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind)and liabilities, including reasonable attorneys’ fees whether directly or indirectly arising out of, relating to, or resulting from the negligence, breach of these Commercial Terms or violation of applicable law, rule, regulation by a Party or its affiliates, or their respective owners, officers, directors, employees, or representatives.

 

26. Waiver

Failure or neglect by 1tick.co.za to enforce any of these Terms, will not be construed as a waiver of its rights, nor will such failure or neglect in any way affect the validity of the whole or any part of these Terms, nor prejudice the rights of 1tick .co.za to take subsequent action.

 

27. Applicable law and disputes

27.1 The content of these Commercial Terms is governed by South African law, including the Website and any interaction you may have with us regardless of the country you are based in, the country where you access the Website or the country where you receive or use our Services.

27.2 Please take note that, if you access the Website from another country, you will bear sole responsibility for complying with that country’s laws.

27.3 If we ever have a dispute, then you agree that the Magistrates’ Court of South Africawill have sole jurisdiction to consider our dispute, applying these Commercial Terms and South African law.

 

28. Force majeure

 

Except for the obligation to pay monies due and owing, neither you nor we will be liable if either of us cannot perform in terms of any agreed terms due to reasons beyond our control. This includes lightning, flooding, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for which we are not responsible, and acts of government or other competent authorities (including telecommunications and internet service providers).

 

  1. Disclosure in terms of section 43 of Electronic Communications and Transactions Act, 25 of 2002

29.1 Site owner: 1tick.co.za

29.2 Legal status: 1tick.co.za is a private entity, duly founded in terms of the applicable laws of South Africa.

29.3 Founder: Theunis Hanekom & Dirty Boots

29.4 Description of main business of 1tickco.za the provision of digital waiver and indemnity forms and online storage of such.

29.5 Email address: info@1tick.co.za.

29.6 Website address: http://1tick.co.za.

29.7 Physical address: Conberg House, 5 Dreyersdal Road, Bergvliet,7945.

29.8 Postal address: Conberg House, 5 Dreyersdal Road, Bergvliet,7945

29.9 Registered address: Conberg House, 5 Dreyersdal Road, Bergvliet,7945