PLEASE READ THESE TERMS OF SERVICES CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SERVICES. BY CLICKING ON “SUBMIT” OR “I AGREE” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND YOUR INTENT THAT IT WILL BE BINDING BETWEEN YOU AND US.
1. DEFINITIONS
1.1. 2 Q’s: Quality and Quantity;
1.2. 5 P’s: Product (Transport Services), Position (Origin and Delivery Points), Period of availability (timing) Price and Payment terms;
1.3. Broker Agreement: means an agreement entered into between You and a Broker governing the relationship between you and the Broker;
1.4. Broker: means a User who has been appointed by a Seller or a Buyer to procure a Match; 1.5. Broker Fee: means the fee as determined by Match MX from time to time, that MatchMX will charge You where a Broker was appointed by You and assisted You in the use of the Services and a procured a succesfull Match. 1.6. Broker Services: means services made available by a Broker to enable You to use our Services; 1.7. Buyer: means a User who has agreed to acquire Products from a Seller pursuant to a Services Agreement; 1.8. Data : means all data related to the access and use of our Services hereunder, including all data related to Users and all data desiminated by a User or us during the provision of the Services;
1.9. FICA: means the Financial Intelligence Centre Act;
1.10. Match : means the instant where the Buyer and Seller agree on the 5 Ps and 2 Qs on the Platform which takes place prior to conclusion of a Services Agreement;
1.11. MatchMX or Us or We or Our : means MX Dots (a division of MatchMX Proprietary Limited (registration number [●])); 1.12. MatchMX Fees: means the fees payable by a Party to MatchMX for the use of the Service and in accordance with these Terms of Service;
1.13. Order: means an order for Products placed by a User on the Platform;
1.14. Parties or Party: means the parties or a party to a Transaction, being the Buyer and/or the Seller; 1.15. Platform: means the MX Dots software platform that enables Users to find certain Products as made available by a Seller, which platform is made available through the MatchMX web App, Android App or Apple (IOS) App; 1.16. Products: means end-to-end transport services approved by MatchMX from time to time;
1.17. Seller : means Users who has agreed to sell a Product/s to a Buyerpursuant to a Services Agreement; 1.18. Services : means making the Platform available to Users which enables the Users, amongst other things, to negotiate and conclude Services Agreements;
1.19. Services Agreement : means the conditions of services in respect of the Products specifically referred to under these Terms of Services, specific terms and conditions of the Services Agreement (see clause 10.6), (where applicable), [the Term Sheet] and such other specific terms as may be agreed to between the relevant Seller and Buyer;
1.20. Signature Date: means, for purposes of signing the Term Sheet (outside the Platform), means the date on which the last signatory signs the Term Sheet;
1.21. Term Sheet: (where applicable) the physical document signed by the Buyer and Seller that confirms the commercial terms for a particular Transaction between the Parties, which is issued by MatchMX immediately after a Match; 1.22. Terms of Service : has the meaning ascribed thereto in clause 2.1 below;
1.23. Transaction : means the sale and purchase of Products following a Match and in accordance with a Services Agreement;
1.24. Users: means users that have registered on the Platform and has opened an Account.
1.25. User ID: shall have the meaning ascribed thereto in clause 5.9;
1.26. VAT : means Value Added Tax as per the Value-added Tax Act, 89 of 1991.
1.27. Value Added Services: means such other services that may be made available from time to time by MatchMX (as specified on www.matchmx.com, including but not limited to payment clearing services, centralised administration on behalf of a party (i.e. invoicing on behalf of the seller) or logistical solutions as per Match MX transport network;
1.28. Writing : includes email and any other form of electronic communication set out in the Electronic Communications and Transactions Act, 25 of 2002, and signing or acceptance for purposes of these Terms and Conditions shall be read and construed as including any form of electronic signature, as contemplated by such Act;
1.29. You or Your or Yourself: Unless otherwise specifically stated, refers to you as a registered User of the Services.
2. OUR RELATIONSHIP WITH YOU
2.1. These are the terms and conditions ( Terms of Service ) relevant to the Services we supply. These Terms of Service incorporate the following additional terms (which also apply to Your use of our Services):-
2.1.1. Our Terms of Use ;
2.1.2. Our Privacy Policy ;
2.1.3. Our Agency Terms (if applicable).
2.2. The above terms and conditions and policies are hereby incorporated by reference and together with these Terms of Service is the agreement ( Agreement ) between Us and You for purposes of the Services. If there is any conflict between the above terms and conditions/policy and the Terms of Service the latter will prevail;
2.3. You acknowledge and agree that the provision of our Services to You as User creates a direct business relationship between Us and You.
2.4. We do not, and shall not be deemed to, direct or control You generally or in Your performances in connection with any subsequent Services Agreement between Yourself (as Buyer) and the Seller, or Yourself (as Seller) and the Buyer, Your acts or omissions, or Your operation as a User and all other performances associated herein.
2.5. You retain the sole right to determine when, where, and for how long You will utilize our Services. You retain the option, via the Platform, to accept or to decline or ignore a potential engagement with another User (either as Seller or Buyer). 2.6. Except as otherwise expressly provided herein (i.e. where we act as payment agent on behalf of a Buyer), the relationship between us and You is solely that of independent contracting parties. You expressly agree that:- 2.6.1. no joint venture, partnership, or agency relationship exists between You and Us and that neither of Us (except where agreed in Writing under these Terms of Service) have the authority to bind each other or hold ourselves out as an agent or authorized representative of the other; and
2.6.2. We may provide Value Added Services to all Users by supplying certain information about either the Seller and/or Buyer, but same shall be for general information purposes only, and does not constitute advice, negotiation or agency for any specific user in any way whatsoever.
2.7. IMPORTANT: Our business is the bringing together of Buyers and Sellers (“on demand lead generator”). We only introduce a Buyer and a Seller that wish to acquire and sell the Product. We may from time to time provide Value Added Services, which may be utilised on selection by the Buyer and/or Seller, subject to agreement to the Value Added Services terms and conditions, which will be presented before use of the Value Added Services.
3. YOUR RELATIONSHIP WITH OTHER USERS
3.1. You acknowledge and agree that:-
3.1.1. We are not responsible or liable for the actions or omissions of a registered User of our Services (Seller or Buyer) in relation to You or Your activities under any business relationship that is formed between You and a Buyer or Seller (through a Services Agreement) during the use of our Services. You shall have the sole responsibility for any obligations or liabilities as stated under such relationship under a Services Agreement;
3.1.2. We may release Your information You have submitted to Us via the Platform or otherwise to perform under these Terms of Services and which may be required by the other Party (either Buyer or Seller) to enable You or the other Party to perform under the relevant Services Agreement. We will inform You what information will be released and at what stage or purposes of Your engagement with the other Party (Buyer or Seller).
3.2. Although We may guide the Parties on what terms and conditions should apply between the Seller and the Buyer under a Services Agreement, and although We may make those terms and conditions available via our
Services (for your convenience) or allow the use of the agreed 5 Ps and 2 Qs for purposes of a Services Agreement, we are not a party to a Service Agreeement and will not be liable for any claim or liability under a Services Agreement concluded between the Seller and the Buyer. The Parties acknowledge that MatchMX may from time to time act as an agent or representative of a Party, and even in such instance, MatchMX shall have not liability or obligations under a Transaction where MatchMX acts as agent or representative. Accordingly You indemnify Us against any claim, damage, loss or cost that may result from a Services Agreement or the breach of same.
4. AMENDMENTS TO THESE TERMS OF SERVICE
4.1. We may amend the Terms of Service related to our Services from time to time. Amendments will be effective upon You continuing to utilise the Services following our posting of such updated Terms of Service on Our website or the MX Dots platform and presented via the MatchMX App when you login.
4.2. Your continued access or use of our Services after such posting constitutes Your consent to be bound by the Terms of Service (as amended).
5. YOUR ACCOUNT
5.1. In order to use most aspects of the Services, You must register, create a profile ( Profile ) and maintain an account (the Account ).
5.2. Where You appoint other authorised representatives (a Representative ) for purposes of Your Account, you shall ensure that each Representative is aware and agree to these Terms of Services, including the Broker that You may appointment and allow to execute certain actions on Your behalf on Your Account.
5.3. If You are a natural person, you must be 18 years or older to open an Account and use the Services. 5.4. If You are a business entity (juristic person), then You hereby represent that:-
5.4.1. You have the authority to bind the User to these Terms of Services;
5.4.2. the address You use when registering is the principal place of business of the Registered Party; and 5.4.3. all other information submitted to the Platform during the registration process is true, accurate, current and complete. For purposes of this provision, a branch or representative office will not be considered a separate entity and its principal place of business will be deemed to be that of its head office.
5.5. By becoming a User, you consent to the inclusion of your personal information or the personal information of the User (as juristic person) in our database and authorises the Platform to share such information (different information at various stages of the Services, or Services Agreement process) with other Users.
5.6. Account registration requires You to submit to Us certain information as directed by Us. In this regard You agree:- 5.6.1. to maintain accurate, complete, and up-to-date information in your Account;
5.6.2. that Your failure to maintain accurate, complete, and up-to-date Account information, may result in Your inability to access and use the Services or our termination of this Agreement;
5.6.3. that We may use the information You provide Us with to submit to Our selected service provider/s to verify who You are, including but not limited to verify whether Your Account details submitted to Us are accurate or not. 5.7. Submission of Your information as per the registration form does not automatically give You the right to access the Services. We have the right not to grant You access to an Account or to revoke such right and disable any user identification code, whether chosen by You or allocated by Us, at any time, if in our reasonable opinion You have failed to comply with any of the provisions of the Agreement.
5.8. By entering your personal information on the Account, You warrant that the person using the Service Account is you and/or You have the legal authority to act behalf of a juristic person requesting an Account.
5.9. On acceptance of the registration information, You will be allowed to select or be provided with the necessary Account access credentials (i.e. username and password) ( User ID ) or any other piece of information as part of our security procedures; You MUST treat your User ID as confidential. You MUST not disclose your User ID to any third party . You must not do multiple log-ins simultaneously (log-in at any one point in time more than once using the same User ID. TAKE NOTE : full utilisation of the Services may be subject to further verification (see clause 5.10 below).
5.10. Verification information (including but not limited to FICA documentation) :
5.10.1. In certain instances You may be asked to provide additional information to access or use the Services (for example certain FICA documentation that you as a Buyer must provide). The additional information shall only be utilised to verify Your details or the details of the juristic person and as agreed to under these Terms of Services.
5.10.2. You agree that You may be denied access to or use of the Services or part thereof or to participate in any Transaction if you refuse to provide the requested information.
5.10.3. We will notify You if we cannot verify Your identity or whether your banking details are correct. 5.10.4. You will be able to change your personal information or submit up to date FICA documentation to Us via our Services or as per an agreed channel at any time.
5.10.5. You hereby agree and grant MatchMX the right to make available FICA Documentation (or part thereof) to a Seller that wants to explore the possibility of a possible Services Agreement to assist You in the conclusion and execution of the Services Agreement with said other Party. It is your responsibility to ensure that the FICA documentation in Our possession is up to date.
5.11. MatchMX shall be entitled (in its sole discretion) to accept information as received from You. MatchMX may remove information that You may have placed on the Platform, and communicate it to You if the information as may be required, is incomplete or found to be untrue or false.
5.12. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account details at all times. You are liable for any damage, loss or costs sustained by You, Us or by any third party howsoever arising as a result of any actions by You or any third party using Your User ID. You may only possess one Account and may not assign or transfer Your Account to any other person or entity. Unless where You have selected our Broker Services (subject to clause 8) and appointed a Broker, you may not authorize third parties to use your Account.
5.13. If you know or suspect that anyone other than you knows your User ID, You must promptly notify Us at: info@matchmx.com or via our helpline at [●] in order for Us to investigate the security breach further and You must further make sure you change your User ID immediately.
6. AVAILABILITY OF THE PLATFORM AND SUPPORT SERVICES
6.1. You acknowledge that the Platform will not be available at all times. The Platform and its links to various other sources may, for example, be unavailable due to interruptions and necessary maintenance and repair work which is not within Our control.
6.2. We will be able to provide the User access to the Platform in relation to the User’s access rights once we have approved his/her/its registration and the parties have complied with any further conditions imposed by law. 6.3. To access the Platform using the internet You will need Your own computer or other device and internet connectivity. 6.4. You alone are responsible for buying, installing and maintaining Your connection to the internet and must pay all related costs, fees and expenses.
6.5. If You experience problems with the internet or Your internet connection, You should contact Your internet service provider first to try to resolve these problems before You contact us.
6.6. As part of our Services we shall make available appropriate support and maintenance services to Users, subject to our Standard Support Policy.
7. SERVICES: RIGHTS, OBLIGATIONS AND RESTRICTIONS
7.1. Subject to these Terms of Service, we hereby grant you a non-exclusive, non-transferrable, non-assignable and non sub-licensable right to use our Services to buy or sell Products or Transport Services and such Value Added Services we may make available from time to time ( Licensed Purpose ). The Services may not be utilised as a platform for services similar to our Services, but purely for the Licensed Purpose only.
7.2. Any use of the Platforms and Services not permitted by this Agreement is prohibited and, without limiting the generality of the aforegoing, You will not permit others to:
7.2.1. license, sub-license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platforms and Services or make the Platforms and Services available to any third party;
7.2.2. copy, modify, reverse compile, reverse engineer or extract source codes from the Platforms and Services, except to the extent that We may not prohibit You from doing so under applicable laws or regulations or You have Our prior Written consent to do so. Where applicable laws or regulations entitle You to reverse compile or extract source codes from the Platforms and Services, You will first contact Us to request the information You need;
7.3. You agree to comply with all applicable laws when using the Services and You may only use the Services for lawful purposes. You will not, in Your use of the Services, cause nuisance, annoyance and/or inconvenience to the Buyer or Seller any other party/user of the Services or use the Services to buy or sell illegal Product or to form part of an illegal transaction.
8. APPOINTMENT OF A BROKER
8.1. You may appoint a Broker at any time to assist You in the use of the Services. The appointment of a Broker is subject to the following terms and conditions:-
8.1.1. Subject to clause 8.1.4 below, the appointment shall be for a minimum period of 1 (one) year which shall automatically renew, unless either you or the Broker terminates such appointment on a 30 (thirty) days written notice delivered to you or the Broker, as applicable, and MatchMX);
8.1.2. Any Broker Agreement shall include provisions that authorise the Broker to contract on Your behalf via the Platform. You shall provide a copy of the signed Broker Agreement to MatchMX on Written request. You warrant that the Broker Agreement is valid and enforceable in accordance with its terms.
8.1.3. You will only be allowed to appoint one Broker, however the Broker shall not be restricted and may represent multiple Buyers and/or Sellers. MatchMX shall not be liable for conflicts of interest arsing from a Broker representing multiple Buyers and/or Sellers.
8.1.4. Where you allow a Broker to represent you (including conducting negotiations on your behalf via the Platform), you agree that MatchMX shall not be liable for any actions and/or omissions of the Broker during such representation, and you accordingly indeminify and hold MatchMX harmless against any adverse consequences (including consequential or indirect damages) as a result of same. Take note: although the Broker may execute certain actions on your behalf, the Broker may not submit a Match and you are stil responsible for the final approval of a Services Agreement . During your authorisation to the Broker, you acknwoeldge, agree and provide your consent that
the Broker will. via his/her own Account. have access to and visibility of certain information about a Transaction. The Broker will never be allowed access to your Account and you should also not allow the Broker to your own Account.
8.1.5. A Broker Fee shall be due and payable on agreement to a Match, either confirmed by You or on Your behalf.
8.1.6. The release of further information to You, subsequent to a Match, shall be subject to the payment of the Broker Fees to us.
8.1.7. Dispute / Termination : during the appointment of a Broker, You may lodge a dispute ( Dispute Notification ) that You may have with the Broker to: info@matchmx.com . On submission of the Dispute Notification we would require You to provide full details of the dispute. On receipt of said Dispute Notification MatchMX shall contact You within 5 (five) days and determine whether the dispute can be resolved. If it is determined that the dispute cannot be resolved or the dispute cannot be resolved within 10 (ten) days, which ever is the earliest, then You may terminate the Broker Services.
8.2. The Broker may terminated his/her appointment at any time in accordance with the Broker Agreement.
9. YOUR OBLIGATIONS
You warrant and agree that You will:
9.1. act in such a manner that is beneficial to the interest of MatchMX and the other Party to a Services Agreement; 9.2. make available information and content (as required by MatchMX from time to time) to enable MatchMX to present the information provided about You for purposes of a Transaction to the other Party (Buyer or Seller) in order to facilitate the relationship between You and the other Party and/or to facilitate the conclusion of a Services Agreement between You and the other Party;
9.3. perform as agreed to under a Services Agreement, and shall act in such a manner as You reasonably consider to be most beneficial to the interests of MatchMX and the other Party;
9.4. adhere strictly to all of MatchMX’s applicable policies or required service levels made available from time to time; 9.5. provide the necessary information as required for the MatchMX 5 P’s and 2 Q’s and such other information as may be required by MatchMX from time to time, in order for MatchMX to present to potential Buyers or Sellers via our Platform. Information will only be release when required during the process and for purposes of a Services Agreement. 9.6. Where You provide information, ensure that it is:-
9.6.1. accurate;
9.6.2. not misleading, deceptive or fraudulent;
9.6.3. not in breach of any third party rights;
9.6.4. made in compliance with all applicable laws and regulations or codes; and
9.6.5. not forged, threatening or offensive.
9.7. adhere to all applicable laws and requirements when providing any information and/or details. 9.8. during regular trading hours, use all Your best effort to be available to receive communications and subsequently provide the necessary information and/or details required for the other Party to fulfil its obligations under a possible Services Agreement;
9.9. notify us and the other party, via our Services and/or Platform, immediately when there have been any amendments and/or changes made to the information/details supplied for any reason and provide MatchMX with said changes/amendments; and
9.10. exercise due care, diligence and skill in the provision of the required information during the use of the Services, a Services Agreement, and shall not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of MatchMX, its shareholders or directors or the users, failing which, You will immediately be deemed to be committing a material breach of this Agreement.
10. THE CONTRACT BETWEEN THE SELLER AND BUYER
10.1. MatchMX is only a lead generator to assist the contracting parties (i.e. the Seller and Buyer) in execution of the Transaction between each other and/or assist (in terms of technology) in resolution of any complaint or dispute that may occur between the Parties and facilitate the Parties’ relationship and/or communication with one another.
10.2. Although certain information, such as the information obtained from a Match, may be utilised as part of the Services Agreement, at no stage whatsoever will MatchMX be a party to a Services Agreement. 10.3. Where any notifications or information submitted via the Platform are required under the abovementioned Services Agreement, the sending and receiving of same will be managed in accordance with the Terms of Use (‘ electronic communications and contact ’).
10.4. Limited Payment Collection Agent : We may be appointed by a Seller to act as a collection agent. Please see authorisation and payment terms as per clause 11 below.
10.5. The contract between the Buyer and the Seller (Services Agreement) is formed as follows: 10.5.1. Presentation of Order : The request for an available Product made by a potential Buyer, via the Platform, is only an invitation to do business (a notice of a request for a Product and not an offer). The potential Buyer may remove any request for a Product from the Platform without notification prior to a potential Seller’s submission of its offer to supply the Product. The same applies for the offer to supply a Product by the potential Seller, which offer shall only be an invitation to do business by the potential Buyer.
10.5.2. Selection of an Order : Where applicable the potential Buyer may select a specific Product that may be of interest to the potential Buyer or the potential Seller may confirm availability of Product as per the potential Buyer’s request. 10.5.3. Changes to an Order : You may make changes to any Order information/details in relation to Products listed via our Services, up until a Match.
10.5.4. The Match: Subsequent to agreement on the 5 Ps and the 2 Qs under a selected Order, a Match will be formed. Subsequent to Match a unique number ( Match ID ) will be issued and the Order will be removed from the bulk order screen of the Platform. At this point no Services Agreement has been concluded.
10.5.5. Provision of Information :
10.5.5.1. Both the potential Buyer and potential Seller hereby acknowledge and agree that on a Match, We may provide further information (including but not limited to the FICA information) about the potential Buyer and/or the potential Seller to the potential Seller and/or the potential Buyer (as applicable) to assist the execution of the Services Agreement. The recipient of the information (the potential Seller and/or the potential Buyer) agrees not to use the personal information of the other User
or its representative as received via Platform, for any other purpose other than execution of the Services Agreement.
10.5.5.2. Where the potential Buyer selects to be anonymous, We will only share the Match ID with the potential Seller.
10.5.6. Although MatchMX is not a party to the Services Agreement or involved in the conclusion of the Services Agreement You should take note of the following (as guidance to You only):-
10.5.6.1. The offer: Subsequent to a Match and on receipt of notification on availability of Product from the potential Seller, a potential Buyer may offer to acquire the Product against the available information which shall constitutes the potential Buyer’s offer to acquire the Product.
10.5.6.2. Amendments to offer: The potential Seller and the potential Buyer may still, after receipt of said potential Buyer’s offer, amend certain conditions as they wish, which will be confirmed under an addendum ( Addendum ).
10.5.6.3. Seller’s notification of acceptance: On communication (through whatever medium, including the Platform) of the potential Seller’s acceptance of the potential Buyer’s offer (or amended offer) to the potential Buyer a contract (the relevant Services Agreement) will be formed between the Seller and the Buyer. By clicking on the “Accept” button on the Platform the Seller agrees that clicking on said “Accept” button will indicate the potential Seller’s acceptance of the potential Buyer’s offer, which communication will be submitted by MatchMX to the potential Buyer via the Platform.
10.5.6.4. When is the contract (Services Agreement) concluded : The contract between the Seller and Buyer will come into existence subsequent to i) acceptance of a Seller’s offer for the selected Product(s) by the Buyer (clause 10.5.6.3 above) and ii) presentation of said acceptance to the Seller via the Platform (including through presentation of a Term Sheet). Unless otherwise agreed between the Parties, a Term Sheet in respect of that Transaction will be issued by MatchMX and sent to the Parties, and the relevant Services Agreement shall commence on the Signature Date or such date as the respective parties perform as agreed to under the Term Sheet, which ever date is the earliest.
10.6. For the standard Services Agreement specific terms and conditions – click here
11. CHARGES/FEES AND PAYMENT
Charges & Fees
11.1. The use of the Services is subject to MatchMX Fees. MatchMX Fee will be presented to the Users from time to time on the MatchMX website or as agreed to in Writing between Us and You.
11.2. Subject to the Services Agreement concluded between the Buyer and the Seller, the Buyer will pay a fee ( Product Fee ) to the Seller for the supply of the relevant Product. The Product Fee will be presented to the Buyer prior to any payment. A Product Fee is distinct from the MatchMX Fee (above) owed to us for our Services.
11.3. All prices and/or costs quoted by us shall be inclusive of all applicable taxes but excluding VAT, if applicable. VAT shall only be reflected, if applicable, which shall then be shown clearly and separately to the agreed charges in terms of the Service.
11.4. It may be that, despite our best efforts, the MatchMX Fees may be incorrectly published on the Platform. Where any incorrect MatchMX Fee was published, We have the right to amend it accordingly without notice and charge You accordingly.
11.5. Depending on Your use of the Services and/or Your loyalty to our Service, we may in our sole discretion from time to time, provide certain Users with certain promotional offers and discounts that may result in different MatchMX Fees charged for the same or similar Product, obtained through the use of the Services, and You agree that such promotional offers and discounts, unless also made available to You, shall have no bearing on Your use of the Services or the MatchMX Fees applied to You.
11.6. We reserve the right to establish, remove and/or revise MatchMX Fees for any or all Services obtained through the use of the Match MX Services at any time in our sole discretion, however this will not affect those transactions where the Match MX Fees have already been paid, unless otherwise agreed to under these Terms of Service. Such establishment, removal and/or revision of Match MX Fees for any or all Services will be communicated to all applicable parties via a notification that will be sent via the Platform.
Payment & Receipts
11.7. MatchMX Fee : Unless otherwise agreed to in Writing, MatchMX will invoice the relevant paying User every time a MatchMX Fee is charged to him by MatchMX, where same invoice will be sent to that relevant User’s Account and/or email address.
11.8. Product Fee:
11.8.1. All Product Fees must be paid within the time allowed to under a Services Agreement. 11.8.2. The method for payment of Product Fee shall be agreed to between the Parties to the relevant Services Agreement. 11.8.3. Where You have selected Match MX to execute payment on Your behalf we will execute the payment in accordance
with Your instructions and subject to the conditions relevant to the specific Match MX payment services. 11.8.4. We may process payments from You via a third party service. You agree to comply with that relevant third party’s terms and conditions in relation to the payment processing service.
12. INTELLECTUAL PROPERTY
12.1. Except as expressly stated otherwise, this Agreement does not in any way grant, assign, transfer or license any of either party’s intellectual property rights to the other party.
12.2. You acknowledge that any and all intellectual property rights subsisting in or used in connection with the Platforms and Services, including all documentation, updates, upgrades, enhancements, new developments and improvements are and shall remain the sole property of MatchMX. You shall not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership MatchMX thereof.
12.3. In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, You acknowledge that such inventions, designs or processes shall be the property of MatchMX, unless otherwise agreed in Writing by MatchMX.
12.4. You will retain ownership of any original content or data which You may upload, transmit or store when using our Platforms and Services.
12.5. We will own all compilations, collective works or derivative works created by Us which may incorporate Your content.
13. UPDATES TO PLATFORMS AND PRODUCTS
13.1. We may from time to time provide enhancements or improvements to the features/functionality of the Platforms and Services, which may include patches, bug fixes, updates, upgrades and other modifications ( Updates ).
13.2. Such Updates may occur automatically or manually. We do not guarantee that We will make any Updates available for any of the Platforms and Services, or that such Updates will continue to support Your device or system. 13.3. Updates may modify or delete certain features and/or functionalities of the Platforms and Services. You agree that We have no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Platforms and Services to You.
13.4. You further agree that all Updates will be (i) deemed to constitute an integral part of the Platforms and Services, and (ii) subject to the Agreement and conditions of this Agreement.
13.5. No Service maintenance is provided under this Agreement, except for Updates.
14. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.
14.1. Services:
14.1.1. We provide our Services to you on an “as-is” and on an “as-available” basis. To the maximum extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Services or any content on it, whether express or implied. In addition, We make no representation, guarantee or warranty regarding the timelines, quality, reliability, suitability, or availability of the Services
through the use of the Platform, or that the use of the Services will be uninterrupted or error-free. You agree that it is within Your sole discretion to use the Services and that the entire risk arising out of Your use of the Services remains solely with You, to the maximum extent permitted under any applicable law and that You will indemnify Us against any claim, demand, damage, costs, loss or lability (including reasonable attorney’s fees) related to Your use of our Services.
14.1.2. You acknowledge that Platform and Services in general are not error-free and agree that the existence of such errors shall not constitute a breach of this Agreement.
14.1.3. Although MatchMX does not warrant that the Platform and Services supplied hereunder shall be free from all known viruses, it has used commercially reasonable efforts to check for the most commonly known viruses prior, but You are solely responsible for virus scanning the Services.
14.1.4. Access to the Platform and Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Our control.
14.1.5. While we endeavour to ensure that the Platform and Services are normally available 24 hours a day, We shall not be liable if, for any reason, the Platforms and Services are unavailable at any time or for any period. We do not guarantee the availability or uptime of our Services. You acknowledge and agree that our Services may be unavailable at any time and for any reason (e.g., due to emergency – or scheduled maintenance or network failure). Further, our Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and we are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
14.1.6. We, our shareholders, directors (where applicable), officers, representatives, agents, employees and Brokers shall not be liable for any direct, indirect, incidental, special, or consequential damages of any kind whatsoever or howsoever caused arising from the access or use of the Services or the purchase of any of our or any third party products or services.
14.1.7. You agree to indemnify and hold Us and our directors, shareholders, officers, representatives, agents, employees, and Brokers harmless from any and all claims, demands, losses, liabilities, and expenses (including attorney own client fees), arising out of or in connection with: (i) Your use of the Platform or Services, (ii) Your breach or violation of any the Terms of Service; or (iii) Your violation of our rights under these Terms of Services or in law.
14.1.8. In the event that You discover a material error which substantially affects Your use of the Services and notifies MatchMX of the error within 90 days from a Transaction (Warranty Period), MatchMX shall, at its sole option, either refund the MatchMX Fee or use all reasonable endeavours to correct, by patch or update (at its option), that part of the Service which does not so comply, provided that such non-compliance has not been caused by any modification, variation or addition to the Services not performed by MatchMX or caused by Your incorrect use, abuse or corruption of the Services or by use of the Services with other products or software or on equipment with which it is incompatible.
14.1.9. In addition to our warranties under our Terms of Use, we do not represent, warrant or guarantee that Your access to or use of our Services will result in a successful Transaction under a Services Agreement. We operate as an on demand lead generation and related service only and make no representations, warranties or guarantees as to the actions or inactions of another User.
14.1.10. Notwithstanding Our appointment as the limited payment collection agent for the Seller for the purpose of accepting payment from the Buyer or limited payment agent for the Buyer for making the necessary payment to the Seller and producing receipts and facilitating the communications between both the Seller and Buyer on the Your behalf, We expressly disclaim all liability for any act or omission of You, any User or other third party.
14.1.11. Where We may be liable for damages, losses or expenses, it shall be limitid to the MatchMX Fees paid over a period of 3 (three) months prior to the occurrence of the event that leads to Our liability. 14.2. Services Agreement – Tansaction Risks:
14.2.1. Users are hereby made aware that there may be risks of dealing with people providing false or incorrect information. MatchMX uses several techniques and acquire additional information to verify the accuracy of the information the Users provide MatchMX when they register to open an Account, however, because User verification on the internet or via the Platform is difficult and not always accurate, MatchMX cannot and does not guarantee each User’s purported identity or information. We encourage the Users to use the various tools available on the Account, as well as common sense, to evaluate with whom You are dealing with via the Platform.
14.2.2. Each User acknowledges that it is fully assuming the risks ( Transaction Risks ) when using the Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to Products that are the subject of Transactions using the Services or the Platform. Transaction Risks shall include, but are not limited to mis-representation of Products, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, failure to achieve service levels, cost mis-calculations, breach of warranty, breach of contract and transportation accidents. Transaction Risks also include the risks that the distribution, offer, display, purchase, sale and/or use of Products offered or displayed on the Platform may violate or may be asserted to violate third party rights, and the risk that We or a User may incur costs of defence or other costs in connection with third parties’ assertion of third party rights, or in connection with any claims by any party that they are entitled to defence or indemnification in relation to assertions of rights, demands or claims by third party rights claimants. Such risks also include the risks that Buyers of Products or others claiming to have suffered injuries or harms relating to Product originally obtained by the Buyer of the Services may suffer harm and/or assert claims arising from their use of such Products. Each User agrees that MatchMX shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
14.2.3. The Services have no editorial rights to the information placed by You on the Platform for purposes of the 5 Ps and 2 Qs and will communicate the information, as received from You to the other Party.
14.2.4. MatchMX bears no liability for any inaccuracies in the information supplied via the Platform or otherwise in the provision by MatchMX of the Services. Consequently, should the Buyer order any Product from a Seller which is in fact not available for whatsoever reason, any resulting dispute shall be resolved between the Seller and the Buyer.
14.2.5. Each Product is subject to its own terms and conditions (including but not limited to pricing of the Product deal) as made available by the Seller. The Platform shall endeavour to reflect, to the best of Our ability, all Seller terms and conditions relevant to each Product. It is the Buyer’s responsibility to familiarise itself with the Seller’s terms and conditions (including those submitted subsequent to the Match) prior to purchasing any of the Producta.
14.2.6. The Services Agreement to be concluded on the sale of a Product is between the Buyer and the Seller; MatchMX is not a party to it. The Buyer’s rights and obligations under any purchase from a Seller will be as agreed between the Buyer and the Seller, subject to the express provisions contained under these Terms of Services. This means that a Seller is solely responsible for the fulfilment of all aspects of the Buyer’s offer and the Buyer for full payment of the purchased Product. You hereby indemnify us against any claim, demand, damage, costs, loss or lability (incl. reasonable attorney’s fees) related to the Services Agreement.
14.2.7. Although MatchMX reserves the right to become involved in any dispute between a Buyer and a Seller in an attempt to resolve such dispute, MatchMX is not obliged to do so and any disputes must be resolved between the Buyer and the relevant Seller alone.
14.3. The provisions of this clause 14 constitute stipulations for the benefit of MatchMX’s directors, shareholders, officers, representatives, agents, employees, and Brokers (who are not party to this Agreement), who may accept such benefits at any time and in whatsoever manner.
14.4. In addition, as the Services may be used by You to select a suitable supplier for the delivery of the Products, You agree that we have no responsibility or liability to You related to the availability, delivery and use of the such supplier’s services or such other claim that may result as a consequence of any breach under the services agreement with said supplier.
14.5. Force Majeure: We will not be liable to You for any default or delay in the performance of the Services to You if and to the extent that such default or delay is caused by flood, fire, any act of god, war or civil disturbance, labour unrest, court order, pandemic, failures of the internet or any public telecommunications network, hacking attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures
or any other circumstance beyond Our reasonable control including fluctuations in communications or utility services and provided Ee are without fault in causing such default or delay, and such default or delay could not have been prevented by the Us through the use of alternative sources, workaround plans or other means.
15. USER WARRANTIES
15.1. You hereby represent and warrant that:
15.1.1. You have full power and authority to enter into this Agreement and perform your obligations hereunder; 15.1.2. You have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with these Terms of Services; and You will comply with all applicable laws in your performance hereunder, including holding and complying with all permits, licenses, registrations and/or other governmental authorisations that may be necessary to present the Product (as Seller) via the Platform; 15.1.3. You will, in using the Platform and the Services, at all times (i) comply with all applicable laws, enactments and regulations and (ii) not infringe on any third party’s intellectual property rights.
16. ELECTRONIC COMMUNICATIONS.
16.1. By creating an Account, You agree that We may send you informational via Your preferred selected communication option as part of the normal business operation of Your use of the Services. You may opt-out of receiving such electronic communications by either:-
16.1.1. unsubscribing from the electronic communication as per the available functionality;
16.1.2. texting the word “STOP” to Us from Uour cell phone to the cell phone number We may make available from time to time on the Platform;
16.1.3. use the MatchMX App and under Profile/User select “Delete Account”; or
16.1.4. email Us on info@matchmx.com.
16.2. Take note , that unsubscribing from electronic communications from Us by Uou may result in certain functions of the Services not working.
17. SUSPENSION AND TERMINATION OF OUR SERVICES
17.1. Your termination :
17.1.1. You can terminate the Services at any time by cancelling Your Account as per the option available in Your profile section.
17.1.2. If a Buyer, cancels his/her/its Account, all Transactions, where the delivery date still needs to occur, will automatically be cancelled.
17.1.3. If the Seller cancels the Account, all third party transport fees that may apply will be due and payable immediately and any other costs agreed to pursuant ot the relevant Order. You hereby authorise us to deduct the agreed amounts. If you wish to re-activate your Account again You will have to contact us in Writing.
17.1.4. If you wish us to remove all Your personal information from our Services You can email us at: info@matchMX.com. On receipt of Your notice and confirmation that no fees are outstanding we will terminate this Agreement and remove Your personal information as soon as reasonably possible, with the understanding that You have removed all User content / material that You may have downloaded via our Services. We will be entitled to retain such information as may be required by law.
17.2. Our suspension, deactivation and/or termination :
17.2.1. We may immediately, without notice terminate these Terms of Services if (i) You have materially breached Your obligations under this Agreement or any other terms and conditions of policies incorporated by reference or if, (ii) You have violated applicable laws, regulations or third party rights, or (iii) We believe in good faith that such action is reasonably necessary to protect the personal safety or property of Us or any other third party (incluing another
User).
17.2.2. In addition, We may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) You have breached this Agreement, other terms and conditions or policies incorporated by reference, applicable laws, regulations, or third party rights, (iii) You have provided inaccurate, fraudulent, outdated or incomplete information during the Account registration, uploading of the Products and/or requests for Seller delivery services, (iv) We become aware of or have
received complaints about Your performance or conduct, (v) You have repeatedly cancelled Transactions subsequent to a Match or failed to respond to offers/requests without a valid reason, or (vi) MatchMX believes in good faith that such action is reasonably necessary to protect the personal safety or property of MatchMX, its directors, employees, Users or third parties, or to prevent fraud or other illegal activity:
17.2.2.1. cancel any pending or confirmed Match or requests for Product;
17.2.2.2. limit the User’s access to or use of the Services;
17.2.2.3. temporarily or permanently revoke any special status associated with a User’s Account; or 17.2.2.4. temporarily or in case of severe or repeated offenses permanently suspend a User’s Account. 17.2.3. In case of non-material breaches and where appropriate, the User will be given notice of any intended measure by Us and an opportunity to resolve the issue to Our reasonable satisfaction.
17.3. Consequences of termination :
17.3.1. Termination of the Terms of Services will not result in the termination of the Terms of Use for purposes of our website and other sites (in general), however, if the above breach has something to do with our website, then termination will be take such action as We deem appropriate, including but not limited to withdraw Your right to use our website.
17.3.2. Upon termination of this Agreement, you shall cease all use of the Platform and Services. 17.3.3. Termination of the Terms of Services will not affect any Services Agreement in place at the time of termination hereof unless such termination is the result of cwrtain actions by You under a Services Agreement.
18. DISPUTE RESOLUTION
Any dispute arising from the provision of the Services shall be subject to the following dispute resolution procedures:-
18.1. Informal dispute resolution : If there is any dispute we (You and Us) will first attempt to resolve it informally. You must first contact our service manager at: info@matchmx.com. You will then be given an opportunity to first discuss the problem/dispute with the relevant service manager. The dispute must be submitted within 10 (ten) days from You becoming aware of the issue/problem. If the dispute cannot be resolved within 10 (ten) days of the dispute been referred to a service manager then the below clauses will apply.
18.2. Institution of Formal Proceedings : Subject to the provisions of clauses 18.1 and 18.7, the parties agree that either party may elect to refer any dispute which may arise to either to the High Court of South Africa or to arbitration proceedings as contemplated in clause 18.3. Upon election by a Party initiating the relevant dispute proceedings, the other party will be bound by such election for the purposes of the dispute in question.
18.3. Arbitration : If the parties are unable to resolve any dispute informally and either party has elected to commence arbitration proceedings to resolve the dispute in terms of clause 18.2, then such dispute shall on Written demand by the electing party be submitted to arbitration at Arbitration Foundation of Southern Africa ( AFSA ) in Cape Town. Either party may select to participate in the arbitration live, by phone, video conferencing or by submission of documents.
18.4. Status of arbitration ruling : The decision of the arbitrator shall be binding on the parties to the arbitration after the expiry of the period of 20 (twenty) days from the date of the arbitrator’s ruling if no appeal has been lodged by any party or upon the issue of determination by the appeal panel, as the case may be. A decision, which becomes final and binding in terms of this clause 18.4 may be made an order of court at the instance of any party to the arbitration. The parties agree to keep the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
18.5. Rapid resolution of disputes : The Parties shall use commercially reasonable efforts to resolve disputes arising as rapidly as possible.
18.6. Confidentiality : All disputes will be dealt with in confidentiality to protect the reputation of the parties; 18.7. Excluded relief : This clause 18 shall not preclude either party from seeking urgent or interim relief from the High Court of South Africa or any other competent organs of state created for the specific purpose of regulating the business or industry activities in which the parties are engaged including forums available to you as a consumer. 18.8. Agreed Jurisdiction : The Parties hereby consent to the jurisdiction of the Western Cape High Court (Cape Town) in respect of proceedings referred to in clause 18.2 above.
18.9. Any dispute arising from a Services Agreement shall be managed as agreed to between the Buyer and Seller.
19. GENERAL
19.1. Ths Agreement expressly supersede prior agreements or arrangements with You, except obviously for those terms and conditions that are incorporated by reference to these Terms of Service.
19.2. You may not assign your rights and obligations under this Agreement without Our prior Written approval. We may assign our rights and obligations under this Agreement without Uour consent to: (i) a subsidiary or affiliate; (ii) an acquirer of our equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this clause shall be void.
19.3. Except as specifically stated in these Terms of Service, nobody else has any rights under this Agreement. This Agreement is between You and Ys. No other person shall have any rights to enforce any of its terms. 19.4. If any provision of these Terms of Service is or becomes unenforceable for any reason, then such provision will be treated as if it had not been included in these Terms of Service to the extent that it remains unenforceable and shall not affect the validity of the remaining provisions of these Terms of Service.
19.5. The Agreement are governed by and interpreted in accordance with the laws of the Republic of South Africa without giving effect to any principles of conflict of law, with you irrevocably consenting to the exclusive jurisdiction of the courts of South Africa, in respect of all proceedings arising out of or pursuant to the Agreement.
19.6. Even if We delay in enforcing this Agreement, We can still enforce it later. If We do not insist immediately that You do anything You are required to do under this Agreement, or if We delay in taking steps against You in respect of Your breach of this Agreement, that will not mean that You do not have to do those things and it will not prevent Us taking steps against You at a later date. For example, if You miss a payment and We do not chase You but We continue to provide the Services, We can still require You to make the payment at a later date.
