TERMS AND CONDITIONS
SKYCAFE TERMS & CONDITIONS
All the terms and conditions for the store hereinafter referred to as the Sites.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY! PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS.
This Transaction Services Agreement (this “Agreement”) describes the terms and conditions on which you conclude online transactions for products and services by using the websites, mobile sites, mobile applications and other online transaction portals owned, operated, branded or made available by SkyCafe.co.za (defined below) from time to time which relate to the SkyCafe.co.za e-commerce platform including but not limited to the web and mobile-optimised versions of the websites identified by the uniform resource locator "www.skycafe.co.za" and the mobile applications of the SkyCafe.co.za e-commerce platform. This Agreement contains various limitations on SkyCafe.co.za’s transaction services offered through the Sites as well as gives various powers and authority to SkyCafe.co.za with respect to online transactions effected using SkyCafe.co.za’s transaction services offered through its Sites. This includes without limitation the power and authority to reject or cancel an online transaction, to refund the funds to a buyer or to release the funds to a seller. You should read this Agreement and, to the extent as applicable, the relevant Transactional Terms and other rules and policies of SkyCafe.co.za.
Application and Acceptance of Terms
1.1 Contracting Party. This Agreement is entered into between you (also referred to as “Member” hereinafter) and the SkyCafe.co.za contracting entity determined in accordance with this clause 1.1 (“SkyCafe.co.za” or “we”) for use of SkyCafe.co.za’s certain transaction services offered through the Sites as described hereunder.
1.2 Transactional Terms. SkyCafe.co.za provides an online transaction platform and ancillary services on the Sites (such platform and services, the “Transaction Services”) which allow registered members of the Sites to conclude online transactions for products or services within the Sites subject to the terms of this Agreement. SkyCafe.co.za may publish transaction rules, dispute rules and other rules and policies for any type of online transactions and any subsequent amendments or modifications (“Transactional Terms”) as may be made from time to time. Such Transactional Terms are expressly incorporated into this Agreement by reference and you agree to be bound by such rules and policies.
1.3 General Terms. You agree that you shall also comply with relevant rules and policies published on the Sites.
1.4 Amendments. SkyCafe.co.za may amend any terms of this Agreement including the Transactional Terms, the General Terms, and other related agreements at any time by posting the relevant amended and restated version on the Sites. The amended terms shall be effective immediately upon posting. We will endeavor to give you advance notice of material changes to this Agreement. By continuing to use the Transaction Services, you agree that the amended terms will apply to you. This Agreement may not otherwise be amended except in writing by an authorised officer of SkyCafe.co.za.
1.5 Language Version. If SkyCafe.co.za has posted or provided a translation of the English version of any terms of this Agreement, including the Transactional Terms, the General Terms and other related agreements, you agree that the translation is provided for convenience only and that the English language version will govern your use of the Transaction Services.
1.6 SkyCafe.co.za Affiliates. Some of the Transaction Services may be supported by our affiliates.
1.7 Additional Terms. In some cases, you may be required to additionally enter into a separate agreement with SkyCafe.co.za or our affiliates in connection with the Transaction Services (“Additional Terms”). If there is any contradiction between the provisions of this Agreement and the provisions of the Additional Terms, the Additional Terms shall govern the relevant types of Transaction Services or Online Transactions (defined below in clause 2.1), as appropriate.
1.8 Membership Services. This Agreement does not affect your agreement with us or any of our affiliates concerning your subscription and use of the membership services of the Sites, unless otherwise stipulated in this Agreement or the relevant service agreement.
2.1 Transaction Services. SkyCafe.co.za’s Transaction Services are designed to facilitate registered members of the Sites to place, accept, conclude, manage and fulfill orders for the provision of products and services online within the Sites (“Online Transactions”). SkyCafe.co.za reserves the right to change, upgrade, modify, limit or suspend the Transaction Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice without any liability for any losses or damages arising out of or in connection with such suspension or termination. SkyCafe.co.za further reserves the right but shall not be obliged to introduce new features, functionalities or applications to the Transaction Services or to future versions of the Transaction Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by SkyCafe.co.za.
2.2 Members Only. SkyCafe.co.za’s Transaction Services are only available to registered members of the Sites. If your subscription to the paid or free membership of the Sites expires or is terminated early for any reason, you are not eligible to use the Transaction Services. In the event that you have a valid Online Transaction under this Agreement at the point at which your paid or free membership registration on the Sites is terminated, SkyCafe.co.za shall have the full discretion and authority to refund to Buyer and/or release to Seller (both Buyer and Seller as defined below) all or part of the funds under the Online Transactions as SkyCafe.co.za considers appropriate in its sole discretion. If you are a Seller, you are required to provide a valid bank account subject to verification and confirmation by SkyCafe.co.za and our affiliates.
2.3 Types of Transactions. SkyCafe.co.za’s Transaction Services are available to those types of Online Transactions permitted by SkyCafe.co.za only. For any type of Online Transactions, SkyCafe.co.za may limit any or all of the Transaction Services to a specified group of members in accordance with the relevant Transactional Terms. The types of Online Transactions and other benefits, features and functions of the Transaction Services available to a registered member may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all members.
2.4 Lawful Items. The products or services of an Online Transaction using the Transaction Services must be lawful items and must not be otherwise prohibited or restricted by this clause 2.4. You shall not use the Transaction Services in connection with any Online Transaction that:
(a) may infringe SkyCafe.co.za’s or any third party’s legitimate or proprietary rights including but not limited to copyright, trademark right, patent or other intellectual property rights;
(b) may be in breach of the Product Listing Policy or the Intellectual Property Right (IPR) Protection Policy; or
(c) may be in breach of other terms of this Agreement including, but not limited to, the Transactional Terms and the General.
SkyCafe.co.za shall have the right to refuse or cancel any Online Transaction which it determines in its sole discretion to be in breach of this clause 2.4.
2.5 Refuse or Cancel Transactions. Apart from clause 2.4, SkyCafe.co.za reserves the right, at our sole discretion, to refuse or cancel any Online Transaction for any reason without any liability for any losses or damages arising out of or in connection with such refusal or cancellation. Some situations that may result in an Online Transaction being rejected or canceled include where problems are identified by our credit and fraud control department, where SkyCafe.co.za has reason to believe the Online Transaction is unauthorized, violates any law, rule or regulations or may otherwise subject SkyCafe.co.za or any of our affiliates to liability. SkyCafe.co.za may also require additional verifications or information for any Online Transaction, and you agree to provide such verifications and information to SkyCafe.co.za upon request.
2.6 Transactional Terms. For any type of Online Transactions, SkyCafe.co.za may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Transactional Terms.
2.7 Disputes between Buyers and Sellers. You agree that any Dispute arising between you and the other party to an Online Transaction will be handled in accordance with clause 10, and that SkyCafe.co.za shall have the full right and power to make a determination for such Dispute or to delegate or sub-contract such power to another party. Upon receipt of a Dispute, SkyCafe.co.za shall have the right to request either or both of Buyer and Seller to provide supporting documents. You agree that SkyCafe.co.za shall have the absolute discretion to reject or receive any supporting document. You also acknowledge that SkyCafe.co.za is not a judicial or arbitration institution and will make the determinations only as an ordinary non-professional person. Further, we do not warrant that the supporting documents that the parties to the Dispute submit will be true, complete or accurate. You agree not to hold SkyCafe.co.za and our affiliates liable for any material which is untrue or misleading. You agree to release and indemnify SkyCafe.co.za (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute.
2.8 Powers of SkyCafe.co.za. You expressly acknowledge and agree that SkyCafe.co.za shall have the full power, authority and discretion to reject or cancel an Online Transaction without any liability for any losses or damages arising out of or in connection with such refusal or cancellation and to make a determination on any dispute between buyer and seller including the remittance of the funds under an online transaction. You also acknowledge that this Agreement, and the relevant Transactional Terms may not cover all issues that may arise in connection with an Online Transaction. You agree and accept that SkyCafe.co.za shall have the right to modify or supplement the Transactional Terms at any time. You further agree and accept that SkyCafe.co.za shall have the right to make determinations wherever SkyCafe.co.za considers appropriate having regard to the evidence received by us, commonly accepted principles and practices in the relevant industries and interests of both Buyer and Seller regardless whether the issue in question has been expressly addressed in the Transactional Terms or this Agreement.
2.9 SkyCafe.co.za’s Records. In case of any dispute in connection with any Online Transaction, the records of SkyCafe.co.za shall take precedence and be conclusive.
2.10 Transactions involving a third party finance provider.
You agree that:
(a) SkyCafe.co.za does not guarantee any third party finance provider (the “Lender”) will provide financing to Buyer in connection with the Online Transaction and shall not be held liable to either Buyer or Seller in connection with any third party financing in connection with the Online Transaction;
(b) each of Buyer and Seller hereby authorizes SkyCafe.co.za to disclose information related to Buyer, Seller and/or the Online Transaction to the Lender in connection with the Lender’s provision of financing for the Online Transaction; and
(c) any dispute with the Lender in connection with the Online Transaction shall be resolved between the Lender and the Buyer. Notwithstanding the power given to SkyCafe.co.za under this Agreement, it is not SkyCafe.co.za’s obligation to resolve or assist in any way in the resolution of such dispute.
Transactions between Sellers and Buyers
3.1 Seller and Buyer. For the purpose of this Agreement, the term “Seller” means the registered member who supplies the product(s) or service(s) under an Online Transaction, and the term “Buyer” means the registered member who purchases or acquires the product(s) or service(s) under an Online Transaction.
3.2 Online Order. Seller and Buyer shall enter into an Online Transaction for products or services by completing, submitting and accepting an order online using the applicable standard order form on the Sites. Seller and Buyer yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant online order form, including but not limited to the pricing, quantity, specifications, quality standards, inspection, shipping etc., save that:
For all transactions concluded on www.SkyCafe.co.za, mobile site, applications or mobile-optimized applications, the Buyer shall be the importer on record for customs and taxation purposes, unless otherwise agreed upon between the Buyer and Seller.
SkyCafe.co.za may refuse to process or cancel, without liability for any losses or damages arising out of or in connection with such refusal or cancellation, any Online Transaction which in SkyCafe.co.za’s reasonable opinion, has insufficient information to constitute a binding contract.
3.3 Online Transactions Subject to This Agreement. An Online Transaction is additionally subject to the applicable terms and conditions set forth in this Agreement and the Transactional Terms. Seller and Buyer shall complete the Online Transaction according to the terms of the online order, the relevant Transactional Terms and this Agreement. Seller or Buyer may only cancel any Online Transaction in accordance with the relevant Transactional Terms.
3.4 Transaction between Seller and Buyer Only. Each Online Transaction is made by and between a Seller and a Buyer only. Despite that SkyCafe.co.za makes available the Transaction Services and, if applicable, may conduct formality review(s) of an Online Transaction, SkyCafe.co.za shall not be considered as a party to the Online Transaction. SkyCafe.co.za does not represent the Seller nor the Buyer in any Online Transaction. SkyCafe.co.za will not be responsible for the quality, safety, lawfulness or availability of the products or services offered under any Online Transaction or the ability of either Seller or Buyer to complete any Online Transaction. You agree that you will not hold SkyCafe.co.za and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Online Transactions, including any breach, partial performance or non-performance of the Online Transaction by the other party to the transaction.
3.5 Payment of Contract Price. For any Online Transaction, Buyer agrees to pay the full transaction price listed for Online Transaction to the Seller through the services provided by SkyCafe.co.za unless another option is made available directly by SkyCafe.co.za on the Sites. Seller agrees that the Buyer’s full payment of the transaction price listed for the Online Transaction constitutes final payment to Seller and Buyer’s payment obligation for the Online Transaction is fully satisfied upon receipt of funds by SkyCafe.co.za’s account.
3.6 Payment Methods. Please note that the payment methods available on the Sites may be provided by SkyCafe.co.za’s partners. If there is any chargeback or reversal of any payment requested by a payment service partner, Seller agrees that SkyCafe.co.za has the right to refund the money so requested by the payment service partner without liability to Seller. SkyCafe.co.za will use reasonable efforts to assist you in participating in the dispute resolution process of the relevant payment service partners. However, if the participation in the dispute resolution process is subject to additional fees, this will be at your own cost only.
3.8 Your Agent. If you are required to conclude and complete an Online Transaction through an agent e.g. a Seller may be required to engage a qualified import and export agent as its export agent, such agent is merely an agent of you. If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Transaction for the non-performance or default by your agent.
SkyCafe.co.za Service Fees
4.1 Service Fees. SkyCafe.co.za charges service fees for Online Transactions according to the fee schedules announced by SkyCafe.co.za on the Sites. SkyCafe.co.za reserves the right to charge any service fees for other types of Online Transactions upon prior notification published on the Sites. Neither SkyCafe.co.za nor its affiliates has any control over, and are not responsible or liable for, the products or services that are paid for with our service. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction.
4.2 Third Party Fees Not Included. The service fees charged by SkyCafe.co.za do not include any fees (including all taxes) for any service or product that you may acquire or purchase in connection with the Online Transaction. It shall be your responsibility to settle the fees with such third party vendors.
4.3 Taxes, Financial Charges Not Included. All fees charged by SkyCafe.co.za are exclusive of any taxes (such as VAT), duties or other governmental levies or any financial charges. You agree to pay and be responsible for any such taxes, duties, levies or charges for the use of the Transaction Services in addition to our service fees. In the event SkyCafe.co.za is required by any applicable law to collect or withhold any taxes or duties, you agree to pay such taxes or duties to SkyCafe.co.za. You will also be liable for any financial charges for remission of funds to you, and SkyCafe.co.za shall have the right to pay such charges from such funds. SkyCafe.co.za and its affiliates shall have the right to deduct any financial charges incurred as a result of providing the Transaction Services and the party receiving the funds will bear the costs of such bank charges.
5.1 Provision of Information and Assistance. You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the completion of the Online Transactions and SkyCafe.co.za’s provision of the Transaction Services. If your failure to do so results in delay in the provision of any Transaction Service, cancellation of any Online Transaction, or disposal of any funds, SkyCafe.co.za shall not be liable for any losses or damages arising from such default, delay, cancellation or disposal.
5.2 Representations and Warranties. You represent and warrant that:
(a) you will use the Transaction Services in good faith and in compliance with all applicable laws and regulations，including laws related to anti-money laundering and counter-terrorism financing;
(b) all information and material you provide in connection with the use of the Transaction Services is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Transaction Services to defraud SkyCafe.co.za, our affiliates, or other members or users of the Sites or engage in other unlawful activities (including without limitation dealing in products prohibited by law); and
(d) in case that you are a Seller of products, you have the legitimate right and authorisation to sell, distribute or export the products using the Transaction Services and such products do not infringe any third party’s rights; and
(e) in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and
(f) in case that you are a Seller of services, you will provide the services ordered with reasonable care and skills.
5.3 Breaches. If you are, in SkyCafe.co.za’s opinion, not acting in good faith, abusing the Transaction Services, or otherwise acting in breach of this Agreement, SkyCafe.co.za shall have the right to cancel the relevant Online Transaction(s) at any time without any liability for any losses or damages arising out of or in connection with such cancellation. SkyCafe.co.za also reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Transaction Services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Sites. SkyCafe.co.za also reserves the right to (i) temporarily suspend the transaction functionalities of your account with SkyCafe.co.za for a prescribed period determined by SkyCafe.co.za, or permanently terminate the use of your SkyCafe.co.za account without any liability for any losses or damages arising out of or in connection with such suspension or termination. SkyCafe.co.za may also publish the findings, penalties and other records regarding the breaches on the Sites.
5.4 Obligations to Pay Taxes. You shall be solely responsible for payment of any taxes (such as VAT), duties or other governmental levies or any charges or fees that may be imposed on any products or services purchased or supplied under or in connection with the Online Transactions.
5.5 Feedback System. You shall not take any action which may undermine the integrity of SkyCafe.co.za’s feedback system, such as providing positive feedback on oneself on the Sites using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another member on the Sites.
5.6 Indemnification by Member. You agree to indemnify SkyCafe.co.za and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Transaction Services or from your breach of this Agreement. SkyCafe.co.za reserves the right, at our own discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with SkyCafe.co.za in asserting any available defenses.
6.1 Confidential Obligations. You shall keep confidential all confidential information provided by other members of the Sites or by SkyCafe.co.za or any of its affiliates in connection with any Online Transaction or the Transaction Services.
6.2 Confidential Information. All information and material provided by another member of the Sites or by SkyCafe.co.za or any of its affiliates will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.
6.4 Data Protection and Privacy Role of Sellers. Sellers acknowledge that they have their own data protection and privacy compliance responsibilities with respect to personal information of Buyers or other individuals that the Seller processes. Sellers represent and warrant, and undertake to SkyCafe.co.za to ensure, that in relation to such personal information they are and will be fully compliant with all applicable data protection and privacy laws, including without limitation maintaining their own records of such personal information independently of the platform (to the extent required under applicable laws), complying with direct marketing laws, and responding to requests by individuals to exercise their rights under such laws. Neither SkyCafe.co.za nor any of its affiliates is responsible or liable for a Seller's fulfilment of their obligations under applicable data protection and privacy laws. For the avoidance of doubt, in relation to such personal information the liability and obligations of SkyCafe.co.za and its affiliates under applicable data protection and privacy laws are entirely independent of and separate from the liability and obligations of Sellers under such laws. SkyCafe.co.za shall have no liability to any Sellers for the compliance, by SkyCafe.co.za or its affiliates, with its or their own obligations under applicable data protection or privacy laws, including without limitation in relation to the exercise by Buyers or other individuals of their rights regarding their personal information processed in connection with any services and products provided by SkyCafe.co.za.
Disclaimer and Limitation of Liability
7.1 No Warranty. You expressly agree that your use of the Transaction Services is at your sole risk. TO THE FULL EXTENT PERMITTED BY LAW THE TRANSACTION SERVICES ARE PROVIDED ON THE "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS” BASES, AND SKYCAFE.CO.ZA MAKES NO REPRESENTATION OR WARRANTY THAT THE TRANSACTION SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. SKYCAFE.CO.ZA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION PROVIDED BY ANY MEMBER OF THE SKYCAFE.CO.ZA SITES. YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION. SKYCAFE.CO.ZA AND OUR AFFILIATES FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY DISCLAIMED AND EXCLUDED.
7.2 Exclusion and Limitation of Liabilities. TO THE FULL EXTENT PERMITTED BY LAW, SKYCAFE.CO.ZA SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES. THE AGGREGATE LIABILITY OF SKYCAFE.CO.ZA AND OUR AFFILIATES AND AGENTS INCLUDING BUT NOT LIMITED TO PAYFAST ARISING FROM THE TRANSACTION SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE HIGHER OF THE SERVICE FEES CHARGED BY SKYCAFE.CO.ZA OR R1,000 ZAR.
7.3 SOME OR ALL OF THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE OR COUNTRY DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS UNDER YOUR LOCAL LAW IN YOUR STATE, PROVINCE OR COUNTRY THAT VARY FROM STATE TO STATE. NOTHING IN THIS AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS IF THEY ARE APPLICABLE TO YOU.
8.1 Force Majeure. Under no circumstances shall SkyCafe.co.za and our affiliates and agents be held liable for any delay or failure or disruption of the Transaction Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labor or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9.1 Notices. Except as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on the Sites. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing. Except as explicitly stated otherwise, legal notices shall be served on SkyCafe.co.za.
Governing Law; Jurisdiction
10.1 THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF SOUTH AFRICA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES. YOU AGREE THAT ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED ONLY IN THE COURTS LOCATED IN SOUTH AFRICA AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF CAPE TOWN WITH RESPECT TO ALL MATTERS RELATING TO THIS AGREEMENT OR FOR THE PURPOSES OF LITIGATING ANY SUCH DISPUTE OR CLAIM.
10.2 Amicable Negotiations. If any dispute or claim arises from or in connection with this Agreement, an Online Transaction or your access to or use of the Transaction Services (“Dispute”), the relevant parties shall resolve the Dispute through amicable negotiations.
10.3 DISPUTE BETWEEN BUYER AND SELLER. IN CASE A DISPUTE ARISES BETWEEN BUYER AND SELLER , IF THE DISPUTE IS NOT RESOLVED THROUGH AMICABLE NEGOTIATION WITHIN THE PRESCRIBED TIME PERIOD ACCORDING TO THE RELEVANT TRANSACTIONAL TERMS, YOU AGREE TO SUBMIT THE DISPUTE TO SKYCAFE.CO.ZA FOR DETERMINATION. IF YOU ARE DISSATISFIED WITH SKYCAFE.CO.ZA’S DETERMINATION AND EXCEPT AS OTHERWISE STIPULATED UNDER APPLICABLE LAW, YOU MUST APPLY TO THE ARBITRATION FOUNDATION OF SOUTH AFRICA (AFSA) FOR ARBITRATION AND NOTIFY SKYCAFE.CO.ZA OF SUCH APPLICATION WITHIN 7 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF SKYCAFE.CO.ZA’S DETERMINATION. IF EACH OF BUYER AND SELLER IN THE DISPUTE DOES NOT APPLY FOR ARBITRATION WITHIN THE ABOVE 7 CALENDAR DAYS, EACH OF THE BUYER AND THE SELLER SHALL BE DEEMED TO HAVE AGREED THAT SKYCAFE.CO.ZA’S DETERMINATION SHALL BE FINAL AND BINDING ON YOU. FURTHER, EACH OF BUYER AND SELLER SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM AGAINST SKYCAFE.CO.ZA, AND OUR AFFILIATES AND AGENTS.
10.4 Disputes between you and SkyCafe.co.za. In case a Dispute arises between you and SkyCafe.co.za, if the Dispute is not resolved between you and SkyCafe.co.za by amicable negotiations and except as otherwise stipulated under applicable law, you and SkyCafe.co.za agree that the Dispute shall be finally resolved by arbitration with AFSA.
10.5 AFSA ARBITRATION. IF ANY DISPUTE IS SUBMITTED TO AFSA FOR ARBITRATION, THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF AFSA IN FORCE AT THE TIME OF APPLYING FOR ARBITRATION AS AMENDED BY THIS CLAUSE. THE ARBITRATION PANEL SHALL CONSIST OF ONE SINGLE ARBITRATOR. UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATION SHALL BE CONDUCTED IN ENGLISH AND IN THE REPUBLIC OF SOUTH AFRICA. THE ARBITRATION SHALL BE CONDUCTED BY TELEPHONE, ONLINE AND/OR SOLELY BASED ON WRITTEN SUBMISSIONS AS SPECIFIED BY THE PARTY INITIATING THE ARBITRATION, PROVIDED THAT THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE AGREED BY THE PARTIES. THE ARBITRATION AWARD RENDERED BY AFSA SHALL BE FINAL AND BINDING ON ALL THE RELEVANT PARTIES. THE ARBITRATION EXPENSES SHALL BE BORNE BY THE LOSING PARTY UNLESS OTHERWISE DETERMINED IN THE AWARD.
10.6 Indemnification. If you initiate any legal proceedings against SkyCafe.co.za or our affiliates in breach of this clause 10, including any legal proceedings disputing SkyCafe.co.za’s determination which has become binding on you according to this clause 10, you shall hold SkyCafe.co.za and our affiliates, agents, employees, directors, officers harmless and indemnified against any claim, losses, damages that may be suffered by us.
10.7 Limitation Period. In any event, you may not make any claim against SkyCafe.co.za or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.
10.8 Injunctive Relief. Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.
11.1 Entire Agreement. This Agreement constitutes the entire agreement between you and SkyCafe.co.za with respect to and governs the use of the Transaction Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
11.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
11.3 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
11.4 Independent Contractor. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
11.5 No Waiver. Any failure by SkyCafe.co.za and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
11.6 Assignment. SkyCafe.co.za shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. SkyCafe.co.za may delegate certain of SkyCafe.co.za rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.