Customer Relationship Terms
(general terms relating to the use of this website and the provision of goods)
Version number: 1.0
These Terms are the general terms of the relationship between Vendor and Customer. These Terms cover the use of this website, including any other marketing material of Vendor. By visiting and using this website, each Customer accepts and agrees to these Terms. These Terms also cover any transactions (including any transaction carried out electronically using a computer or network, or in person) where Vendor provides to Customer who receives Goods. The commercial terms of any transaction between Vendor and Customer will be contained in an Order that will incorporate these Terms. The Order will prevail if there is a conflict of meaning. Nothing in these Terms obligates either party to enter into any Orders.
DEFINITIONS AND INTERPRETATION
Definitions. For purposes of the Agreement:
"Affiliate" means any parent company, subsidiaries, joint ventures, or other companies under a common control;
"Agreement" means the agreement between Vendor and Customer, consisting of these Terms and any Orders the parties enter into;
"Customer" or "you" means any person who visits this website or concludes an Order;
"ECT Act" means the Electronic Communications and Transactions Act 25 of 2002;
"Effective Date" means in respect of each Order, the effective date stipulated in each Order, in the absence of which it will be the date the Order is accepted by Vendor;
"EULA" means an end user license agreement;
"Fees" means the fees, charges, or purchase consideration that Customer will pay to Vendor in respect of Goods and Services provided by Vendor under Orders;
"Goods" means Xbox LIVE points and subscriptions to be used on Microsoft’s Xbox LIVE platform provided by Vendor to Customer;
"Order" means a goods order agreed to and signed by both the parties describing the specific Goods to be provided by Vendor to Customer. An order is represented by the checkout process where customer fills in their payment options and delivery email address;
"Services" means any services Vendor provides to Customer, under Orders;
"Service Levels" means the levels according to which Vendor will provide each Service as agreed by the parties;
"Sign" means the handwritten signature or advanced electronic signature of the duly authorised representative of a party;
"Signature Date" means the date of signature by the party signing last;
"Terms" means these terms, consisting of:
these customer relationship terms; and
any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, (including any that may be applicable to a specific section or module of this website or any specific Goods);
"Vendor" means the vendor identified on this website; and
"Writing" means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form (like PDF), but excludes information or data in the form of email.
Definitions in the Order. Words defined (or assigned a meaning) in the Order will have that meaning in these Terms, unless the context clearly indicates otherwise.
Interpretation. A word defined or assigned a meaning in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever "including" or "include", or "excluding" or "exclude", together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time. A reference to a person includes a natural and juristic person and a reference to either party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
Conflict. If there is a conflict of meaning between these customer relationship terms and any other relevant specific terms, policies, disclaimers, rules and notices agreed between the parties, the specific terms will prevail in respect of your use of the relevant section or module of the website or Goods.
These Terms commence on acceptance and continue until terminated.
USE OF THIS WEBSITE
License to use this website. Vendor grants each Customer a limited, revocable license to use this website subject to the Agreement. Any person wishing to use this website contrary to the Agreement must obtain Vendor’s prior written consent.
Framing. No person, business, or website may frame this website or any of the pages on this website.
Linking. Customer may link to the website only by linking to the home page of this website. Vendor prohibits Customer from "deep linking" to any other pages in a manner that would incorrectly suggest endorsement or support of Customer by Vendor or suggests Customer is the owner of any intellectual property belonging to Vendor.
Spiders and Crawlers. No person, business, or website may use any technology (including spiders or crawlers) to search and gain any information from this website.
Vendor may modify, suspend, or discontinue providing this website or any Goods (with or without notice) and will not be liable.
Passwords and Security. Only a registered Customer can make offers. Each Customer is responsible for keeping their password secure. Each Customer is solely responsible and liable for activities that occur under their account. Customer authorises Vendor to act on any instruction given under Customer’s account, even if it transpires that someone else has defrauded both Vendor and Customer, unless Customer has notified Vendor prior to Vendor acting on a fraudulent instruction.
Customers. Customer accounts registered by bots or other automated methods are not permitted. Each Customer must provide their full legal name, a valid email address, a valid billing address, and any other information requested in order to complete the registration process. One person may only use each Customer’s login - Vendor does not permit multiple people to share a login.
Deactivation or deletion by Customer. A Customer may deactivate or delete Customer’s account, for any reason.
Offer and Acceptance. Customer places an offer to purchase Goods when they select a payment option. Vendor accepts the offer once they have delivered the Goods.
Time and place. The parties conclude any agreement between them at the time when Customer places the order and at the place where Vendor has its head office.
Orders. The Terms in effect at the time Customer places a order will govern the Order. Each Order will create a separate agreement. .
CAPACITY OF CUSTOMER
Each Customer represents and warrants that Customer (and any person who places an Order):
is old enough under applicable law to enter into the Agreement;
is legally capable of concluding any transaction;
possesses the legal right, full power, and authority to enter into the Agreement;
is authorised to use the password required for any account; and
will submit true, accurate and correct information to Vendor and this website.
If Customer is younger than 18 years of age, Customer warrants that Customer has the consent of its legal guardian to enter into the Agreement or that Customer has obtained legal status in another manner.
Sale. Vendor sells to Customer who purchases the Goods on the terms of the Agreement.
Countries. Goods are suitable for use only in certain countries. Customer must ensure that they purchase the correct Good for the country where they have their Xbox LIVE Account. Vendor will not be held responsible if Customer purchases Goods for the wrong country, although we will endeavour to assist you in correcting the mistake.
Shipping. Goods will be made available through a website link sent to the Customer's provided email account.
Time until Delivery. Goods will be made available as soon as payment is received and should be accessible through a website link delivered to the Customer's email inbox within a matter of minutes. However, Vendor will not be liable if delivery is delayed due to unforeseen circumstances beyond our control. Vendor will endeavour to notify Customers of expected problems with delivery as soon as Vendor is aware of them.
FEES AND PAYMENT
Due Dates. Payments must be made promptly on the Due Date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.
Manner of payment. Customer must make payment in the manner specified in the Order.
Withhold payment. Customer may not withhold payment of any amount due to Vendor for any reason except when the Vendor has failed to perform.
Certificate. A certificate, signed by an accountant appointed by Vendor, of the amount due by Customer and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.
Tax. All fees include any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by Customer in addition to the fees.
Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.
Payment profile. Customer and any signatory consent and agree that Vendor may provide any registered credit bureau with information about the payment of amounts.
Ownership. Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of this website are the sole property of or will vest in Vendor or a third party licensor. All moral rights are reserved.
Trademarks. Vendor’s logo and sub-logos, marks, and trade names are the trademarks of Vendor and no person may use them without permission. Any other trademark or trade name that may appear on this website or other marketing material of Vendor is the property of its respective owner.
Restrictions. Except as expressly permitted under the Agreement, this website may not be:
modified, distributed, or used to make derivative works;
rented, leased, loaned, sold or assigned;
decompiled, reverse engineered, or copied; or
reproduced, transferred, or distributed.
Prosecution. All violations of proprietary rights or the Agreement will be prosecuted to the fullest extent permissible under applicable law.
DISCLAIMER OF WARRANTIES
Disclaimer. Vendor does not warrant that this website will meet the requirements of any Customer or be uninterrupted, be legally effective or complete, timely, secure, error-free or free from infection by malicious software. Each Customer should keep up-to-date security software on the systems used to access this website.
LIMITATION OF LIABILITY
Correct faults. Vendor will correct any fault in this website where possible and as soon as reasonably practical and this is its entire liability regarding any fault in the website. If this clause is held inapplicable or unenforceable, then the following clause will apply.
Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, Vendor’s maximum liability to a Customer for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by the Customer to Vendor for the Goods related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
Indirect damages excluded. To the extent permitted by applicable law, in no event will Vendor (or its personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.
Other website, goods. Vendor is not liable for any other website, goods, or service provided by any third party.
Discontinue this website, the goods. The Agreement will automatically terminate if Vendor discontinues this website, Goods.
Breach. If a Customer:
commits a breach of the Agreement;
repeatedly infringes the copyrights or other rights of others;
fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
effects or attempts to effect a compromise or composition with its creditors; or
is provisionally or finally liquidated or placed under judicial management;
Customer agrees that Vendor may, to the extent permitted by applicable law and without prejudice to its rights in the Agreement or in law, deactivate or delete the Customer’s account, terminate access to or use of the website, claim specific performance of the Agreement, or cancel the Agreement immediately on written notice and claim damages from Customer (including, any claim for any Fees already due).
Effects of termination. On the deactivation or deletion of a Customer’s account, the Agreement will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry of any Order, all amounts due to Vendor for Goods ordered prior to termination will become due and payable even if Vendor has not invoiced them. Customer may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry of an Order will not affect the enforceability of the terms that are intended to operate after expiry or termination.
Forum. Any claims by Vendor against a Customer for injunctive or equitable relief or regarding intellectual property rights may be brought in any competent court without the posting of a bond. The parties will, in the first instance, refer any other dispute arising between Vendor and a Customer to the Customer Relationship Department of Vendor, which will use its best endeavours to resolve the dispute.
Collection proceedings. Vendor retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.
NOTICES AND DOMICILE
Notices. All notices, authorisations, disclosures, acknowledgements, and requests must be sent by hand, prepaid registered post, courier, facsimile, or electronic mail to the addresses and numbers provided on this website. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.
Domicile. Each party chooses its addresses and numbers provided on this website as its domicilium citandi et executandi (its domicile for being served summons and execution levied) for all purposes.
Change of addresses and numbers. Each party may change the addresses and numbers provided on this website.
Deemed Delivery. Notice will be deemed delivered on the date shown on the by hand, prepaid registered post, courier, facsimile or electronic mail confirmation of delivery.
Notice actually received. If a notice is actually received by a party, adequate notice will have been given.
CIRCUMSTANCES BEYOND CONTROL
No party will be responsible for any breach of the Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, the Internet, any telecommunications systems, or any computer hardware or software.
CESSION AND ASSIGNMENT
No Customer may delegate its duties under the Agreement or assign its rights under the Agreement, in whole or in part. Vendor may assign the Agreement to any successor or purchaser of its business or some of its assets.
Entire Agreement. The Agreement constitutes the entire agreement between the parties in respect of the subject matter of the Agreement.
Changes. The Agreement may be changed at any time by Vendor and where this affects the rights and obligations of a Customer, Vendor will notify the Customer of any changes by placing a notice in a prominent place on this website (or by email). If a Customer does not agree with the change the Customer should stop using this website. If a Customer continues to use this website following notification of a change to the Agreement, the changed terms will apply to the Customer.
Fact related to website. A certificate, signed by an administrator of this website, of any fact related to this website (including the version of the Terms that governs a particular Order or dispute and what content was published or functionality was available on the website at a specific point in time) will be conclusive irrefutable proof of the correctness of the certificate’s contents.
Waiver. No granting of time or forbearance will be, or be deemed to be, a waiver of the Agreement and no waiver of any breach will operate as a waiver of any continuing or subsequent breach.
Severability. If any term is void, unenforceable, or illegal, the term will be severed and the remainder of the Agreement will have full force and effect, provided the severance does not alter the nature of the Agreement.
Governing Law and jurisdiction. The Agreement is governed by and must be interpreted under the laws of the Republic of South Africa and Customer agrees to submit to the exclusive jurisdiction of the South African courts.
Right to reference. Each Customer consents to Vendor using its name in any marketing or sales material.
Copyright 2007-2010 Lematics (Pty) Ltd. All rights reserved. An on-demand legal solution provided by Michalsons (www.Michalsons.com)
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