This Agreement was last revised April, 2014.
Website Terms and Conditions of Use Relating to www.wishforit.co.za
These Terms and Conditions ("the Terms and Conditions") govern (i) your ("the User") use of the Wish for It Pty (Ltd)'s ("Provider") website located at the domain name www.wishforit.co.za (the "Website"); and (ii) the payment services to be provided by the Provider to the User. The User agrees to be bound by the Terms and Conditions in accordance with the process set out on the Website.
1. Electronic Communications
1.1 By communicating with the Provider by electronic means or via the Website, the User consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be in writing.
1.2 All communications to the Provider shall be made by email to the following email address email@example.com or such other email address as the Provider may specify. The Provider shall be entitled to communicate with the User by any means. Communications shall only be considered as received when actually received in legible form by either party.
2. The Services
The Provider shall, via the Website, provide a crowd funding gift service (the "Service") online to the User. The Provider shall make available the Service for the purpose of persons contributing money by way of gift only towards any event (of a nature satisfactory to the Provider) specified by the User (the "Event").
3. Wish lists
3.1 As prompted on the Website, the User will create a wish list for the Event, listing the gifts in connection with which third persons (each, a "Payor") shall contribute money. By sharing the unique URL assigned to the User's wish list, a Payor can view and contribute towards any gift on that list. The User's URL can be shared, inter-alia, via email or by social media outlets (e.g. by uploading it to Facebook or twitter feeds).
3.2 The User can remove any gift listed on the User's wish list provided that no person has made a payment towards that gift via the Website. Once a payment has been made towards a gift, that gift may not be deleted.
3.3 The Provider may edit the User's wish list at any time if the Provider considers, in its sole and absolute discretion, that any gift, matter or thing listed or mentioned on that list may i) cause harm to the Provider's business, goodwill or reputation, ii) be contrary to public policy, or iii) be contrary to any law of the Republic of South Africa. The Provider shall have no obligation to provide reasons for the making of any such edits, to which the User hereby consents.
4.1 There is no cost to create an account and wish list on the Website.
4.2 For each Event, the User shall pay to the Provider an administration charge of 5% (five per cent) of the total amount of funds collected for the User by the Provider in connection with that Event.
4.3 The aforementioned charge is inclusive of VAT and payable promptly on demand by the Provider to the User on the sooner of the cessation, termination or cancellation (as applicable) of the Event. On or around the same time as remitting any amounts payable to the User, the Provider may set-off any amounts owing to it by the User in respect of the Services (including, without limitation, any charges payable in accordance with this paragraph) in accordance with the terms set forth herein. An invoice or closing statement will be sent by the Provider to the User indicating the amounts collected in respect of the Event, the charges payable to the Provider and the amount of the net balance paid, or to be paid, to the User.
4.4 The Provider may elect to charge default interest on any late payments owed to it by the User at the then prevailing per annum prime rate (as quoted by The Standard Bank of South Africa Limited).
5.1 A single Payor shall be able to contribute an amount of up to R24 999.00 in respect of any such Event. Each Payor shall be solely responsible for any statutory charges accruing on such contributions (including, without limitation, any donations tax).
5.2 Funds deposited by Payors shall be received by the Provider on behalf of the User into a bank account (the "Account") in the name of the Provider (such bank account shall be a general mixed bank account and shall receive payments for multiple users, and multiple events including the Event). The User hereby expressly acknowledges and accepts that it shall have no claim to any interest accruing on the amounts held in and to the Account or any moneys standing to the credit thereof (by way of trust or otherwise).
5.3 All payments to be made into the Account for the User shall be made by Payors via the Website, which payments shall be processed by the MyGate Internet Payment Gateway. The User and/or Payor may go to www.mygate.co.za to view MyGate's security and other policies. Payments into the Account may only be made in accordance with the payment mechanisms and protocols provided by the MyGate Internet Payment Gateway.
5.4 Only payments made via the MyGate Internet Payment Gateway shall be processed. Payments made into the Account for the user in a currency other than Rand shall be converted into Rand at the Provider's commercial bank's then current market rate of exchange. Payments from abroad and/or in a currency other than Rand shall be processed in accordance with the MyGate Internet Payment Gateway's policies and procedures.
5.5 All payments from the Provider to the User shall be made in Rands and by electronic transfer to a bank account in the name of the User specified for this purpose (the User shall provide its bank account details for remittances to the Provider as part of the sign up process or promptly on request of the Provider (failure to provide accurate bank account details may result in delayed payments to the User and the Provider is not responsible for any loss occasioned to the User as a result of the provision of inaccurate bank account details)).
5.6 The User will be notified via email every time a Payor contributes to a gift listed on its wish list. Payments received for the User can be tracked on the Website. The identity of persons which contribute towards the User's wish list will be viewable only to the User, and will not be publically viewable.
5.7 Subject to the User first having complied with the paragraph headed "Provision of Information" below, any payments made into the Account for the User shall be remitted to the User within fifteen Business Days (which for the purposes of these Terms and Conditions means a day on which commercial banks are generally open for business in South Africa) after the cessation of the Event or the cancellation/termination of the Services. The making of payments to the User by the Provider at any other time shall be at the sole discretion of the Provider.
5.8 The User will be paid all of the funds collected by the Provider towards its gifts listed on its wish list, less any amounts owed by the User to the Provider on account of charges or otherwise.
5.9 The User shall be responsible for all statutory charges accruing on such payments (including, without limitation, any tax accruing on the payments).
5.10 Payments will be processed until such time as the Services are terminated in accordance with the paragraph headed "Duration and termination of provision of Services" below.
5.11 The Provider makes no representation or warranty as to the MyGate Internet Payment Gateway, and may suspend or terminate the Services as a result of, inter-alia, any operational issues emanating from the MyGate Internet Payment Gateway.
5.12 Any interest earned on funds standing to the credit of the Account from time to time shall be for the sole account of the Provider.
Notwithstanding any other provision herein, the Provider may set-off from any amount owed by the User (on account of fees, charges or otherwise) to the Provider against any amount owed by the Provider to the User (including any payments to be made pursuant to the provision of the Services).
7. Duration and termination of provision of Services
7.1 The Provider shall provide the Services from the date of acceptance of these Terms and Conditions by the User (or from such other time as the Provider may specify) until the date falling ten Business Days following the cessation of the Event, save that the Provider may terminate the Services immediately if at any time the User in in breach of these Terms and Conditions or if through no fault of its own it is not possible for the Provider to provide the Services as contemplated herein.
7.2 Notwithstanding any other provision hereto, either party may terminate the Services at any time on five Business Days' notice, and the Provider shall remit any funds owed to the User as soon as reasonably practicable after receiving any such notice.
7.3 Any rights and obligations of the parties which accrued prior to the termination of the Services shall survive such termination, save that if any funds are paid into the Account for the Event following such termination of the Services the Provider may at its discretion process such payments in accordance with these Terms and Conditions and charge its fees for attending to the same.
8.1 If the Event is cancelled for whatever reason and the Provider has collected funds for the User in connection with such Event, the Provider will, within fifteen Business Days of the date of cancellation, pay the User the money so collected up until the point of such cancellation less an amounts owed by the User to the Provider at such time. No refunds shall be paid to any Payor under any circumstances. Should the User wish to do so, it shall make provision for the reimbursement of any Payor itself.
8.2 Any rights and obligations of the parties which accrued prior to the cancellation of the Services shall survive such cancellation, save that if any funds are paid into the Account for the Event following such cancellation of the Services the Provider may at its discretion process such payments in accordance with these Terms and Conditions and charge its fees for attending to the same.
8.3 For the avoidance of doubt, the User may charge the Provider any fees or charges in connection with Services provided for any cancelled Event and regardless of the reason for the cancellation of such Event.
9. Representations and warranties by User
9.1 The User represents and warrants that (i) any funds paid to the User via the Website are by way of gift only, and the User is not using the Website for any commercial or business purposes; and (ii) all information provided to the Provider is true, accurate and not misleading.
9.2 The User further represents and warrants that no payment made to the User via the Website from any Payor is in aid or facilitation of any unlawful activity (including, without limitation, money laundering).
10. Exclusion of fiduciary duties
To the maximum extent permitted by applicable law, all fiduciary duties owed by the Provider to the User and/or any Payor are hereby excluded.
11. E-Commerce & Privacy
11.1 The use of the Service is at the User's risk. The User indemnifies and holds the Provider harmless against any loss, injury or damages which may be sustained by it or any other person (including Payors contributing to the User's Event) as a result of using the Services.
11.2 Any private information uploaded through the Website, namely the User's personal information and credit card details, delivery address and telephone numbers will, if controlled by the Provider, be kept in the strictest confidence by the Provider and not sold or made known to third parties (other than pursuant to any legislative or otherwise legal obligation). Credit card details are not kept by the Provider under any circumstances.
11.3 The Provider cannot be held responsible for security breaches occurring on the User's electronic device (personal computer or other electronic device used to browse the Website), which may result due to the lack of adequate virus protection software or spyware that the User may inadvertently have installed on his/her device.
11.4 Although the MyGate Internet Payment Gateway conforms to internationally accepted levels of security, the Provider shall not be held liable for any damage caused to or in respect of the User and/or a Payor's use of the MyGate Internet Payment Gateway. The User hereby agrees to indemnify and hold the Provider harmless for any damage caused (whether to the Provider, the User or the Payor) as a result of the use of the MyGate Internet Payment Gateway in connection with the Website and the Services
12. No selling or endorsement of any products or gifts
12.1 The Provider makes no representation or warranty as to any product, gift or thing listed on the User's wish list. The Provider is not selling nor endorses any goods, gifts or things listed on the User's List. The value attributed to any goods, gift or things on the wish list is not verified by the Provider.
12.2 For the avoidance of doubt, and for the purposes of the Consumer Protection Act 68 of 2008, the User hereby accepts and agrees that the Provider is not an importer, a producer, an intermediary, a supplier, a manufacturer, a service provider or a retailer of goods.
13. Provision of information
13.1 The User shall promptly provide the Provider with any information required for the carrying out of know-your customer checks, including any information as may be required by the Provider pursuant to the Financial Intelligence Centre Act 38 of 2001 (FICA). Payments to the User may be withheld to the extent any such information has not been provided.
13.2 The User expressly acknowledges that the Provider may have certain reporting and/or other legislative obligations arising out of and in terms of FICA. Should such reporting or legislative responsibility arise, the User hereby consents to the Provider providing its information, and/or information relating to Payors, to the Financial Intelligence Centre.
14. Refunds and complaints
14.1 The Provider cannot process or pay to any Payor any refunds once that payment has been processed. If any Payor wishes to retract their payment towards a gift, such person will need to work that out directly with the User. The Provider has no obligation under any circumstances to communicate with any Payor which has made (or intends to make) a payment towards a gift listed on the User's wish list.
14.2 Any complaints regarding the standard and quality of the Services should be directed to the Marketing Manager, [firstname.lastname@example.org].
15. Updating of these Terms and Conditions
The Provider reserves the rights to change, modify, add or remove from portions or the whole of these Terms and Conditions from time to time. Changes to these Terms and Conditions will become effective upon such changes being posted to the Website. It is the User's obligation to periodically check these Terms and Conditions on the Website for changes or updates. The User's continued use of this Website following the posting of changes or updates will be considered notice of the User's acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.
16. Copyright and Intellectual Property Rights
16.1 The Provider provides certain information on the Website. Content currently or anticipated to be displayed on this Website is provided by the Provider or any other third party owners of such content, and includes but is not limited to Literary Works, Musical Works, Artistic Works, Sound Recordings, Cinematograph Films, Sound and Television Broadcasts, Program-Carrying Signals, Published Editions and Computer Programs ("the Content").
16.2 All such proprietary works, and the compilation of the proprietary works, are copyright of the Provider or any other third party owner of such rights ("the Owners"), and is protected by South African and international copyright laws. The Providers reserve the right to make any changes to the Website, the content, or to the Services at any times and without notice. All rights in and to the content is reserved and retained by the Owners.
16.3 Except as specified in these Terms and Conditions, the User is not granted a license or any other right including without limitation under Copyright, Trademark, Patent or other Intellectual Property Rights in or to the content.
16.4 The User may not access, display, use, download, and/or otherwise copy or distribute content displayed on the Website for marketing and/or any other purposes without the prior written consent of the Provider.
17. Limitation of liability
The Website and all Content on the Website, including any current or future offer of products or services, are provided on an "as is" basis, and may include inaccuracies or typographical errors. The Owners make no warranty or representation as to the availability, accuracy or completeness of the Content. Neither Provider nor any holding company, affiliate or subsidiary of Provider, shall be held responsible for any direct or indirect special, consequential or other damage of any kind whatsoever suffered or incurred, related to the use of, or the inability to access or use the Content or the Website or any functionality thereof, or of any linked website, even if Provider is expressly advised thereof.
18. Privacy: casual surfing
The User may visit the Website without providing any personal information. The Website servers will in such instances collect the IP address of the User computer, but not the email address or any other distinguishing information. This information is aggregated to measure the number of visits, average time spent at the Website, pages viewed, etc. Provider uses this information to determine use of the Website, and to improve Content thereon. Provider assumes no obligation to protect this information, and may copy, distribute or otherwise use such information without limitation.
19. Choice of Law and jurisdiction
19.1 This Website is controlled, operated and administered by Provider from its offices within the Republic of South Africa. Access to the Website from territories or countries where the Content or use of the Services sold on the Website is illegal is prohibited. The User may not use this Website in violation of South African laws and regulations. If the User accesses this Website from locations outside of South Africa, that User is responsible for compliance with all local laws.
19.2 These Terms and Conditions shall be governed by the laws of the Republic of South Africa, and the User consents to the jurisdiction of the High Court of South Africa, Gauteng Local Division in the event of any dispute. If any of the provisions of these Terms and Conditions are found by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect. These Terms and Conditions constitute the entire agreement between the Provider and the User with regard to the use of the Content, the provision of the Services and this Website.
19.3 The Provider shall not be bound by any express or implied term, representation, warranty, promise of the like not expressly recorded herein.