The Advertiser has concluded an agreement with PropertyGenie, in terms of which the Advertiser is entitled to advertise the Development and Residential Property on the Site (the "Agreement"). In terms of the Agreement these Terms and Conditions of Use are incorporated by reference into the Agreement and shall be deemed to form part of the Agreement.
2. DEFINITIONS
In these Terms and Conditions of Use, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings: 2.1 "Advertising Period" means the advertising period referred to in the Agreement; 2.2 "Business Day" means any day other than a Saturday, Sunday or Public Holiday; 2.3 "Advertising" means the development or residential property referred to in the Agreement; 2.4 "Development" means the developer referred to in the Agreement; 2.5 "Fee" means the fee payable by the Advertiser in terms of the Agreement; 2.6 "Property Search Function" mean a search functionality on the Site in terms of which searches may be conducted for immovable property that is available for sale or lease, including new developments; 2.7 "Site" means www.propertygenie.co.za.
3. DEVELOPMENT DATA
3.1 The Advertiser shall be responsible for furnishing PropertyGenie with the information pertaining to the Development in the format stipulated by PropertyGenie in its sole discretion ("Development Data") by not later than 10 (ten) days prior to the requested start date referred to in the Agreement. If the requested development data is not delivered timeously PropertyGenie shall be entitled to defer the requested start date or to elect to not proceed with placing the required advertising. 3.2 Upon receipt of the Development Data and provided same is in the format stipulated by PropertyGenie and received timeously, PropertyGenie shall upload the Development Data on to the Site. 3.3 PropertyGenie reserves the right but does not assume the obligation to inspect the content and material in the Development Data uploaded to the Site to ascertain compliance with these Terms and Conditions of Use or any laws, regulations or codes applicable to the Site, the Agreement or to the Advertiser or the Development Data. In the event of any breach or purported breach, PropertyGenie will be entitled to permit a relevant authority to inspect the same or determine not to place the advertising. 3.4 The Advertiser shall not in any of the Development Data make reference to any competitor of the Advertiser in any manner or form, or to any other development that was or is being developed by any other third party unless such third party has consented thereto. 3.5 The Advertiser undertakes that it shall not : 3.5.1 obtain, or attempt to obtain, access to the Site by rearranging, tampering with, or making connection with the Site, or by any trick, scheme, false representation or false credit device, or by or through any other fraudulent means or devices whatsoever, with intent to avoid payment, in whole or in part, of the Fee payable to PropertyGenie in terms of the Agreement; 3.5.2 attempt to, or actually obtain, access, alter, or destroy the data files, programs, procedures and/or information of PropertyGenie or of any other third party who uses the Site; 3.5.3 assist any other party to perform the acts referred to in clause 3.5.1 and 3.5.2. 3.6 The Advertiser undertakes that all Development Data and Advertising supplied : 3.6.1 shall not, under the law of the Republic of South Africa or any other jurisdiction or under international conventions, codes or regulations applicable to the Internet, result in any breach of those laws, codes or regulations including infringement of copyright and other intellectual property rights ("IPR's"); 3.6.2 shall be free of any destructive element. For the purposes of the Agreement a destructive element shall mean any computer code which is designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of the Site (including the Property Search Function), or any other associated software, firmware, hardware, computer software or network (generally referred to as "viruses" or "worms"); and/or would disable the Site or impair in any way its operation based on the elapsing of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (generally referred to as "time bombs", "time locks", or "drop dead" devices) or would permit the Advertiser or any third party to access the Site to cause disablement or impairment (generally referred to as "traps", "access codes" or "trap door" devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause such Site to cease functioning or to damage or corrupt data, storage media, programmes, equipment or communications, or otherwise interfere with operations. 3.7 If for any reason whatsoever (whether as a result of the conduct of the Advertiser or any third party), in the reasonable opinion of PropertyGenie, the continued advertisement of the Development on the Site and/or the continued association of PropertyGenie with the Development, could result in the reputation or image of PropertyGenie being damaged, PropertyGenie shall on 24 (twenty four) hours written notice be entitled to terminate the Agreement and remove the Development Data and all reference to the Development from the Site and the Advertiser shall have no claim whatsoever as the result of or arising from the cancellation by PropertyGenie of the Agreement as aforesaid.
4. OWNERSHIP OF INFORMATION
4.1 All intellectual property rights in the Advertising (including the Advertiser’s trademarks) uploaded onto the Site shall remain the property of the Advertiser provided that the Advertiser hereby grants PropertyGenie a license (on the terms and conditions recorded in this clause 4.1) to use the Advertising for the purposes of offering the Property Search Function and operating the Site generally. For the avoidance of doubt it is recorded that any revenues obtained by PropertyGenie from its use of the Development Data and Advertising shall be solely for its own account. PropertyGenie may in the widest sense possible distribute, advertise and otherwise share the Development Data and Advertising with other persons or entities. The license referred to in clause 4.1 shall be free of charge, non exclusive, non transferable and endure for so long as the Development Data and Advertising in question is available for viewing on the Site. 4.2 Subject only to clause 4.1, all intellectual property rights in the Site (including PropertyGenie’s trademarks and all copyright subsisting in the Site) is, and shall remain at all times, the property of PropertyGenie.
5. EXCLUSION OF WARRANTIES/LIMITATION OF LIABILITY
5.1 PropertyGenie will use its reasonable endeavours to procure that the Property Search Function and the Site will continuously operate but PropertyGenie does not warrant or represent that it can do so since neither PropertyGenie nor any other party has any control over the Internet, which is a global decentralised network of computer systems. 5.2 PropertyGenie does not warrant or represent that the Property Search Function or the Site will not be error free or uninterrupted or that the Site will not contain destructive elements as defined in clause 3.6.2 above. 5.3 The Advertiser accepts the Property Search Function and the Site "as is" and "as available" without any warranty of any kind either express or implied, including but not limited to warranties of effectiveness as a marketing tool, merchantability, fitness for purpose, title or non-infringement. 5.4 PropertyGenie is not liable and will not be liable under any circumstances, for any direct, indirect, incidental, special, punitive or consequential loss or damages which result or may result from the Advertiser's use of the Site (including deletion or loss of files, defects or delays in transmission or any failure of the Site) for any purpose whatsoever or for any reliance on or use of information, services or transactions executed on or through the Property Search Function or the Site. The Advertiser's sole and exclusive remedy in the event of any breach of the Agreement by PropertyGenie, is termination of the Agreement by way of written notice to PropertyGenie. Provided such termination is lawful, PropertyGenie will refund a pro rata portion of the Fee which is prepaid prior to such lawful termination. 5.5 Save for warranties expressly furnished by PropertyGenie in terms of the Agreement (including these Terms and Conditions of Use), PropertyGenie gives no other warranties, express or implied, in relation to the Site or the Property Search Function. 5.6 In the event PropertyGenie incurs any liability whatsoever to the Advertiser such liability will in all cases be limited to the Fee paid by the Advertiser in the calendar year in which such liability arose. 5.7 PropertyGenie is not responsible in contract or in delict for the unauthorised access to, or alteration, theft or destruction of uploaded files, data or other materials of the Advertiser by any person through accident or by fraudulent means or devices, even if such access occurs as a result of PropertyGenie's own negligence. 5.8 PropertyGenie will not be responsible for any delay in, or failure of, the Site or the Property Search Function due to any occurrence commonly known as force majeure, including war, riots embargoes, strikes, or other concerted acts of workmen (whether of the PropertyGenie or others) casualties or accidents, or any other causes, circumstances, or contingencies, beyond PropertyGenie's control, which prevent or hinder the performance of PropertyGenie of any of its obligations hereunder. 5.9 The Advertiser undertakes fully and effectively to indemnify and keep indemnified at all times PropertyGenie against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by PropertyGenie directly or indirectly in respect of any breach by the Advertiser of any of the provisions of the Agreement or of any law, code or regulation relating to the Advertiser.
6. BREACH
Should the Advertiser breach any term of, or fail to perform any of his obligations in terms of the Agreement, PropertyGenie shall be entitled, without notice, to cancel the Agreement and withdraw the Advertising from the Site with immediate effect, without prejudice to its right to recover any amounts due to PropertyGenie in terms of the Agreement and/or any loss or damage suffered by PropertyGenie as a consequence of the breach by the Advertiser of any term of the Agreement or the cancellation of the Agreement or the withdrawal of the Advertising from the Site.
7. NOTICES
7.1 PropertyGenie selects 8th Floor, 33 Bree Street, Cape Town, 8001 (Fax: 021-481-3400) as its address for the service of all notices and processes in connection with the Agreement. The Advertiser selects the address set forth on the Agreement for this purpose. Such address may be changed by either party to any other physical address in the Republic of South Africa by not less than 7 (seven) days notice in writing to the other. 7.2 Any notice to any party shall be sent to its nominated address by prepaid registered post or delivered by hand or communicated by fascimile. In the case of any notice: 7.2.1 sent by prepaid registered post, it shall be deemed to have been received, unless the contrary is proved, on the 7th (seventh) Business Day after posting; 7.2.2 delivered by hand, it shall be deemed to have been received, unless the contrary is proved, on the date of delivery, provided such date is a Business Day or otherwise on the next following Business Day; 7.2.3 any communication sent by fascimile, shall be deemed to have been received, unless the contrary is proved, 1 (one) hour after the time of transmission, provided the day of transmission is a Business Day or otherwise on the next following Business Day.
8. GENERAL
8.1 The Agreement (including these Terms and Conditions of Use) is governed by the laws of the Republic of South Africa. 8.2 No indulgence, extension of time, relaxation or latitude which any party ("the grantor") may show grant or allow to the other ("the grantee") shall constitute a waiver by the grantor of any of the grantor's rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future. 8.3 The Advertiser shall not, at any time cede or assign any of his rights or obligations under the Agreement without the prior written consent of PropertyGenie. 8.4 For the purposes of all or any proceedings under the Agreement, the parties hereby consent to the jurisdiction of the Magistrate's Court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. The provisions hereof shall be deemed to constitute the required written consent conferring jurisdiction upon the said Court pursuant to Section 45 of the Magistrate's Court Act of 1944 or any amendment thereof, provided, that both parties shall have the right at their sole option and discretion to institute proceedings in any other competent court in the Republic of South Africa. 8.5 If any term, condition or provision of the Agreement, including any term, condition or provision in these Terms and Conditions of Use, shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law. 8.6 Any amount not paid by the Advertiser to PropertyGenie on the due date for payment thereof shall attract interest at the prime lending rate as determined by the Standard Bank of South Africa Limited from time to time and shall be calculated from the date that such fee falls due to date of payment thereof. A certificate issued by any branch manager (whose appointment it shall not be necessary to prove) of the Standard Bank of South Africa shall be conclusive proof as to the prime lending rate as aforesaid.
