MARKETPLACE AGREEMENT
- Introduction
1.1. This website can be accessed at fempreneurs.co.za related mobile – sites, and software applications, collectively referred to as “the Website” and is owned and operated by Fempreneurs (Pty) Ltd (“Fempreneurs”).
1.2. The Partner, acknowledges and agrees, that by registering for or using the Platform, whether, as a Seller, you expressly agree to be bound by the terms and conditions of this Agreement.
1.3. Fempreneurs reserves the right to update and amend this Agreement from time to time at its sole discretion. Any amendments to this Agreement shall become effective and binding on all Partners as soon as the amendments have been published on the Fempreneurs Website Partner Portal and/or may be communicated by email.
1.4. This Agreement contains the terms and conditions that govern the Partner’s access to, and use of, the Platform and is an agreement between the Partner and Fempreneurs.
1.5. By making use of the Platform and/or by clicking on the “Register Now” button on the Website, and registering as a Partner, you acknowledge, agree and confirm your intention to be bound by this Agreement, which are subject to our Terms and Conditions, Terms of Use and Privacy Policy.
1.6. This Website enables Partners to advertise, sell and/or shop for or purchase various goods as distributed through or by means of the Website by Sellers making use of the Website for this purchase.
2. Definitions and Interpretation
2.1. Clause headings are for convenience and are not to be used in interpretation.
2.2. An expression which denotes:
2.2.1. any gender includes the other genders;
2.2.2. a natural person includes a juristic person and vice versa; and
2.2.3. the singular includes the plural and vice versa.
2.3. In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
2.3.1. “Agreement” means this Platform Marketplace Agreement and all annexures hereto;
2.3.2. “Claims” means any foreseeable or unforeseeable, alleged or actual actions, causes of action, claims, demands, lawsuits, legal proceedings, administrative or other proceedings or litigation;
2.3.3. “Confidential Information” means –
2.3.3.1. any trade secrets of either Party;
2.3.3.2. any information of either Party in respect of know-how, processes, systems, business methods, marketing methods, methods of operating, promotional plans, financial models, long-term plans, information of a strategic nature and any other similar information;
2.3.3.3. details of all internal control systems of either Party;
2.3.3.4. details of the financial structure and operating results of either Party;
2.3.3.5. the contractual and financial arrangements between or among either Party and third parties with whom either Party has business arrangements of whatever nature;
2.3.3.6. all ‘Personal Information’ and/or ‘Records’ (both terms having the meaning ascribed in Chapter 1 of POPI) in the possession of or controlled by a Party; and
2.3.3.7. all other information of either Party which is not generally known and which, if known, would be advantageous to a competitor of either Party or disadvantageous to either Party, in each case:
(a) whether oral or recorded in writing or in any other form;
(b) whether formally designated as confidential or not; and
(c) howsoever known, communicated or retained, but does not include information which –
(i) is lawfully in the public domain at the time of disclosure;
(ii) subsequently and lawfully becomes part of the public domain by publication or otherwise;
(iii) subsequently becomes available to a Party from a source other than the other Party, which source is lawfully entitled without any restriction on disclosure to disclose such confidential information; or
(iv) is disclosed under a requirement or request by operation of Law, regulation or court order;
2.3.4. “Content” means all information, content and images, including but not limited to, product information, which shall include trademarks associated with such products, provided or made available by the Partner or its affiliates to Fempreneurs for use in connection with the Platform and otherwise made available by the Partner or its affiliates to customers on the Platform;
2.3.5. “Customer” means any end–user, Partner or consumer who accesses and makes use of the Platform to browse, search and/or purchase Goods;
2.3.6. “Effective Date” means the date of electronic acceptance of this Agreement by the Partner;
2.3.7. “Fee” means the commission of 3% that Fempreneurs will retain from each successful sale of a Seller’s Products made through the Platform;
2.3.8. “Goods” means Goods as defined in section 1 of the CPA advertised or made available for sale via the Platform that has been approved by Fempreneurs;
2.3.9. “Intellectual Property” means any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right arising under any Law and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing;
2.3.10. “Law” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction, including without limitation the Consumer Protection Act 68 of 2008, the Protection of Personal Information Act and relevant South African National Regulatory of Compulsory Specifications requirements;
2.3.11. “Losses” means any damages (including, without limitation, direct, consequential, economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive) sanctions, settlement payments, disbursements, judgements, liability, losses (including lost income or profit), costs or expenses of any nature whatsoever, whether accrued or absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought);
2.3.12. “Order(s)” means any orders placed by a Customer through the Fempreneurs Platform for purchase by such Customer;
2.3.13. “Partner” means any business, enterprise or person who concluded this Agreement with Fempreneurs whether to advertise its business or Goods on the Platform, engage in and make use of the Services whether or not the Partner has registered to use the sales portion of the Platform;
2.3.14. “Partner Portal” means the web-based tool or another web-based service or interface, provided by Fempreneurs and/or a Service Provider that Partners can use to manage their settings, Content and other information related to the Platform, and including all associated product listing requirements;
2.3.15. “Platform” means the online sales platform, web-based tools and other web services or interfaces, provided by Fempreneurs and/or its Service Providers which can be used by Sellers to manage their settings, Content and other information related to its use of the Platform;
2.3.16. “Product(s)” means all products, approved by Fempreneurs and made available for sale by any Seller on the Platform;
2.3.17. “POPI” means the Protection of Personal Information Act 4 of 2013;
2.3.18. “Sales Proceeds” means the gross sales proceeds from the sale of the Seller’s Products, including VAT and excluding delivery costs;
2.3.19. “Seller” means any Platform Partner or third party vendor, distributor, wholesaler, retailer or other business, enterprise or person who has registered to sell Goods through the Platform and agreed to the terms of this Agreement;
2.3.20. “Seller Share” means the Sale Proceeds collected by Fempreneurs from the sale of the Seller’s Products less Fempreneurs’s Fee;
2.3.21. “Services” means the services provided by Fempreneurs under the terms of this Agreement which will not be limited to:
2.3.21.1. an online marketplace sales and advertising platform owned and operated by FEMPRENEURS through which vendors (“Partners”) can access online advertising and sales channels;
2.3.21.2. such further and/or alternative services including education, training, mentorship, and business coaching delivered in person or online, including by way of our websites, messaging services (such as WhatsApp™ and Telegram™) and social media platforms (such as Facebook™ and Instagram™);
2.3.21.3. the provision of information, text, graphics, photos, audiovisual material, data and any other materials and content (collectively “Content”) uploaded, downloaded or appearing on or concerning the Services, our websites, mobile apps and the messaging services and social media platforms used to deliver, describe and illustrate the Services; and
2.3.21.4. software–as–a–service, including the computer programs incorporated in our websites and the messaging services and social media platforms used to deliver, describe and illustrate the Services (“Software”);
2.3.22. “Service Provider” means a third–party service provider who provides software management and related services to either of the Parties;
2.3.23. “Fempreneurs” means Fempreneurs (Pty) Ltd, registration number 2023/579276/07, a private company registered under the laws of South Africa;
2.3.24. “Transaction Information” means the Customer’s Order information, including but not limited to the Customer’s name, email address, contact number and shipping address;
2.3.25. “VAT” means Value Added Tax as defined in the Value Added Tax Act 89 of 1991; and
2.3.26. “Website” means the Fempreneurs Website, which can be accessed at www.fempreneurs.co.za related mobile – sites, and software applications, collectively referred to as “the Website” and is owned and operated by Fempreneurs (Pty) Ltd.
2.4. Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause, or elsewhere in this Agreement, will be given effect to as if it were a substantive provision in the body of this Agreement.
2.5. Words and expressions defined in any clause will, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
2.6. Defined terms appearing in this Agreement in title case will be given their meaning as defined, while the same terms appearing in lower case will be interpreted under their plain English meaning.
2.7. A reference to any statutory enactment will be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.
2.8. Reference to “days” will be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as Gazetted by the government of the Republic of South Africa from time to time. Any reference to “business hours” will be construed as being the hours between 08h00 (Eight hours) and 17h00 (Fifteen Hundred Hours) on any business day. Any reference to time will be based upon South African Standard Time.
2.9. Unless specifically otherwise provided, any number of days prescribed will be determined by excluding the first day and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
2.10. Where figures are referred to in numerals and words, and there is any conflict between the two, the words will prevail, unless the context indicates otherwise or a contrary intention.
2.11. No provision herein will be construed against or interpreted to the disadvantage of a Party because of such Party having or being deemed to have structured, drafted or introduced such provision.
2.12. The words “include” and “including,” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples will not be construed as limiting the meaning of the general wording preceding it. The application of the eiusdem generis rule is therefore excluded.
2.13. In this Agreement, the word “Agreement” refers to this Agreement and all annexures hereto and the words “clause” or “clauses” refer to clauses of this Agreement.
3. Third Party Service Providers
3.1. The Partner acknowledges and agrees that:
3.1.1. Fempreneurs may contract any Service Provider to provide software management and ancillary services as Fempreneurs may require from time to time; and
3.1.2. the Partner may provide Content to Fempreneurs using software and/or services of a Service Provider.
4. License for Seller’s Content
The Partner hereby grants Fempreneurs, its affiliates, service providers and marketing partners, a nonexclusive, royalty-free, irrevocable right and license to publish, use, reproduce, distribute, transmit, display, the works of and otherwise commercially exploit all Content in connection with the sale of products through the Platform and for the listing, advertising, marketing and promotion of such products or the Platform, including without limitation, through the Fempreneurs website, third party websites, e-mail, social media or any other medium. The Seller acknowledges and agrees that users of the Fempreneurs website may share and post Content on their social media outlets and accordingly consents to such use.
5. Product Information and Other Content
5.1. The Partner will, concerning the Goods, use the Partner Portal to list all the required Content, pricing and available inventory per unique product.
5.2. Fempreneurs will be entitled to update Content provided by the Partner or restrict access to Content updates by the Partner from time to time to manage advertising campaigns and updates to the Portal.
5.3. The Partner shall adhere to the minimum requirements of the Partner Portal and this Agreement.
5.4. Sellers will:
5.4.1. use commercially reasonable efforts to ensure the Partner Portal always has an accurate and available inventory count per Product listed thereon;
5.4.2. update, at least daily, the Partner Portal inventory count concerning Products where inventory levels changed;
5.4.3. provide Fempreneurs, through the Partner Portal with a daily inventory feed for all Products; and
5.4.4. provide Fempreneurs, with all Content requested, including, without limitation, the Product information as set out in the Partner Portal.
5.5. The Seller will be held solely responsible for the accuracy of its pricing, available inventory and all Content for Products and will be obliged to honour any order placed by a Customer through the Platform as a result of the Content provided. Failure by the Seller to honour the applicable order shall be considered a material breach of this Agreement.
5.6. The Seller:
5.6.1. will be restricted from selling any Products as set forth in Annexure A;
5.6.2. will withhold or remove Products from advertising or sale on the Portal if it is restricted from selling certain Products due to supplier brand restrictions or if the Seller is not an authorized reseller for any Product, in which case, the Seller will be obliged to promptly notify Fempreneurs in writing of such removal.
6. Product Authenticity and Safety
6.1. If a Partner is not the manufacturer or brand owner of any Product, the Partner will receive (whether for advertising or sale) all Products directly from the manufacturer and / or brand owner or from an authorized supplier of such person, and, if such Products will be sold by a Seller, he must be an authorized reseller of the Products.
6.2. The Seller shall ensure and maintain adequate processes and procedures for conducting due diligence checks to guarantee that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. At all times, the Seller will have available for Fempreneurs’ inspection:
6.2.1. certificates of authenticity (or similar documentation) concerning the Products; and
6.2.2. documentation (e.g. e-mail verifications from the brand owner or supplier) showing that the Seller is permitted to sell specific brands or Products through the Platform and within the Republic of South Africa.
6.3. The Seller shall upload the requisite documentation onto the Partner Portal at the time of listing any Product before it is made active for the first time in the Partner Portal. Should the requisite documentation not be loaded onto the Partner Portal at the time of listing, Fempreneurs shall be entitled to reject the item in the Partner Portal without notice to the Seller.
6.4. The Seller will comply with, and ensure that all Products comply with, all product safety testing and certification requirements under the applicable Law, and any other applicable Law. The Seller shall upload the relevant safety compliance documentation onto the Partner Portal before the Product is made active for the first time by the Seller.
6.5. The Partner hereby indemnifies and undertakes to hold harmless Fempreneurs against any loss and / or damages that may be suffered as a result the sale of the Products online via the Fempreneurs Platform.
7. Fees and Payments
7.1. Product pricing fees and adjustments, Product discounts, profit margins and any fees due to Fempreneurs shall be calculated in terms of the Fempreneurs Cost Calculator.
7.2. By accepting the terms of this Agreement, the Seller acknowledges and agrees to the terms, percentages and calculation methodologies set out in the Cost Calculator. Inclusive of a mandatory 5% “Fempreneurs Discount” deducted off all shopper purchases.
7.3. Fempreneurs and the Seller will discuss and complete the Cost Calculator before the Seller’s listing is activated on the Fempreneurs portal.
7.4. The Seller acknowledges and agrees that the pricing of all Products listed for sale on the Fempreneurs portal shall be calculated in accordance with the Cost Calculator and the onus shall be on the Seller to engage and apply to Fempreneurs for any variation of or deviation from the terms set out in the Fempreneurs Cost Calculator, which amendment or indulgence shall be in Fempreneurs’ sole discretion.
7.5. Fempreneurs will be entitled to the Fee equal to:
7.5.1. a percentage of 8% of the Sales Proceeds from each completed sale of the Seller’s Products made through the platform; and/or
7.5.2. a percentage of 10% on Coaching Services sold via the Platform (for the Coach’s expense).
7.6. Fempreneurs will be deemed to have earned the Fee upon Deemed Completion of any Order.
7.7. The Fee percentages charged by Fempreneurs may vary in relation to specific Product categories as determined by Fempreneurs from time to time and set out in the Partner Portal. These Fee percentages are subject to change at any time, without prior notice to the Seller, and shall be effective as soon as the changes are reflected on the Partner Portal.
7.8. An Order is deemed complete once the payment has been completed on the platform.
7.9. Customer payments shall be made via the Fempreneurs online payment gateway which Fempreneurs may, in its sole discretion, change from time to time.
7.10. Payments by Customers will be held in a ‘master account’ and paid to the Seller in relation to complete orders.
7.11. Fempreneurs will make payment to the Seller of the Seller’s Share, for Orders that are deemed to be complete, weekly with the payments to be made on Mondays and Thursdays each week. When these dates do not fall on business days, payment will be made on the next payment day after such a date.
7.12. Payments by Fempreneurs to the Seller in respect of payments received by Fempreneurs, for Orders that meet the Deemed Completion criteria:
7.12.1. funds that have cleared in the Fempreneurs account, for orders (payments) received between Thursday morning to midnight on Sunday, will be paid/released to the Seller each Tuesday; and/or
7.12.2. funds that have cleared in the Fempreneurs account, for orders (payments) received between Monday morning to midnight on Wednesday, will be paid/released to the Seller each Thursday.
7.13. Fempreneurs shall, in its sole discretion, make all payments to the Seller’s bank account through electronic funds transfer or similar methods. If Fempreneurs concludes that the Seller’s actions and/or performance in connection with this Agreement or any Order may result in Customer disputes, dissatisfaction, Seller suspension or delisting, chargebacks or other claims, Fempreneurs may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to the Seller under this Agreement for the shorter of:
7.13.1. a period of 90 (Ninety) days following the initial date of suspension or delisting; or
7.13.2. the completion of any investigation(s) regarding the Seller’s actions and/or performance in connection with this Agreement.
7.14. Fempreneurs shall be entitled to deduct from the Sales Proceeds:
7.14.1. the Fee;
7.14.2. any claims for delivery or refunds, delivery of returned items and re-delivery charges in respect of the replacement of Products or repaired Products; and
7.14.3. any compensation paid by Fempreneurs to any Customer for damage or losses that the Customer may have suffered due to errors/omissions/negligence of the Seller, as determined by Fempreneurs in its sole discretion.
7.15. Delivery fees paid by any Customer to Fempreneurs will be paid by Fempreneurs to the Seller in respect of the delivery of Products by the Seller to the Customer.
7.16. The Seller acknowledges and agrees that the Seller shall be liable for all delivery costs incurred by any Customer to return faulty, incorrect, expired or incomplete Products to either the Seller or Fempreneurs.
8. Purchase Order Processing, Fulfilment and Delivery
8.1. Customers purchasing Products through the Platform will place Orders using the selected Fempreneurs checkout and payment gateway in respect of which the Seller acknowledges and agrees that Fempreneurs may make use of third-party payment gateway services as Service Providers providing technical services that allow Seller to accept and process payments from Customers.
8.2. Fempreneurs shall itself or through its appointed third-party payment gateway Service Provider, make a payment platform accessible to Sellers and their Customers via application programming interfaces (APIs) that enable the Seller and their Customers to use the payment platform.
8.3. Fempreneurs will send an email message to each Customer confirming receipt of an Order.
8.4. Sellers must manage all Orders via the Partner Portal and update the Order status for the duration of the Order and delivery process.
8.5. The Seller must update the Order status to “Accepted” (which means a confirmation by the Seller that it has stock or will be receiving stock), via the Partner Portal within 1 (One) day of receiving an Order. If the Seller does not have stock, then a note to this effect should be left on the order in the Partner Portal within 1 (One) day of receiving the order and before accepting the order.
8.6. The Seller is obligated to update the Order status to “Ready for Collection” (which means the Order is packed and ready for collection by the courier), via the Partner Portal within 7 (Seven) days of receiving an Order.
8.7. All consignments must be fulfilled by the Seller at the Seller’s expense. The delivery fee as recovered from the Customer (should the customer make a delivery payment) will be paid to the Seller.
8.8. The Seller shall, at its discretion, be entitled to make use of the Fempreneurs’ selected courier service provider and acknowledges and agrees that Fempreneurs has no involvement in the Seller’s arrangements with third-party service providers and offers no warranties or guarantees in terms of such services.
8.9. Where the Seller is making use of a courier who does not have integrations to the Partner Portal for automated status updates, the Seller is obligated to update the Order status to “Ready for collection” when a waybill has been created for the consignment to “Out with Courier” when the consignment has been handed to the courier for delivery and “Completed” when the item has been delivered to the customer. This must be actioned via the Partner Portal within 1 (One) day of these events. When updating the status to “Ready for Collection”, the Seller must leave a note on the Order in the Partner Portal advising of the courier to be used for delivery as well as the waybill number and details as to where the waybill number can be tracked. When updating the status to “Completed”, the Seller must leave a note on the Order detailing the recipient and date/time of delivery.
8.10. Fempreneurs shall not be liable for any fraudulent payments or purchases and the Seller acknowledges that the sole risk associated with such fraud in respect of any Order will rest with the Seller.
8.11. The Seller shall bear the full risk in and to any valid cancellation of an Order by a Customer and expressly acknowledges that Customers may have additional rights against the Seller as a result of the terms and conditions contained on the Fempreneurs website, if any.
8.12. Fempreneurs recommends that items are not dispatched in original packaging and that the Seller should wrap the original packaging (plastic or paper wrap) before applying the waybill to the item as items may be returned to the Seller after dispatch or in terms of the Returns Policy. Fempreneurs will not be responsible should a returned item not be fit for resale where the item was dispatched in original by the Seller.
8.13. Once Fempreneurs transmit an Order to Partner Portal, the Seller will, at its own expense, be solely responsible for, and bear all liability for, processing and updating all relevant statuses on the Partner Portal, including the accurate packing of all applicable orders, including without limitation, any ad hoc Customer service requests from Fempreneurs.
8.14. The Seller shall be responsible for updating the Partner Portal within 1 (One) day if it cannot fulfil the entire quantity of an Order. Fempreneurs will then contact the Customer and advise the Seller as to how the Customer wishes to proceed. Orders will be updated accordingly where requested by the Customer.
8.15. If the Seller cannot update any order “Ready for Collection” within the required time due to stock delays, the Seller shall be required to update the Partner Portal. Fempreneurs will then contact the Customer and advise the Seller as contemplated in clause 8.13.
8.16. All orders must be processed in the Partner Portal using the order information contained therein.
8.17. Packaging material must comply with the minimum packaging standards set out in the Partner Portal and may contain only such marketing or other materials as approved by Fempreneurs.
8.18. The Seller acknowledges and agrees that:
8.18.1. Fempreneurs will notify it of an Order after Fempreneurs has received notification of payment thereof irrespective of the payment method and time required by the relevant merchant bank to process such payment; and
8.18.2. it shall be obliged to honour all Orders based on the price and availability of Products on the Partner Portal as of the date of Order, notwithstanding that the Seller may have only been notified of the Order after the actual date of Order.
8.19. Sellers are obliged to facilitate their own initial shipping leg and returns for faulty, incorrect, expired, incomplete or courier-damaged items.
8.20. The Seller will be responsible for shipping all Products purchased by Customers under shipping practices stipulated from time to time by Fempreneurs. The Seller will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or erroneous delivery.
9. Cancellations, Returns and Refunds
9.1. The Seller acknowledges and agrees that the Fempreneurs Marketplace does not undertake any processing, shipping or delivery of any products to customers and all such responsibility shall rest on the Seller.
9.2. Fempreneurs shall not be responsible for processing any Customer requests for cancellations, returns, refunds and/or customer service price adjustments. Should a customer communicate any such request to Fempreneurs, the request shall be provided to the Seller and all obligations to act in terms of that request shall rest on the Seller who shall be required to stop and/or cancel any Order if requested to do so by Fempreneurs.
9.3. It is the Seller’s responsibility to ensure that the cancelled items are returned to the Seller or not dispatched.
10. Seller Parity
10.1. The services provided by the Seller to Customers and the Content provided by the Seller to Fempreneurs must be of the same level of acceptable service or display the same level of quality information provided by or displayed on other similar sites, marketplaces, retail or wholesale outlets.
10.2. Failure by the Seller to comply with clause 10.1 above will, in Fempreneurs’ discretion, be regarded as a material breach of these Terms.
11. Recalls and Defective Goods
The Seller is solely responsible for any non-conformity or defect in, or any public or private recall of Seller’s Products as is governed in terms of the Consumer Protection Act and Fempreneurs will have no responsibility or liability for any recalls of Products sold through the Fempreneurs Platform. If Products are subject to a recall, the Seller is responsible for all matters, costs and expenses associated with such recall, including without limitation, notices and refunds to Customers, contact and reporting of the recall to any governmental agency having jurisdiction over the affected Products, and compliance with all applicable Law concerning such recall. The Seller will promptly remove any recalled Products from the Fempreneurs Platform and shall notify Fempreneurs by e-mail at su*****@fe*********.za of all Product recalls within 24 (Twenty – Four) hours of becoming aware of the recall. The Seller will provide Fempreneurs with all information reasonably requested in connection with the recall of any Product.
12. Contact with Customers and Customer Service Escalation
12.1. Fempreneurs shall be responsible for all Customer support communications and may escalate any support query to the Seller for additional support and resolution.
12.2. The Seller must, in such communications, represent itself as a separate entity from Fempreneurs and warrants that nothing in this Agreement or other actions by the Seller represent any partnership or agency between Fempreneurs and the Seller.
12.3. The Seller acknowledges and agrees that:
12.3.1. it will not contact the Customer directly without Fempreneurs’ express consent; and
12.3.2. it will not disparage Fempreneurs or its services in any communication with any Customer.
14. Seller Systems and Service Levels
The Seller shall be solely responsible for the adequate maintenance and up-keep of all Seller systems that are necessary for the Seller to fulfil Orders and meet its obligations of this Agreement and shall notify Fempreneurs within 1 (One) day by emailing su*****@fe*********.za, of any downtime or related system issues, that may or will have an impact on the Seller’s ability to fulfil Orders or otherwise meet its obligations in terms of this Agreement.
15. Reporting and Audits
15.1. The Seller will, within a reasonable period of time, not exceeding 30 (Thirty) days, following a request from Fempreneurs, make commercially reasonable efforts to provide Fempreneurs with any reports, information or other documentation relating to the Seller’s compliance with this Agreement and applicable Law reasonably requested by Fempreneurs, provided, however, that if Fempreneurs requests that the Seller provide Fempreneurs with copies of reports that the Seller was required to file with any regulatory agency, the Seller will provide such reports within 7 (Seven) days of Fempreneurs’ written request.
15.2. The Seller will keep accurate and complete books, records and accounts related to all transactions on the Platform and this Agreement, and will allow Fempreneurs, or its duly authorised representative, the right, upon not less than 7 (Seven) days prior written notice, during the term of this Agreement and for 2 (Two) years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by Fempreneurs to confirm the Seller’s compliance with the terms of this Agreement and applicable Law.
15.3. Upon Fempreneurs’ request, the Seller will provide Fempreneurs with written certification from an officer of the Seller stating that the Seller has complied with any of the Seller’s obligations under this Agreement, including, for example, and without limitation, compliance with agreements, consumer product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
16. Representations and Warranties
16.1. Each Party represents and warrants to the other Party that:
16.1.1. it is a duly authorised, validly existing and in good standing under the laws of the Republic of South Africa and the Party has full power and authority to execute and deliver in terms of this Agreement and to perform its obligations hereunder without any further ratification or approval;
16.1.2. neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
16.2. The Seller hereby represents and warrants to Fempreneurs that:
16.2.1. the Seller has the right, power and authority to grant the rights and licenses hereunder free and clear of any claims, liens and encumbrances and to sell the Products;
16.2.2. the Seller and all of its employees, subcontractors, agents and suppliers will comply with all applicable Laws, as may be amended from time to time, in performing any of its obligations or exercising any of its rights under or related to this Agreement;
16.2.3. all Products (including all packaging) and Content will comply with applicable Laws and Regulations;
16.2.4. the production, manufacturing, offer, sale, shipping and delivery of all Products will comply with all applicable Laws;
16.2.5. Products will not be produced or manufactured by child labour or convict or forced labour; and
16.2.6. the Seller is and/or has been made aware, acknowledges and agrees that Fempreneurs provides an online platform for the sale and/or marketing of Products and will not provide any services relating to or involving the shipment of Products, management of payments by Customers or such ancillary services which are not related to the platform hosting function fulfilled by Fempreneurs.
16.3. The Seller’s principal place of business is in South Africa and the Seller will not conduct any operations relating to this Agreement from outside South Africa.
16.4. All Content will be truthful and accurate. Content will not:
16.4.1. be misleading or deceptive;
16.4.2. be defamatory, threatening or harassing;
16.4.3. infringe upon or violate any Intellectual Property Rights or other right of any third party;
16.4.4. promote or depict gratuitous violence, the use of alcohol, tobacco or illegal substances or adult-oriented content; or
16.4.5. reflect unfavourably on Fempreneurs, or the Fempreneurs Platform or be the type of content that could otherwise reasonably adversely impact or damage the reputation or public image of Fempreneurs. The Seller will not use the Content to redirect Fempreneurs Customers to any other sales channels.
16.5. The Seller will only offer Products for sale on the Fempreneurs Platform that may be sold and shipped throughout South Africa. The Seller will not offer for sale any Products through the Fempreneurs Platform that Fempreneurs indicates as prohibited, including without limitation, the Prohibited Products List attached hereto as Annexure A which Fempreneurs may, in its sole discretion, update from time to time upon which notice will be provided to the Seller.
16.6. All Seller personnel will be properly registered, documented, licensed and/or certified under applicable Law.
16.7. Except as otherwise expressly provided herein, the representations and warranties made in this Agreement are continuous in nature and will be deemed to have been given by the Seller at the execution of this Agreement and each stage of performance of this Agreement.
17. Control of Fempreneurs’ Website
17.1. Fempreneurs has the sole right to determine the content, appearance, design, functionality and all other aspects of the Fempreneurs Platform, including, without limitation, all content provided in connection with the sale of Products sold by the Seller through the Platform.
17.2. Fempreneurs may suspend any Product listing or display of Content or refuse to list any Products in its sole discretion and Fempreneurs may require the Seller to exclude any Products from the Fempreneurs Platform. If Fempreneurs requests that the Seller remove Products from the Platform, the Seller will make commercially reasonable efforts to remove those Products by unpublishing or retiring such Products through the Partner Portal within 2 (Two) days of such request so such Products no longer appear for sale on the Platform and the Seller will not include such removed Products on the Platform at any time unless the inclusion of such Products is specifically authorised by Fempreneurs in writing.
17.3. Fempreneurs will have sole control of any marketing of any Products on the Platform, including, without limitation, the Seller’s Products.
17.4. Fempreneurs shall be entitled, in their sole discretion, to remove and/or take down any stores or listings from the Platform if those stores, listings, Products or Services marketed via such stores or listings or the proprietors thereof act in breach of the terms of this Agreement.
18. Ownership and Use of Transaction Information
18.1. Fempreneurs will own all Transaction Information. The Seller may only use Transaction Information to further a transaction related to this Agreement, under the terms of the Agreement, the Fempreneurs Privacy Policy and applicable Law.
18.2. The Seller will not:
18.2.1. disclose or convey any Transaction Information to any third party (except as necessary for the Seller to perform its obligations under the Agreement);
18.2.2. use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes;
18.2.3. contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; or
18.2.4. target communications of any kind on the basis of the intended recipient being a Fempreneurs customer.
19. Ratings and Reviews
Fempreneurs may use mechanisms that rate or review or allow Customers to rate or review the Seller’s Products and performance as a Seller and Fempreneurs may make these ratings publicly available. Fempreneurs may also make use of syndicated product reviews. Fempreneurs will have no liability to the Seller for the content or accuracy of any ratings or reviews. The Seller will have no ownership interest in or license to use any ratings or reviews posted on the Platform unless authorised in writing by Fempreneurs.
20. Suggestions and Feedback
If the Seller or any of the Seller’s agents elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to Fempreneurs in connection with or related to the Platform, Fempreneurs will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. To protect Fempreneurs’ systems and Customers, or to ensure the integrity and operation of Fempreneurs’ business and systems, Fempreneurs may access and disclose any information Fempreneurs consider necessary or appropriate, including but not limited to user contact details, I.P. addresses and traffic information, usage history, and posted content.
21. Confidential Information and Information Security
21.1.Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information from the other Party (the “Disclosing Party”) during the term of this Agreement, and such Confidential Information will be deemed to have been received in confidence and will be used only for the purposes of this Agreement.
21.2. The Receiving Party will:
21.2.1. use the Disclosing Party’s Confidential Information only to perform its obligations and exercise rights under this Agreement; and
21.2.2. disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, contractors and affiliates that –
21.2.2.1. have a need to know the information to assist the Receiving Party with fulfilling obligations under this Agreement; and
21.2.2.2. have agreed to keep the information confidential under the terms set forth herein.
21.3. The Receiving Party will treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. The obligation of confidentiality will continue for 3 (Three) years from the expiration or termination of this Agreement, provided, however, the Receiving Party will continue to keep confidential:
21.3.1. any trade secrets of the Disclosing Party; and
21.3.2. the terms of this Agreement.
22. Term, Termination and Suspension
22.1. This Agreement will apply to the Seller from the moment of registration on or use of the Partner Portal and/or the Fempreneurs Platform and shall continue to apply for so long as the Seller remains part of the Platform.
22.2. The Seller acknowledges and agrees that Fempreneurs may amend and/or replace this Agreement at any time in its sole discretion, and by logging onto the Partner Portal, the Seller shall automatically be bound by the latest Agreement. The Seller shall however be made aware of any such amendments, alterations, substitutions, or retractions within the agreement upon logging in to the portal or by email.
22.3. Either Party may terminate this Agreement for any reason by giving 30 (Thirty) days prior written notice to the other Party.
22.4. The Seller will continue to have obligations under this Agreement after termination of the Agreement, including without limitation, the obligation to:
22.4.1. fulfil all Orders that have been accepted but not yet delivered;
22.4.2.provide Customer service to Customers who purchased Products on the Platform;
22.4.3. pay any invoices delivered by Fempreneurs in connection with the Agreement;
22.4.4. notify Fempreneurs and Customers of any recalls of its Products;
22.4.5. remit any taxes collected to the proper jurisdiction(s);
22.4.6. immediately notify Fempreneurs of any security breach that allows a third party to view, access, or otherwise compromise any Transaction Information;
22.4.7. assess returns, refunds, replacements and repairs of its Products sold; and
22.4.8. facilitate all returns, repairs and replacements that are then still covered by the CPA and its relevant or the manufacturer’s warranty.
22.5. The Parties acknowledge and agree that Fempreneurs shall be entitled to summarily terminate this Agreement should there be a material breach of the terms and conditions as detailed in this Agreement.
23. Indemnification
23.1. The Seller will defend, indemnify and hold harmless Fempreneurs and its successors, assigns, officers, directors, employees, agents, and representatives (each an “Indemnitee”) from and against any Losses arising out of or related to any third-party Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating to:
23.1.1. an actual or alleged breach by the Seller of this Agreement;
23.1.2. the Seller Site and other sales channels, the Content or the Products (including, without limitation, the offer, sale, refund, or return of Products) or any violation of Law concerning the foregoing (including but not limited to the CPA), or any actual or alleged infringement of any Intellectual Property Right by any of the foregoing, or personal injury, death or property damage related thereto or arising therefrom; and
23.1.3. any and all income, sales, use, ad valorem, and other taxes, surcharges, fees assessments or charges of any kind whatsoever, together with any interest, penalties and other additions with respect thereto, imposed by local or foreign government in any way related to the sale of the Products on the Platform, specifically excluding, however, any such taxes related to Fempreneurs ’s net income from the Platform.
23.2. Upon receipt of notice, from whatever source, of Claims against Fempreneurs for which the Seller is obligated to indemnify Fempreneurs, the Seller immediately will take necessary and appropriate action, to Fempreneurs’ satisfaction, to protect Fempreneurs’ interests concerning the Claims. Fempreneurs will notify the Seller of the assertion, filing or service of any Claims of which Fempreneurs knows, as soon as is reasonably practicable. The Seller will use counsel reasonably satisfactory to Fempreneurs to defend each Claim.
23.3. Notwithstanding the foregoing, however, if Fempreneurs reasonably determines that there may be a conflict between its position and that of the Seller in connection with the defence of a Claim or that there may be legal defence available to Fempreneurs different from or in addition to those available to the Seller, then, at the Seller’s expense, counsel for Fempreneurs will be entitled to conduct a defence to the extent Fempreneurs reasonably determines necessary to protect the interest of Fempreneurs.
23.4. If Fempreneurs, in its sole discretion, determines that the counsel provided by the Seller to defend Fempreneurs is unacceptable or that a conflict of interest exists between Fempreneurs and counsel, Fempreneurs may request that the Seller replace the counsel. If the Seller fails to timeously replace counsel, Fempreneurs may replace the counsel and, as part of the Seller’s indemnification obligation to Fempreneurs, the Seller will pay to the new counsel, or reimburse Fempreneurs, any and all fees and expenses as to the new counsel, including any and all expenses or costs to change counsel.
23.5. The Seller, in the defense of any Claim, will not, except with the prior written consent of Fempreneurs, consent to entry of any judgment or enter into any settlement with respect to such Claim.
24. Warranty Disclaimer
24.1. Neither Fempreneurs, nor its officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, that the platform, the partner portal, services provided by Fempreneurs or any service provider, or software used to provide the services will be uninterrupted, timely, secure, virus-free or error-free, and the Seller agrees that Fempreneurs will not be liable for the consequences of any interruptions or errors, including without limitation, system or software failures or other interruptions that may affect the receipt, processing, acceptance, completion or settlement of any transactions.
24.2. Neither Fempreneurs, nor its officers, directors, licensors, suppliers, employees or agents make any representations or warranties, express or implied, to the Seller concerning the sale of the Seller’s products through the platform under this agreement, and all such services provided by Fempreneurs are provided on an “as-is” and “as available” basis and made use of and accepted at the Seller’s own risk.
24.3. Fempreneurs and its employees, directors, officers, agents, licensors and suppliers expressly disclaim all warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of proprietary rights and those implied warranties arising out of course of performance, course of dealing or usage of trade concerning the Seller’s use of the platform.
24.4. Fempreneurs provides no services relating to the shipment of products, payments and the like and shall have no liability to the Seller arising from any event or default not linked to the sale of products on the platform only.
25. Limitation of Liability
25.1. In no event shall Fempreneurs be liable to the Seller or any third party under delict, contract, strict liability or other legal or equitable theory for:
25.1.1 Lost profits, lost revenue, loss of business or loss of data;
25.1.2. Exemplary, punitive, special, incidental, indirect or consequential damages or the like; or
25.1.3. For cost of cover, recovery or recoupment of any investment, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether Fempreneurs has been advised of the possibility of such damages.
25.2. In no event shall Fempreneurs ’s aggregate liability to the Seller or any third party for any claims, losses, injuries, suits, demands, judgments, liabilities, costs, expenses or damages for any cause whatsoever, and regardless of the form of action or legal theory, exceed the total referral fees paid by the Seller to Fempreneurs pursuant to this agreement during the six-month period preceding the event giving rise to such liability. The limitations of liability reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
26. Insurance, Risk and Ownership
26.1. The Seller will maintain, at the Seller’s expense, public liability, commercial general, umbrella and/or excess liability in the aggregate covering liabilities caused by or occurring in connection with this Agreement or the Seller’s business (including without limitation, product, completed operations, hijacking, overturning and bodily injury), or as otherwise required by Fempreneurs from time to time.
26.2. All such policies will be occurrence-based, will include Fempreneurs as an additional insured, and will contain a waiver of subrogation.
26.3. The Seller acknowledges that it shall retain all risk in and to the Products until the Products have been delivered with a proof of delivery signed by the Customer. Ownership in and to the Products shall pass from the Seller to the Customer when the Products have been delivered with a proof of delivery signed by the Customer.
27. Choice of Law, Jurisdiction and Venue
27.1. These Terms and our relationship and/or any dispute arising from or in connection with these Terms shall be governed and interpreted under the laws of the Republic of South Africa. Your continued use of the Website will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from any of these Terms.
27.2. In the event of any dispute arising between you and Fempreneurs, you hereby consent to the non-exclusive jurisdiction of the High Court of the Republic of South Africa (KwaZulu–Natal Division, Durban) notwithstanding that the quantum in the action or proceedings may otherwise fall below the monetary jurisdiction of that court.
27.3. Nothing in these Terms limits your right to approach any court, tribunal or forum of competent jurisdiction in terms of the CPA.
28. General
28.1. Severability
28.1.1. The provisions of this Agreement are severable from each other irrespective of the layout, headings or other aspects relating to the drafting thereof, and the Parties acknowledge that:
28.1.1.1. any provision which is or may be unenforceable for any shall, only in the jurisdiction where it has been determined to be unenforceable and only to the extent that it is so unenforceable, be treated as pro non scripto; and
28.1.1.2. the remaining provisions of this Agreement shall be and remain of full force and effect; and
28.1.1.3. it is their intention to execute this Agreement without the unenforceable provision as if they were aware of its unenforceability at the time the Agreement was concluded.
28.2. Declaration
By signing this Agreement, and/or creating an account on the Fempreneurs Platform, the Parties declare that they understand and accept the terms and conditions of this Agreement.
28.3. Entire contract
This Agreement contains all the terms and conditions between the Parties in respect of the subject matter of this Agreement.
28.4. No representations
The Parties may only rely on representations, understandings, undertakings or a commitment, stance or token as recorded in this Agreement. Therefore, a Party may not rely on any representations, understandings, undertakings or a commitment, stance, token or anything else that is not recorded in this Agreement, even if that Party claims it caused that Party to enter into this Agreement.
28.5. Cession and delegation
The Parties may not cede, assign or delegate any rights, obligations or interest in and to this Agreement without the prior written consent of the other Parties / Party, which consent shall not be unreasonably withheld nor delayed.
28.6. Indulgences
Any indulgence, extension of time or relaxation of any provision of this Agreement by a Party (“the Grantor”) shall not constitute a waiver of any right by the Grantor or prevent, limit or adversely affect the exercise of any existing or future rights by the Grantor in terms of the Agreement.
28.7. Non-variation, modification and cancellation
28.7.1. No variation, addition to, deletion from, modification or cancellation and no variation or waiver of any right in terms of this Agreement shall be of any force or effect unless it is reduced to writing and signed by the Parties or their duly authorised or appointed representatives.
28.7.2. The term “writing” shall include electronic communications and electronic mail but shall not include Short Message Service (“SMS”) messages, Instant Message (“IM”) messages, or other similar transient communications.
28.8. Stipulation for third parties
Unless it is expressly stipulated otherwise in this Agreement, no provision of this Agreement shall be interpreted to constitute a stipulation for the benefit of a third person (stipulatio alteri) which, if it is accepted by such third person, would bind any Party hereto in favour of such third person.
28.9. Good faith and co-operation
28.9.1. In carrying out their obligations under this Agreement, the Parties will act and cooperate under the principle of good faith. The Parties undertake not to perform or omit any action which will have the likely effect of delaying or impeding the implementation of this Agreement.
28.9.2. Each Party undertakes to perform all such acts, within its power and control, as may be necessary for or incidental to putting into effect or implementing the terms and conditions of this Agreement.
28.10. Force Majeure
Notwithstanding the other provisions of this Agreement, if either Party is in good faith prevented from performing its obligations under this Agreement because of an unexpected extraordinary event beyond the control of the Party concerned, including without limitation, war (declared or undeclared), acts of god, terrorism, earthquake, accident, explosion, fire or flood, such Party will promptly notify the other Party, and while so affected, the affected Party will be relieved from performing its obligations provided that, the Party affected will take all reasonable steps to promptly remedy the cause of such delay or failure if it is in its power to do so.
29. Partner Portal
29.1. The Partner is solely responsible for maintaining the security of its password for the Partner Portal and all action taken in connection with its account.
29.2. If the Partner has knowledge or suspects that its password has been compromised, the Partner will immediately notify Fempreneurs by emailing su*****@fe*********.za and fully cooperate with Fempreneurs in investigating and preventing any further breach of Fempreneurs’ systems.
29.3. Fempreneurs shall not be liable to the Partner for any Losses it may suffer because of the Partner Portal being unavailable for any reason.
30. Protection of Personal Information
30.1. The Parties to the Agreement shall fully comply with the statutory obligations contained in POPI, with which the Parties warrant that they are fully conversant at the Signature Date when Processing Personal Information obtained by the Responsible Party and such Personal Information is entered into a Record. Without limiting the generality of the previously mentioned the Responsible Party shall ensure that the Privacy and Data Protection Conditions are strictly adhered to when Processing the Data Subject’s Personal Information as outlined in Annexure ‘E‘ attached hereto.
30.2. The Parties shall comply with the security and information protection obligations equivalent to those imposed on them in terms of POPI and other applicable data protection legislation, and failing such legislation, they shall take, implement and maintain all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of the Personal Information in its possession and to protect such Personal Information against unauthorised or unlawful disclosure, access or processing, accidental loss, destruction or damage.
30.3. The Seller hereby indemnifies and holds Fempreneurs harmless from any liability whatsoever arising from the Seller’s failure to comply with its statutory obligations contained in POPI.
ANNEXURE A
Fempreneurs reserves the right to amend and update this list at their discretion and by logging on to the Fempreneurs Portal you accept these terms.
A list of Prohibited Products by category, providing descriptions and examples (but not limited to the following). :
1. Financial Products
Any products of a regulated or unregulated financial nature whether legal or illegal including Bureau de Change and investment services including high-risk security investments such as binary options, forex, and cryptocurrencies.
2. Medical Products
Any products of a regulated or unregulated medical nature whether legal or illegal.
E.g. scheduled medications that must be issued and/or regulated by a licensed medical professional.
3. Illicit Substances, Drugs, and Narcotics
Alcohol, tobacco, marijuana, cocaine, opioids etc.
4. Adult Entertainment Services
Escorts, massage parlours, adult content etc.
5. Property
Advertising the sale, rental, and investment in specific land, homes, apartments etc. incl. timeshare.
6. Telecommunications and Telemarketing Services
Mobile services including airtime and/or data, and any telemarketing services that participate in spam messaging via phone, text, instant messaging etc.
7. Holiday Club Services
Fempreneurs cannot properly test the validity, experience, and safety of such providers.
8. Pyramid Schemes and/or Services
The fraudulent system of making money based on recruiting an ever-increasing number of “investors.” I.e. The initial promoters recruit investors, who in turn recruit more investors, and so on.
9. Gambling Services
In-person and/or online gambling services that are required to be regulated.