This agreement entitles you, upon payment of the relevant fees, where applicable, to submit listings or information to www.simplythebest.co.za/, and or any of its versions hereafter referred to as Flynn Estates, provided that you abide by the terms and conditions as set out below.
"You" or "Your" means the person accepting this Agreement by clicking the check box and/or "SUBMIT," and/or any company or entity which has authorised that person to do so. By clicking the check box and/or "SUBMIT," You agree to bind Yourself and Your Company to the terms and conditions of this Agreement. This is an Agreement between You and www.simplythebest.co.za/.
This Agreement is effective as of the date You click on the check box and/or "SUBMIT."
Important clauses that limit our responsibility or involve some risk for you may be in bold.
You must pay special attention to these clauses.
DISCLOSURES REQUIRED BY SECTION 43 OF THE ELECTRONIC COMMINICATION AND TRANSACTIONS ACT 25 OF 2002 (“ECTA”). You have the rights detailed in Chapter 7 of the ECTA.
Flynn Estates discloses the following information:
- Company Name: Flynn Estates
- Telephone number: 011 704 1730
- Website address: www.simplythebest.co.za/
- Physical address for receipt of legal service: 4 Melkbos Place Bloubosrand
- Main business: Real Estate Agency
WHEREAS, Flynn Estates operates an online real estate website that, among other things, enables end users to search for real estate information about properties for sale or rent, or that have been sold or rented ("Listing Content"), and where available, connect via hypertext links to websites of real estate agencies, or, to the extent permitted herein, to websites owned or operated by real estate multiple listing services, and/or other websites authorized to display real estate information.
WHEREAS, the Listing Content received and displayed by Flynn Estates on its website includes text, data and images about individual real estate property for sale, for rent or that has been sold or rented. The Listing Content is provided to Flynn Estates directly from users or real estate agencies or website operators via a direct data feed or manual submission. Flynn Estates may also obtain the Listing Content by using Web Crawling software programs to index publicly accessible websites that have granted Flynn Estates permission to do so. Flynn Estates displays and delivers the Listing Content, together with other content and functionality derived from third party sources, to end users at Flynn Estates to assist them in their search for property to purchase or rent.
WHEREAS, You maintain, distribute, or aggregate Listing Content ("Your Listing Content") about properties listed for sale or rent with real estate companies, newly constructed housing offered for sale by home builders and or developers or by private individuals or through real estate agencies and properties available for rent or lease from property owners or management companies.
WHEREAS, You permit Flynn Estates to display Your Listing Content and to redistribute or syndicate Your Listing Content to other websites.
NOW THEREFORE, You and Flynn Estates (the "Parties") agree that the foregoing Recitals are incorporated herein by reference and made a part of this Agreement, and You and Flynn Estates further agree as follows:
1. License Grant from You to Flynn Estates. By submitting Your Listing Content to Flynn Estates, or by permitting Flynn Estates to index Your Listing Content on Your website, You grant to Flynn Estates a limited, non-exclusive, worldwide, sub licensable, royalty-free license and right (but not the obligation) to display, distribute, reproduce, modify, store, deliver and otherwise use Your Listing Content, and any updates, additions, changes or modifications thereto, provided by You, other persons affiliated with Your Company, or directly by owners, builders, or managers of the real estate parcels included in Your Listing Content in Flynn Estates 's services, and create derivate works based upon Your Licensed Content, which may be accessed by end users through Flynn Estates or any version of such, including mobile or wireless formats or applications.
Website to retrieve Your Listing Content. Flynn Estates is further authorized to
2. Flynn Estates's Services to You. In consideration for the License granted in Section 1 above, Flynn Estates agrees to provide end users who view Your Listing Content on Flynn Estates or other sites as set forth in Section 1, with the ability to contact You or Your company representatives, or connect via a hypertext link to the page of Your website on which the Your Listing Content appears, if You provide such a hypertext link to Flynn Estates.
[NOTE; Please ensure that the manner of payment return and refund policy is set out.]
3. Ownership of Flynn Estates Site Materials. As between Flynn Estates and You, You acknowledge and agree that Flynn Estates owns all rights, title and interest in Flynn Estates. This includes any and all software, programs, logos, trademarks, codes, processes, and any functionality contained in or on Flynn Estates, and all of the content accessible on Flynn Estates, with the exception of Your Listing Content and Flynn Estates newsletter content supplied by third-parties. You agree not to contest Flynn Estates's ownership claims, or disassemble, reverse engineer, license, sub-license, or re-license any of Flynn Estates at any time, or assist or enable any other person to do so, without Flynn Estates's express prior written consent, which Flynn Estates may withhold in its sole discretion.
4. Your Representations and Warranties. You represent and warrant to Flynn Estates that
5. Limitation of Liability. Subject to the provisions of the Consumer Protection Act (“CPA”) or ECTA, as applicable, IVVIT shall not be liable to You for damages of any kind based upon the display, redistribution or syndication of Your Listing Content as permitted by this Agreement, whether in contact or tort, and whether or not Flynn Estates has been advised of the likelihood of any such damages. Your sole remedy for Flynn Estates's breach of its obligations under this Agreement is termination of this Agreement pursuant to Section 7 below.
7. Term and Termination. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event the other Party breaches any of its obligations, representations, or warranties under this Agreement. Upon termination of this Agreement for any reason, the License granted in Section 1 shall terminate immediate subject to Flynn Estates's right to continue to use Your Licensed Content provided to, or indexed by, Flynn Estates prior to the date of termination as provided in Section 1.
Should section 44 of the ECT Act be applicable, or should section 16 of the CPA apply, you are entitled to cancel without reason and without penalty this agreement, within 5 (five) business days after the date of the conclusion of the agreement, subject to the exclusions in section 42 (2) of the ECT Act and the CPA.
8. Indemnity. You agree to defend, indemnify, and hold harmless Flynn Estates from any damages of any type, equitable or legal remedies, judgments, fines, or penalties, including reasonable attorney’s fees and litigation costs and expenses, asserted against Flynn Estates by a third party based upon allegations that if proven to be true would constitute a breach by You of any of Your representations, warranties, or obligations under this Agreement. In the event of such a claim or demand subject to this Section, Flynn Estates shall provide You with prompt written notice of such a claim or demand, and shall reasonably cooperate with You in the defence or settlement of any claim. You shall have the right to select and retain legal counsel, at Your sole expense, to defend or settle and claim or demand subject to this Section, provided that Flynn Estates shall have the right to retain its own counsel, at its sole expense, to monitor the defence or settlement of any claim. You shall have the sole right to settle and compromise any claim or demand, provided that Flynn Estates shall have the right to consent to any settlement or compromise that materially alters Flynn Estates’s rights under this Agreement.
9. Assignment. You shall not have any right to assign this Agreement to any third party without the prior written consent of Flynn Estates. Flynn Estates shall have the right to assign this Agreement without Your consent to (1) a subsidiary, parent or related company of Flynn Estates, (2) as part of the sale of all or substantially all of Flynn Estates's assets to a third party, or (3) as part of a merger or acquisition of Flynn Estates by a third party.
10. Independent Contractor. The Parties agree that the relationship between them is an independent contractor relationship, and neither Party shall be deemed to be an employee of the other Party.
11. Governing Law; Jurisdiction; Venue; Attorney’s Fees. The Parties agree that this Agreement shall be governed by the laws of the Republic of South Africa without regard to any choice of law rules, and that the Parties duties and obligations under this Agreement may be carried out using electronic media and electronic stored information. The Parties agree that any suit or petition filed by one Party against the other Party to enforce or interpret this Agreement shall be filed in the South Gauteng High Court in the Republic of South Africa, and the Parties agree to waive any objection to the exclusive jurisdiction of such court. The prevailing Party in such action or petition shall be entitled, in addition to any other relief deemed appropriate by the court, to an award of its reasonable attorneys' fees, costs, and litigation expenses incurred in the prosecution or defence of such action.
12. Confidential Information. You and Flynn Estates agree that "Confidential Information" shall mean any and all information identified in writing by the other as "Confidential" or "Proprietary." Confidential Information shall also include any information about a Party's financial status or condition, its technology, software applications, source code and object code, actual or potential customers, clients, or subscribers, present or future business strategies or plans, or actual or potential business partners, licensors, licensees, or joint venturers, whether or not such information is specifically is designated as Confidential Information by a Party. A Party shall not disclose the Confidential Information of another Party to any third person or entity without the express written consent of the other Party, for so long as this Agreement is in effect and for an additional two year period following termination of this Agreement. Neither Party will make use of the other Party's Confidential Information except as permitted under the terms of this Agreement. Each Party shall take steps to protect the Confidential Information of the other party that are at least equivalent to the steps taken by that Party to protect its own Confidential Information but in any case not less than reasonable care.
These confidentiality obligations shall not apply to any information which:
(i) is or becomes available to the general public other than through a breach by the receiving Party;
(ii) is already known to the receiving Party before disclosure by the disclosing Party;
(iii) is developed through the independent efforts of the receiving Party;
(iv) the receiving Party rightfully receives from a third Party without restriction as to confidentiality or use, or
(v) is required to be disclosed by operation of law, or pursuant to a subpoena issued by a court, governmental agency, or duly authorized dispute resolution entity.
13. Force Majeure. Neither Party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, terrorism, wars, strikes or other labour disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond such party's reasonable control.
14. Prior Agreements Superseded. This Agreement supersedes any prior agreement between the Parties, which prior agreement shall be deemed null and void upon Your acceptance of this Agreement. [Note: Is this clause applicable?]
15. Description and Delivery of Listing Content. If You are a private individual or estate agency or franchise group and agree to provide Flynn Estates with a data feed containing Your Listing Content, Your Listing Content shall consist of the fields of data available to You on the website.
In addition, all information fields that You permit any other person or entity to use or publish via the Internet or other electronic delivery system shall be provided under this Agreement along with permission to use and publish under the terms of the Agreement.
You shall deliver Your Listing Content in the following manner:
Your Listing Content file may be compressed using the ZIP data compression format where appropriate. In addition, Flynn Estates has the right to index Your website in a manner amenable to the technical departments of both Parties to obtain some or all of the required Listing data, such as thumbnail images.
You shall deliver Your Listing Content according to the following delivery schedule: You shall deliver an update of Your Listing Content as frequently as possible and at least on a daily basis, a minimum of six (6) days and preferably seven (7) days per week except on national holidays. The delivery must be completed before 8:00 AM each day. Photos should be delivered daily with Your Listing Content, and must be delivered/updated at a minimum of once weekly.
The delivery schedule may be modified from time to time as required by Flynn Estates on prior written notice to You.
If You are not able to comply with the Listing Content format, delivery mechanism, or delivery frequency as set forth above, You shall immediately notify Flynn Estates (or its designee) to arrange alternative methods for delivery of Your Listing Content.
You will provide Flynn Estates with a technical contact that can be reached via e-mail and telephone to resolve issues as they arise.
In the event that You wish to add or remove fields, change the format or possible values of a field, or change the way that data that is delivered, Your technical contact will notify Flynn Estates's technical contact to discuss such proposed changes. The proposed changes shall be made upon mutual agreement of the Parties.
Flynn Estates shall replace or update Your existing Listing Content with Your most recent Listing Content at least every forty-eight (48) hours.
You further agree to update each of Your listings at least once every thirty (30) days, failing which, the listing will be deleted from Flynn Estates and its affiliated websites.
16. Modification Provision- Flynn Estates reserves the right to change or modify any provisions of this Agreement, at any time in our sole discretion and without liability to you. Any such changes or modifications will be effective immediately upon posting of revisions Flynn Estates. By continuing to (1) submit Your Listing Content to Flynn Estates or (2) permit Flynn Estates to index Your Listing Content, following the posting of such changes or modifications, constitutes your acceptance thereof. Therefore, you should frequently review this Agreement on Flynn Estates in order to understand the terms and conditions applicable to your submission of Your Listing Content to Flynn Estates and your permission to allow Flynn Estates to Index Your Listing Content. If you do not agree to any changes or modifications to this Agreement, your sole recourse is to stop submitting Your Listing Content to Flynn Estates and/or permitting Flynn Estates to index Your Listing Content.
17. Severability If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.
Updated: 12 September 2012
Please direct enquiries with respect to these Terms & Conditions to firstname.lastname@example.org